A Stated Meeting of the Society was held at No. 25 Beacon Street, Boston, on Thursday, 27 February, 1902, at three o’clock in the afternoon.
In the absence from the Commonwealth of both President Kittredge and Vice-President William Watson Goodwin, Mr. John Noble was called to the chair.
After the Minutes of the last meeting had been read and approved, the Corresponding Secretary announced that letters had been received from the Reverend Morton Dexter and the Reverend James Hardy Ropes accepting Resident Membership.
Mr. Francis Apthorp Foster, of Cambridge, was elected a Resident Member.
Mr. Frederick Lewis Gay called attention to an entry in the Boston Selectmen’s Records,342 under date of 25 August, 1701, which notes the request of “Lawrence Brown, a Limner, . . . to be an Inhabitant of this Towne wch is granted On condition that he give Security to Save the Town harmless,” and stated that he hoped to submit, at a subsequent meeting of the Society, a communication on the subject of Portrait Painters in Boston before 1725.
The Chairman then addressed the Society in the following language: —
In the absence of President Kittredge, it has devolved on me to announce to the Society the death of our associate, Professor Thayer, one of the oldest and most honored of our Resident Members. On the fourteenth of this month, at his home in Cambridge, death came to him in his seventy-second year, suddenly and painlessly, in the full maturity and undiminished vigor of his splendid powers.
I shall not speak of him in his more public career, — of that early promise so fully and brilliantly fulfilled; of his standing while at the Bar as a counsellor of strength and sagacity, and as a learned and profound lawyer; or of the many preferments offered, and declined; or of his share, as a member of its Faculty, in putting the Harvard Law School in the foremost place it holds to-day; of his numerous writings in so many fields; of his legal monographs, — the final statement of the existing law, or the prophetic enunciation of those principles upon which must rest the law of the coming time; of his longer and more elaborate works, — monuments of legal learning and research; or of his position as an expounder of Constitutional Law, — second to none in this Republic, and his reputation not confined to it, but international; or of that abiding fame as a jurist which outlives the fleeting memory of the lawyer.
I need not speak of his connection with this Society, — one of its Council, a Vice-President, a valued contributor to our Transactions, and a member keenly alive to all its interests, loyal and faithful in any and every service.
I will not try to recall his engaging qualities, — the warm-heartedness under that outward reserve, the delicate and irresistible humor, the clean-cut repartee, the pertinent reply, the attractiveness of his conversation, the charm of manner, and that indefinable something which made all who met him feel that here was a man whom it was worth while to know.
I will not speak of him as a citizen, — public-spirited, interested and alert on every question of the day; of his high sense of personal and professional and public honor, his purity and elevation and force of character, or of all that characterized him as a man among men. All this, and more, I leave to others; but to some of us, the older men, his death comes rather as a personal bereavement. We think not so much of what he has done as of what he was, — more than all, of what he was to us. It is the friend, — the true, loved, life-long friend, who is first in our thoughts and in our memory to-day. Fewer and fewer, as the years go by, are those whom we held as friends fifty years ago, and have held as such to the days when we begin to reckon by scores as much as by years.
Fewer and fewer are those who knew with us the College of the fifties, who shared in the simple, fresh college life of that time, now almost forgotten, or, in fact, unknown in the stress and distraction of the University of to-day; those who felt the traditions and the spirit of that elder day, which made Harvard what it was then, and gave it the capacity to be what it is now; those whom the old College Clubs bound together in a peculiar closeness, and where the associations of those early years have not yet been outlived. Fewer and fewer are left of those who have so long kept step together in the march of life, closing up the ranks, and pushing on to the mustering out. So, as one link after another drops out from the ever shortening chain, as each old friend goes, the first thoughts that come to us, and any words we may speak of them, take a personal turn, which we cannot escape, if we would, and we leave it to others to tell the story of the life that has closed.
The Chairman then said: —
Naturally, to-day, by common consent and one impulse of feeling, our meeting takes on the character of a memorial meeting. At the request of the President, on behalf of the Council, Mr. Davis has prepared a Minute for the Records which I will ask him now to read.
Mr. Andrew McFarland Davis presented and read the following Minute: —
On the fourteenth of February, 1902, James Bradley Thayer, the Junior Vice-President of this Society, died suddenly at his home in Cambridge. He was one of the Founders of the Society and was a member of its first Council, his term of service at that time being for two years. In view of the great and continued interest which he manifested in our welfare, and of his many services in our behalf, for which the Society has already on one occasion expressed its sense of obligation by a formal vote of thanks, it has been thought best by the Council to submit to the members of the Society the following expression of our estimate of the man, of our gratitude for his services, and of our grief for his loss, in order that it may find a permanent place upon the Records of the Society.
