A Stated Meeting of the Society was held at No. 25 Beacon Street, Boston, on Thursday, 28 December, 1905, at three o’clock in the afternoon, the President, George Lyman Kittredge, LL.D., in the chair.
The Records of the Annual Meeting in November were read and approved.
Mr. Horace E. Ware read the following paper:
When I began the preparation of this paper, I contemplated giving a brief account of the courts which have in Massachusetts exercised authority over matters of probate. I also intended to show that while in England, at the time of the settlement of Massachusetts, such matters were for the most part under ecclesiastical jurisdiction, they were here placed and kept in the civil courts. I then purposed recalling that certain other functions of a public nature, which in England were exercised under ecclesiastical authority, were here from the beginning exercised by the civil courts or civil officers. But in the course of my investigation I came upon certain matters of record and otherwise, the consideration of which moved me to the conclusion that under the government of the Bay Colony and subsequently under that of the Province, ministers, churches, and ecclesiastical matters in general, including even theological questions, were made subject to the authority of the legislative, executive, and judicial bodies and officers to a far greater extent than is generally supposed. The matters historical and of record to which I refer I consider of so much importance that I have ventured to include them in this paper for your consideration. I shall begin with an account in brief of matters of probate on the lines above indicated, and then proceed to consider the extent of the civil authority and of the ecclesiastical authority in their relations with each other.
Though the Massachusetts Bay Colony was nominally established and carried on under the Royal Charter to the Governor and Company of the Massachusetts Bay in New England, it exercised in its internal government practically all the unrestricted functions of an independent state up to the time of the measures of supervision taken under the authority of Charles II. The men of the Colony were not at all reluctant to assume these extensive powers; but even if their inclination had been otherwise, the necessity of the case admitted of no alternative. Whatever residuum of authority may have remained in the English government after the granting of the Charter, down to the measures of supervision referred to, neither the King, the Lord Protector, nor the Parliament sent any officers hither, or did anything else during that period in the way of its exercise; so the natural and necessary course of self-government was pursued without interference.
The General Court, being vested under the Charter with the most important of the functions of the Corporation, became, as would naturally be supposed, the supreme authoritative body in the government of the Colony, as well as of the Corporation as such. In the beginning, the General Court and the Assistants administered the affairs of the Colony in considerable detail; but as these affairs multiplied divers subjects were delegated to other bodies or to officials.
For some years immediately after the settlement, authority over matters of probate was exercised by the Court of Assistants;226 but from the tenor of a law passed 17 October, 1649, I assume that such authority was thereafter exercised by the County Courts, though it had been exercised by the courts at Ipswich and Salem for a few years previously. The probate jurisdiction of the County Courts continued as long as the Colony Charter was in force.227
In the Plymouth Colony the probate of wills and the settlement of the estates of deceased persons were assumed by the Governor and Assistants, and were exercised by them for practically the whole period from the settlement down to the Administration of Andros.
I now invite your attention to a proceeding which shows the talent for constructive legislation possessed by the representative men of the Colonies.
At a meeting of the Commissioners of the four United Colonies of New England, held in September, 1648, a provision of law for the more speedy and free passage of justice was recommended to the four General Courts, to the effect that a will duly proved in, and certified from, any one Colony should without delay be allowed in the rest of the Colonies; also that administrations granted in certain cases in any Colony should be recognized in the other Colonies.228 The Massachusetts Colony assented to the recommendation with the proviso that the rest of the Colonies likewise assented.229 The Connecticut Colony assented with the same proviso as Massachusetts.230 I have not been able to find from their records that the Plymouth or New Haven Colonies assented to the recommendation. The Commissioners of the Colonies had previously recommended that every verdict or sentence of any court within the Colonies should be recognized in the manner prescribed in any other court through the Colonies.231 This recommendation was assented to by the Connecticut Colony,232 but I cannot find that it was assented to by any of the other Colonies. The legislation so recommended by the Commissioners was perhaps suggestive of the provisions of Section 1, Article IV., of the Federal Constitution, providing that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, and of the statutes of this and other States providing for the allowance of wills and the granting of ancillary administration upon the record evidence of original action having been taken in other jurisdictions.
I have given in outline the governmental machinery of the Colony for the allowance of wills and the administration of estates. You will notice that the courts and their officers exercising probate functions were altogether like our Probate Courts and officers to-day in this, that the several courts were convenient to the people of the district over which they had jurisdiction, and that their officers were men taken from among the people. But the mere statement that the Colonists thus early established courts for administering the settlement of estates, — in their essentials such as we see them to-day, — of and by itself, conveys little significance except on reflection. To all brought up in familiarity with the beneficent workings of our Courts of Probate, it seems self-evident that their duties should be performed by unassuming, practical men, who are close to the people. But by considering how for the most part this function of the government was being exercised in England, we shall see that the Colonists directed its operation upon lines very different from those with which most of them had had acquaintance before coming hither. We shall thus realize the bold originality of their course in this matter, — one of the many instances going to show their ability for self-government.
In England at the time of the settlement of Massachusetts, though jurisdiction over wills and estates was in certain of the Courts Baron, in the Court of Hustings in London, and perhaps in some other special courts, the great preponderance of that jurisdiction was, and for a long period had been, exercised by the Ecclesiastical Courts, the Ordinary being the chief functionary in regard to those matters.233
This jurisdiction of the ecclesiastical courts continued until the Probate Act of 1857, 20 and 21 Victoria, Chapter LXXVII. That Act abolished the jurisdiction of the ecclesiastical courts to grant probate of wills and letters of administration, and established a new court called the Court of Probate to exercise that authority. You will observe that it was more than two centuries before this that the Colonists had shown the mother country the wisdom and expediency of such a proceeding.
Undoubtedly some of the Colonists were familiar with the jurisdiction of the Court of Hustings, and the other civil courts referred to, over the estates of deceased persons; but I doubt if such knowledge had much influence moving them to adopt the probate legislation described. The Colonists, if they chose, might have imitated the English custom and empowered members of the clergy to exercise probate functions. The pastors were men of learning, of ability, and of integrity. But such a course would have been utterly at variance with their purposes. All the functions of the government were placed under civil courts and officers. Such was the general policy of the Colony, as I shall attempt to show later; and the placing of probate matters in the civil courts was part of this policy.
The Charter of the Massachusetts Bay Colony was, it will be remembered, vacated in 1684. Charles II. died 6 February, 1684–85; and on 25 May, 1686, the President, Joseph Dudley, and the Council assumed the government of Massachusetts and certain of the neighboring territory under commission from James II. The people now had no voice in the determination as to what courts or officers should have authority in matters of probate or otherwise. Dudley appears to have shown some concern for the convenience of the public in the administration of affairs. But the malign authority of James II. was soon to be operative