At the time of his death, Mr. Thayer was actively engaged in what may properly be regarded as the great work of his life. Whatever reputation he may have gained earlier as a practitioner at the bar is subordinate to the greater renown which attaches to his name as one of the leaders in the corps of lecturers at the Harvard Law School which has made that institution the foremost of its kind in the world. It was in the prosecution of his daily labor as a teacher of Constitutional Law that he earned for himself a reputation which has found its measure in the statement made by one of his eulogists that he was the leading constitutional lawyer in the country. The comparatively narrow field in which he thus laid the foundation for the well-deserved renown which attached to his name, was enlarged through his contributions to the legal literature of the day, and in addition thereto he became widely known among the friends of the Indians scattered throughout the country and received from them grateful recognition for his many efforts to ameliorate the condition of these victims of oppression, and for his attempts to improve the laws under which the wrongs worked upon them had been accomplished. To have done all this means that he was a man of untiring industry. The science of the law is not of such a nature that he who would expound it can ever cease his studies. The demands for constant research and unremitting effort made upon a teacher in such a school are persistent and continuous. An earned reputation brings with it no release from toil. When, therefore, we say that Professor Thayer was actively engaged in teaching at the time of his death, it necessarily follows that he was a busy man; that he had no period of rest or relaxation; that up to the very end the demands upon his time and his intellect were such as might well deter a younger man from undertaking similar work.
It was while engaged in this way, with every moment of each day apparently occupied with some pressing duty, that he came to us, bringing with him a breezy enthusiasm and a cordial sympathy hardly to have been expected from one whose time was so fully taken up and yet by no means surprising to those who knew the man. Nearly all of his life had been spent in the immediate vicinity of Boston, either at Milton or Cambridge, and his knowledge of the men who were eligible to this Society was of very great assistance to us. When elected to the Council, he said that his stated engagements were such that he could not be relied upon to attend meetings, but that he would gladly do what he could to help the Society along. Those of us who had occasion to consult him during the period of his service as a member of the Council will remember how cordial was his welcome, how cheerfully he set aside the work which was interrupted by the visitor, with what alacrity he would clear a pathway through the books scattered round the floor of his study, and remove those piled in the chair which he wished his guest to occupy. There are degrees of cordiality with which busy men welcome intruders. No man who has appealed to a Cambridge professor for assistance but has come away with a feeling of wonder that these diligent workers are so willing to share with amateurs their hard-earned professional knowledge. Yet in a place where men are accustomed to be generous, the reception by Professor Thayer of one seeking aid was conspicuously cordial. He made it evident that he was not only willing to give help but that he took actual pleasure in doing so. Under these circumstances, welcomed with a cheery smile as we always were, freely helped in the solution of the point under discussion, and even urged to stay longer when we rose to go, those of us who consulted him in behalf of the Society were deeply impressed with the benefits that we derived from these visits, and for that reason submitted the vote of thanks for his services which was passed at the Annual Meeting in 1894.
It has been said that the suggestion of the name of Edward Wheelwright for President was an inspiration. That suggestion came from Mr. Thayer at one of these consultations. Thus, while we are called upon with others to mourn the loss of the genial companion, the much beloved friend, the learned teacher and the prominent citizen, we have special cause for honoring the memory of this trusted and willing adviser.
He had nearly reached the grand climacteric in his life when he joined this Society, and yet there was nothing in his appearance when, at the age of seventy-one, he died, to indicate any waning of his powers. Conscious that he had some trouble in the region of his heart, he had, by the advice of his physician, for a few years before his death avoided exercise of a certain character, but, except for this slight change in his habits, there was no outward indication, either in his personal appearance or in his manner, that he was the victim of incurable disease. He might have been relied upon, to the last, to make a witty speech at a dinner, or to take upon his shoulders the burden of conversation at a gathering of friends. Always bright, always cheerful, always resourceful, always sympathetic, his kindly spirit made for him friends at every turn, and when, in the midst of a blinding snowstorm, the funeral services were performed over his body, Appleton Chapel was crowded with an audience whose presence at such a time bore testimony to the affection with which his memory was cherished. Not only were the students who were under his special instruction there, but nearly every member of the Law School joined the procession which braved the elements on that inclement day, thus indicating in a remarkable way their respect for their teacher.
In person, he was a conspicuously fine looking man, and his gentle voice and engaging manners always made a favorable impression. His affectionate disposition, fortunately, found outlet in the happiest of domestic circumstances. He had lived to see his two sons successfully established in life, and. his two daughters, the one with a profession which furnished her with the means of complete independence, the other the mistress of a happy home near his own. If he himself had controlled events, he would probably not have asked that it should be otherwise ordered, except for the separation from his devoted wife, towards whom our sympathy goes forth in her solitary march to the grave.
Mrs. Thayer was a daughter of the Rev. Samuel Ripley, for many years the pastor of the church at Waltham. The Rev. Ezra Ripley, her grandfather, acquired title to the spacious residence at Concord which Hawthorne has made famous as the Old Manse. Thither, in 1846, Samuel Ripley moved with his family, and thus the intimacy which existed between the Hoars, the Emersons and the Ripleys became cemented. It was natural that when Mr. Thayer was admitted into the Ripley family circle, he, too, should become the friend of Ralph Waldo Emerson and of Rockwood Hoar. To these circumstances we are indebted for two publications entirely outside the volumes devoted to professional labor and the occasional pamphlets containing articles from reviews or addresses to societies. One of these contains an account of an overland trip with Emerson to California. It was originally prepared simply to be read at one of the clubs to which the author belonged, but through persuasion he was induced to publish it. Although the account of the trip is not based upon any daily journal entries, it is faithful in its record of the sayings of the great philosopher to an extent that would have made Boswell envious if he had seen it, while it has the additional advantage of descriptive narrative of a high order of merit, the whole being flavored with a delicate sense of humor which shows that the writer was keenly alive to sentiments of that nature. The reader will turn the last page of this little volume with sorrow that there is not more of it, and regret that the author did not go farther afield in that region of literature. The other was a biographical sketch of the life of the Rev. Samuel Ripley, written at the request of Judge Hoar while stretched upon his dying bed. Such a request, Mr. Thayer says, could have but one answer. As there was no personal acquaintance between the author and his subject, the life is mainly portrayed through extracts from letters. In the text, however, we can from time to time see gleams of the author’s ever-present sense of humor; never provokingly apparent, never ostentatiously displayed, but subtly indicated for those whose sympathies can lift the veil. In his summing up of the characteristics of Samuel Ripley, he comes so near describing himself that, with but slight alteration, we can adopt his words for our conclusion: —
What stands out in all the accounts of him which have ever heard, is the image of an . . . affectionate, generous man, devoted to the duties of his calling, and singularly disinterested, making no personal claims, unsparing in his acts of personal kindness and generosity; yet prudent in managing his affairs, firm in his moral principles and rigidly conforming to them in his own practice; fond of society, full of sympathy and heartily enjoying the companionship of his friends; liberal minded, of sound sense, a clear and quick intellect, and a hearty appreciation for what is best in literature and personal character.
The Minute was unanimously adopted by a rising vote.
The Chairman: —
I will first can upon Mr. Thorndike, a classmate and one of the oldest and closest friends of Professor Thayer.
On one of Thayer’s latest appearances at our monthly meetings — perhaps it was his very last — he came to say a few words in memory of a classmate and life-long friend. What he said was not a eulogy, but it was so tender, so appreciative, and at the same time so impartial, so heedful not to claim anything for his friend that was not his due, that when the meeting was over we gathered round him to say, “Please outlive us, if you will only speak like that of us.” It was with the recollection of that occasion in my mind, that when I got the request to say something to-day, I forgot for the instant, as I have twenty times since his death, that it was himself lying dead, and the thought came to me, — “Why, Thayer would be the man for that.”
I am at a loss what now to say that would seem to him or to you the fitting word. If I only spoke what has lain uppermost, or rather deepest, in my mind since the event that has made such difference in the lives of some of us, it might seem too personal for printed record, even in a fraternity as intimate as ours. It would be the mere recalling of a half century of heart-felt regard, of a quarter century of familiar companionship, of neighborhood in Cambridge, of the clubs in which we met, of hours in the woods or on the shore of Mt. Desert, of talks in one or the other of his pleasant habitations, of books read together, of books received as gifts, always somehow significant of the giver, and always inscribed, — “In affectionate remembrance,” to which, perhaps, would latterly be added, — “consenescenti consenescens.” Only one of us is now growing old. The other has become forever young.
I should not venture even thus far to allude to personal relations, were it not that in a way they indicate Thayer’s capacity for loving and being loved. I can think of no one — and I say this not as a phrase — with whom, in this respect, to compare him. He had hundreds of friends and not a single enemy. It would be easy to catalogue the qualities that made him so attractive; the sweetness of disposition that permeated his whole being; the nobility of character that commanded the respect and esteem of all; the cordiality of manner, not, as with some, a varnish, but the outward and visible sign of an inward and spiritual grace; the beauty of his presence; the thoughtful kindness of a thousand daily acts. To all this must be added another indefinable something, that drew men and women to him. It is the fashion to talk of personal magnetism; but that much-abused word may safely be left for the great beings who can bring down the house by public speech or ride at the head of popular followings. It would be a pity to use it on Thayer. If he were a woman, one might find a word. We sometimes credit attractive women with a quality quite apart from grace of feature or mind or disposition, a quality as incapable of definition as abstract beauty. It is charm. If one were to say that Thayer was a charming man, the adjective might provoke a smile. But the substantive is safe, and there was so much of the feminine in him, that one may well say that what most impressed people was his in variable charm. It must not be supposed that his sweetness of temper prevented him, on occasion, from speaking very plainly. If he fell upon anything paltry or vulgar or pretentious or discourteous, he was very outspoken; and paltriness had for him a pretty broad significance. The line of the life worth living was for him very closely drawn. In a certain way, he was more exclusive than most persons who have to deal with the world as it is. He associated freely and kindly with all sorts and conditions of men, but the people whom he liked to have about him were those whose standards of life and cultivation and taste were the same as his, — men who liked the same books and thought the same thoughts with himself. For a man successful in business or politics or general affairs he cared little, unless the man was something beside this, and a great deal beside. Such men, for him, were cheap, — a favorite expression, — and he was clairvoyant in detecting a cheap man at a glance.
The tranquil, almost eventless, always happy course of Thayer’s life I will not try to follow in detail. It must be left for what Memoir we may hereafter place upon our record. Of his boyhood in Northampton we get pleasant glimpses in his delightful sketch of Chauncey Wright, the earliest and perhaps the dearest friend of his childhood and youth. This sketch, by the way, furnishes one of the best examples of what I have said of Thayer’s unwillingness to indulge in over-praise or to conceal the shortcomings even of those most dear to him. Nil nisi bonum was never a maxim of his, either of the living or of the dead, and I have sometimes thought that his sensitive conscience leaned too far the other way.
In college he made his mark at once, not merely by scholarship, but by the ready wit which was through life one of his happy traits which linger in our memory. His rank at graduation was not especially high, as he was obliged to eke out his straitened means by months of teaching. But he was of course a Phi Beta, he was Class Orator and he was the best beloved man of the class.
Then came some years in which the study of the law had still to be provided for by intervals of teaching, and then, upon his admission to the bar in 1856, followed seventeen years of routine practice of the law in various offices and professional connections. He was an able and successful advocate and counsellor, but the scholarship of the law, as distinguished from its practice, had already laid hold of him. He became so well known as a brilliant and learned writer for the law Reviews and as a valuable coadjutor in editions of important legal works, that in 1873 Harvard College appointed him Royall Professor and the great work of his life began. I must leave to others, more competent than I, to set forth the importance of this work. The happy effect of his devotion to his great task upon the minds of his students, the position which it gave him among the great jurists of America, the companionship into which it brought him with the learned jurists of other nations, — all this I, in no sense a legal scholar, know rather by what has been said of him by others, than by my own too scanty reading of what he himself has written. One thing I may be permitted to remark upon, though it must be obvious even to the most unlearned and cursory reader. It is the high plane from which he always speaks. It is not only what the law is, but what it ought to be, not only what judges are, but what they ought to be, that he tells us. He has no undue respect for persons, even if they be judges and contemporaries. He speaks ex cathedra, as the critic and instructor of courts as well as of students, and comments not merely upon judgments but upon the men who make them. And where he disapproves it is in very plain words. Such phrases as “An opportunity sadly misimproved,” “An opinion singularly wanting in judicial quality,” “An opinion marked by very loose thinking,” “An opinion credited with an amount of learning and research to which it can lay no claim,” are common. But all this I must leave to others.
I must also not stop to remark upon his friendships with the best, and best known, men of the day in other spheres than the law, — Emerson, Lowell, Norton, Forbes, — or upon his own literary work outside of the law, set forth with such grace and mastery of language.
Let me only come back for a moment to his home life, not, indeed, to the lovely companionship of his own domestic circle, — into that I must not even here intrude, — but to the simplicity and dignity of his hospitality, whether at Cambridge or Bar Harbor. It was at Mt. Desert, of course, that this was most marked, because there the attractiveness of the region was added to that of himself and his household, to bring him welcome guests. And it was there that I best knew it. His house was as simple and unpretentious as himself. In later years it stood in its modesty with the houses of rich men in sight in all directions, and he used to tell with amusement of hearing a professional guide, who was displaying the show-places of the neighborhood to a tourist party, say as he passed, “Now here is the place of a man of moderate means.” Yes, but the means, though moderate, were sufficient to bring into that charmed circle, for a week or a day or a meal, many people worth knowing and listening to, and the table-talk over a joint and a pudding was higher and finer than I fancy it sometimes is at the table of millionaires.
Here let me stop. I have said little of the purity, the truthfulness, the moral elevation which made the man what he was. That was summed up in all that was said at his impressive funeral service, from the words Integer vitae scelerisque purus, with which it began, to the words —
Lord of himself, though not of lands,
And having nothing, yet hath all,
with which it ended.
The Chairman: —
Next, I will call upon Mr. Williamson, another member of the Class of ’52, which will round out its fiftieth year next Commencement.
Mr. William C. Williamson then read the following Sonnet: —
17 February, 1902.
The college elms were white with falling snow
When through their aisles we bore him, friend and friend,
With lingering steps, attending to the end
A life which glorified this life below.
Rank upon rank his pupils came, to show
The honors which on Learning’s courts attend,
And now, at last, the triumphs: which transcend
All tears of sorrow, and all voice of woe.
With keen, bright blade this knight could meet and dare
The subtle masks of sophistry; his art
Was truth; unfaltering, dauntless, void of wrong;
Sunshine was on his lips and in his heart;
Pure, valiant, modest, helpful, wise and strong —
Such was thy path through life, beloved Thayer.
The Chairman: —
I will now ask Mr. Hall to speak, — Professor Thayer’s sometime minister, and one of that little group of college contemporaries who have met together regularly for many years till only half the original number are left.
The Reverend Edward H. Hall paid this tribute to the memory of Mr. Thayer: —
I have no other claim to speak for Mr. Thayer than that of a friend; though that alone will entitle me, I trust, to add a few words of personal reminiscence. Our acquaintance goes back to college days. We were not classmates, but being in successive classes we met not infrequently on the common ground of college gatherings, where I remember him chiefly as one of a little circle which even in those days seemed an unusual one, and which now, in view of the high distinction attained by so many of its members, has become noteworthy indeed. His classmates are best qualified to speak of his college career, and it is not for me to dwell upon it. If there were any contribution which I should be inclined to add to these youthful memories, it would be one which may seem too trivial for the occasion, yet which to my mind is sufficiently characteristic of the man to be rescued from oblivion. At one of our social societies where, as in other college gatherings, fun was wont to run riot, a certain part of the literary proceedings had been allowed for some years to fall into that sort of grossness which young men are apt to mistake for wit. When the Class of ’52 came into control, it was resolved to cleanse the Augean stables, and that service was left to Mr. Thayer. It is pleasant to remember how thoroughly he did the work entrusted to him, and how the tone of the paper was freed at once from all suggestion of indecency, while a vein of such inimitable humor was imparted to it as to satisfy the most exacting demands. It was one of those little college triumphs which are quite as important as the more conspicuous successes known to the world.
His friendships, as I have intimated, were of a kind to test his intellectual qualities, lying as they did among companions eminent in various callings, some of them specialists in history, philosophy or literature, yet who found in Mr. Thayer an altogether worthy comrade. I think hardly any man has gone out of Cambridge bearing more thoroughly the old-time stamp of Harvard College. He had marked literary culture, though not following a distinctively literary career. The list of his books is not numerous; yet at almost every period of his life, quite apart from his professional productions, has appeared some important contribution to the field of letters, bearing always the same fine quality. These began as early as 1854, within two years of his graduation, with a biographical essay on Fisher Ames, contributed to one of the collections of that clay published by the Putnams, entitled Homes of American Statesmen, — an appreciative estimate of a distinguished life, and an admirable characterization of it. About 1884, appeared the pamphlet already alluded to, A Western Journey with Mr. Emerson, followed soon after by brief but delightful sketches of two of his kindred by marriage, Mrs. Samuel Ripley, and the Rev. Samuel Ripley of Waltham, — sketches drawn with great delicacy of touch and much appreciation of the type of character produced by our earlier New England life. In all these writings one is struck with a noteworthy literary grace. So marked indeed was this tendency towards what was formerly called belles-lettres, that twenty years after his graduation, during which time he had been immersed in the practice of a profession which often takes its votaries far away from literature, Mr. Thayer was offered a professorship in the English Department of Harvard College; an appointment which he declined, to accept soon after his final position in the Harvard Law School.
My own more intimate acquaintance with him began when I went to Cambridge, in 1882, as pastor of the First Church, where he had long been an attendant. I found him then in the midst of his professional work. He seemed to me the busiest man — the most persistently busy — that I had ever met. Go into his study, finding your way as you could among the volumes which were piled in every corner and crowded every space, as if the multitude of his books could not be too near to his hand, and there were no time to arrange them, and you felt yourself in a studious presence which it was unkind to disturb. You hesitated always to intrude upon such a sanctuary, yet nowhere were you surer of a cordial welcome, and no memories are more precious than of the stolen conversations held in those narrow quarters, on which Emerson and many legal worthies looked so benignantly down. However one might protest against this seclusion within his study walls, it seemed to interfere but little, after all, with his participation in social gatherings, where he was so prized and honored a guest. No more did it prevent his interest in public affairs. He was in many respects the ideal citizen, bringing to public problems not merely the sentimental concern which creates so many enthusiasts, nor grand ideals alone of the ends at which the Government should aim, but also the intelligent insight which discerned the crying need of the hour, and was ready with fruitful counsel.
I might be expected to speak a word of Mr. Thayer’s religions life, though it is hardly the place to dwell upon that at length. It is enough to say, that in those high themes which concern us all, but which are not always approached understandingly by the devoutest laymen, one found in Mr. Thayer a profound and thoroughly appreciative interest, and an intelligent acquaintance with whatever progress was being made in the world of religions thought. While humorously alive to the shallowness or grotesqueness which sometimes finds its way into sacred places, no one was ever more loyal than he to all that religion or the church stands for in the community.
Of his personal qualities I need not speak, they have already been touched upon so well. Those who have known Mr. Thayer will not soon forget the simplicity of character, the refinement, the social tact or the conversational charm which illustrated his life, and made him so widely beloved.
The Chairman: —
Two of Mr. Thayer’s associates in the Harvard Law School Faculty are here, — Judge Smith and Professor Ames. Shall I call upon you first, Judge Smith?
The Honorable Jeremiah Smith spoke as follows: —
The work by which Professor Thayer will be best known to the next generation of lawyers is his Preliminary Treatise on Evidence at the Common Law. What is the impression which that book would make upon a legal reader who is an entire stranger to the author?
One of the first impressions would relate to the character of the writer. The reader will undoubtedly say that the man who stands behind this book must have been a person of singular modesty and remarkable candor. Here is a man who puts forward original ideas and important views without flourish of trumpets or claiming the merit of discovery; a man who never overstates the case in support of his own theories, and is always careful to give full space and due weight to the argument opposed to his own views. Every page bears evidence of the quality which Martineau calls “intellectual conscientiousness.”
But the competent lawyer who reads this book in the next generation will not stop with the conclusion that it was the work of an honest man. He will say that it proceeds from an intellect which is both profound and patient. He will praise not only the substance, but also the arrangement of the topics. Every brick in the edifice is laid in its proper place, and every brick was carefully rung before it was laid. There was first a careful investigation of authorities; and then a re-examination of the subject as if it were a new matter.
Professor Thayer goes straight to the fundamentals of the topic. He does not content himself with repeating stereotyped formulas, nor is he satisfied with half solutions of difficulties. On the contrary, he gets behind the ordinary explanations. He does not fall into the mistake, alluded to by Fitzjames Stephen, of supposing that the rules of evidence “had an existence of their own apart from the will of those who made them.” Instead, he takes us back to the very birth of these rules, and shows when, why, and how each of them came to be. Nothing can exceed his thoroughness in this respect. I know of nothing which has ever been written on the subject which lets in such a flood of light, nothing which so well brings the student to the right point of view, as some passages in this treatise. Take, for instance, the statement (page 264) that the “excluding function is the characteristic one in our law of evidence;” or, as he puts it in other words (page 266), the rejection, on practical grounds, “of what is really probative” is “the characteristic thing in the law of evidence;” which, as he felicitously adds, stamps it “as the child of the jury system.” Or, again, take his comment on the familiar Latin maxim which briefly tells us that questions of law are for the judge and questions of fact for the jury. Professor Thayer says that this maxim “was never true, if taken absolutely” (page 185). No doubt it is only fact which the jury are to decide (page 187), but there never was any such thing as “an allotting of all questions of fact to the jury. The jury simply decides some questions of fact” (page 185).
Nor would the reader stop with admiring the thought displayed in the treatise, or with the conviction that the book was the work of an honest man and a profound intellect. He would also admire the style, the words and phrases in which the thoughts are expressed. The writings of Professor Thayer have, in that respect, a charm which finds its closest recent parallels in the judicial opinions of Lord Bowen and the legal discussions of Sir Frederick Pollock. Just here let me add that the character of a man has a great effect upon his style as an author. We say of Professor Thayer, as has been said of Chief-Justice Marshall, that his most marked and distinguished personal trait was simplicity, using that term in its highest and best sense. Dean Swift tells us that faults in style are, nine times out of ten, owing to affectation rather than to want of understanding. When men depart from the rule of using the proper word in the proper place, it is usually done in order “to show their learning, their oratory, their politeness, or their knowledge of the world.” “In short,” says the Dean, “that simplicity, without which no human performance can arrive to any great perfection, is nowhere more eminently useful than in this.” No motives of vanity or display could ever be attributed to Professor Thayer.
But why did we have from Professor Thayer only a Preliminary Treatise? Why did he spend his strength on that, instead of at once putting forth a practical treatise on the Law of Evidence as now administered by the courts? The answer is to be found in the Introduction to the published work; and it marks both the honesty and the thoroughness of the man. Many years ago he began to write a practical treatise; but after he had made a beginning, he found the need of going largely into the history of the subject, and also of making a critical study of certain related topics which overlie and perplex the main subject. He went into those examinations, he spent an immense amount of time upon them; and these tasks occupied all the spare moments of his remaining years. The results are gathered in the published volume, — a work of infinite value, which, if he had shrunk from undertaking it, would not have been achieved at all during the present generation. At the conclusion of the Introduction, he said: “I have a good hope of supplementing this volume by another of a more practical character, . . . giving a concise statement of the existing Law of Evidence.” But this hope remains unrealized. “The ploughshare is left in the furrow.” The dream of his later years is unfulfilled.
While the profession is grateful for what our friend has given us in the way of legal authorship, yet lawyers will ask each other: Why wass not more work completed in all these years and given to the world; why were not his wider plans of book-making fully carried out? To these questions more than one answer can be given. First: Professor Thayer had an absolute horror of what some one calls “immature authorship and premature publication.” We may well apply to him some of the words which Stuart Mill uses in reference to John Austin: “He had so high a standard of what ought to be done, so exaggerated a sense of deficiencies in his own performance,” that he accomplished less in the way of authorship than he seemed capable of; “but what he did produce is held in the very highest estimation by the most competent judges.” Professor Thayer is fully entitled to the encomium which the officiating clergyman, at the funeral of Dr. Bishop, pronounced upon that distinguished jurist: “No page, no line, no word ever left this man’s hand for the printer, until it was as perfect as he had power to make it.”
Another reason for the failure of Professor Thayer to accomplish more in the line of legal authorship is one that is most creditable to his kindly and helpful nature. He repeatedly, we might almost say daily, turned aside from his own work to render assistance to other writers, often to those whose subjects were entirely outside of law. His services as a critic and reviser were frequently sought by friends, and were always cheerfully given. When a manuscript had received the benefit of his revision, it was reasonably certain to be in good taste and in good English. A list of the works whose authors are indebted in this way to Professor Thayer would show why he had not more time for his own books. Instead of concentrating his energies on attaining fame and fortune for himself, he preferred to pause by the wayside in order to render unpaid service to his friends. Those who are familiar with a certain memorial poem of Whittier’s cannot but think of the lines —
All hearts grew warmer in the presence
Of one who, seeking not his own,
Gave freely for the love of giving,
Nor reaped for self the harvest sown.
Professor Thayer’s services as a teacher of law can be best described by those who have been his pupils; and one of them will speak of him in the Harvard Law Review; but a few words may be said here. He made teaching his first object. No matter what other work he had on hand, no matter how many previous classes had been carried by him over the same ground, he always made careful preparation for each new meeting of the class. In one respect our friend’s innate modesty may have been a disadvantage to him as a teacher. I suspect that it sometimes led him to refrain from putting due emphasis on his own original views; and this may have prevented the poorer part of the class from fully appreciating the intrinsic importance of those views. But he kept steadily in sight the salient points and fundamental distinctions, and these were generally grasped and retained by the better men. In this connection I might cite the testimony given to me before Professor Thayer’s death by one of his former pupils, who had been out of the Law School seven years. “When we were in the Law School,” said he, “we sometimes complained of lack of definiteness on Professor Thayer’s part; but now that we have been in practice all this time, we find that what he said stands by us better than what was said by anybody else.”
The fear has often been expressed that, with the great increase in the number of law students, the personal relation between teacher and pupil would cease to exist; but on the day of Professor Thayer’s funeral, convincing proof was afforded of the regard in which he was held by his pupils. In the midst of the severest storm of the winter, five hundred students came out to escort the procession from the house to Appleton Chapel.
As a conversationalist, I have known only three men whom I should put in the same class with Professor Thayer. There was always the right word and the right turn given to each phrase, with no appearance of effort, no display of learning, and never the remotest suspicion of talking for momentary effect. He was with his pen equal to what he was in speech. He was the one to whom we all turned when memorials and epitaphs were to be written. We all feel to-day that the lips are silent which alone could pay a worthy tribute to such a man.
A welcome guest in all social circles, Professor Thayer was, nevertheless, entitled to the high praise which was bestowed on another eminent Massachusetts lawyer, “That the best wine of his companionship was kept for his own home.” And I cannot refrain from adding that it was an ideal home.
Until within a twelvemonth, Professor Thayer was a remarkably vigorous man for his years, but he began lately to be conscious of some diminution of physical strength. In July he wrote to me from Bar Harbor that, if he could complete a second volume on Evidence during the next college year, he should be tempted to drop that part of his school work and keep only Constitutional Law, adding, “If, indeed, by that time, I be not ripe for going on the shelf entirely.” “The head,” he said, “seems all right yet, — so far as I call judge, — but in other regions time is telling. Fast walking and mountain climbing are for others now.”
The end came suddenly, but now that the first shock is over, his friends can hardly regret that he was spared the alternative of a long and painful season of ill health. Rather would we say of him: Felix non tantum claritate vitae, sed etiam opportunitate mortis.
The Chairman: —
The Dean of the Law School Faculty, I am sure, will not fail to respond to my call.
Mr. James Barr Ames said: —
It was my privilege to be a colleague of Professor Thayer throughout the twenty-eight years of his service in the Harvard Law School. Before his return to the School, he had declined the offer of a professorship in the English Department of the College. Although his rare gift for thoughtful, graceful, and effective writing could not have failed to make him highly successful as a teacher of English, his decision not to give up his chosen profession was doubtless a wise one. Certainly, it was a fortunate one for the Law School and for the law.
During the early years of his service, he lectured on a variety of legal topics, but Evidence and Constitutional Law were especially congenial to him, and in the end he devoted himself exclusively to these two subjects, in each of which he had prepared for the use of his classes an excellent Collection of Cases. Evidence was an admirable field for his powers of historical research and analytical judgment. He recognized that our artificial rules of evidence were the natural outgrowth of trial by jury, and could only be explained by tracing carefully the development of that institution in England. The results of his work appeared in his Preliminary Treatise on the Law of Evidence, a worthy companion of the masterly Origin of the Jury, by the distinguished German, Professor Brunner. His book gave him an immediate reputation, not only in this country, but in England, as a legal historian and jurist of the first rank. An eminent English lawyer, in reviewing it, described it as “a book which goes to the root of the subject more thoroughly than any other text-book in existence.”
Only a few days before his death, Professor Thayer talked with me about his plans for the future, saying that he expected to complete his new book on Evidence in the summer of 1903, when he meant to relinquish that subject and devote the rest of his life to Constitutional Law, with a view to publication.
It is, indeed, a misfortune that these plans were not to be carried out. But although he has published no treatise upon Constitutional Law, he has achieved by his essays, by his Collection of Cases, and by his teaching, a reputation in that subject hardly second to his rank in Evidence. To the few who knew of it, President McKinley’s wish to make Professor Thayer a member of the present Philippine Commission seemed a natural and most fitting recognition of his eminence as a constitutional lawyer, and, if he had deemed it wise to accept the position offered to him, no one can doubt that the appointment would have commanded universal approval.
Wherever the Harvard Law School is known, he has been recognized for many years as one of its chief ornaments. When, in 1900, the Association of American Law Schools was formed, it was taken for granted by all the delegates that Professor Thayer was to be its first president. No one can measure his great influence upon the thousands of his pupils. While at the School, they had a profound respect for his character and ability, and they realized that they were sitting at the feet of a master of his subjects. In their after life, his precept and example have been, and will continue to be, a constant stimulus to genuine, thorough, and finished work, and a constant safeguard against hasty generalization or dogmatic assertion. His quick sympathy, his unfailing readiness to assist the learner, out of the class-room as well as in it, and his attractive personality, gave him an exceptionally strong hold upon the affections of the young men. Their attitude towards him is well expressed in a letter that came to me this morning from a recent graduate of the School, who describes him as “one of the best known, best liked, and strongest of the law professors.”
The relations of the law professors are probably closer than those of any other department of the University. No one who has not known, as his colleagues have known, the charm of his daily presence and conversation, and the delightful quality of his vacation letters, can appreciate the deep and abiding sense of the irreparable loss they have suffered in the death of Professor Thayer.
In our great grief, we find our chief comfort in the thought of his simple and beautiful life, greatly blessed in his home and family, rich in choice friendships, crowned with the distinction that comes only to the possessor of great natural gifts nobly used, full of happiness to himself, and giving in abundant measure happiness and inspiration to others.
The Chairman: —
Mr. Edes has been associated here with Professor Thayer from the earliest days of the Society. I will ask him to add a word.
Mr. Henry H. Edes responded as follows:—
Mr. Chairman, — After the affectionate and discriminating tributes which have been paid this afternoon to the memory of our friend and associate, I should not attempt to add to them had not the President, before leaving Cambridge, urged me to say something of Mr. Thayer’s connection with this Society and of his loyalty and devoted service to it; but, Sir, your own remarks in announcing the passing of Mr. Thayer and the admirable Minute which Mr. Davis has presented for our consideration, have left little for me to say.
When, in the summer and autumn of 1892, I was noting the names of the persons who should be asked to attend, in December, the preliminary conference which resulted in the organization of this Society, Mr. Thayer’s was one of the first to be placed on the list. I well remember the cordiality with which he consented to append his signature to the Articles of Association; and from that moment he was constant in his devotion to the best interests of the new organization. None who heard them, I am sure, will ever forget his beautiful tributes to Dr. Gould and to his classmate Ware at the meetings which followed their deaths; neither shall we forget the charm and brilliancy and wit of his after-dinner speeches, nor the dignity and grace and felicity with which he presided at our Annual Dinner in 1896, when Dr. Gould’s failing health precluded him from exercising that function. It is pleasant, too, to remember that it was at a Stated Meeting of this Society that Mr. Thayer made the first public announcement of the fact that the Corporation of Harvard College had reëstablished the Lady Mowlson Scholarship, founded in 1643.
As we go on in life, and the circle of our older friends grows smaller, there are few things which a man craves more than the respect and love of those younger than himself. Mr. Thayer had a remarkable faculty of attracting and holding the affection of younger men. He believed in them, and was always ready, when opportunity offered, to use his powerful influence to secure for them, according to their deserts, that recognition and some of those honors and preferments which his own splendid scholarship and attainments had won for himself.
The simplicity of Mr. Thayer’s home life was most beautiful, and those who were admitted to its privileges will never forget the genuine New England hospitality which had there its consummate flower or the gracious presence and loveliness of character of her who shared with him the joys and sorrows of that ideal home.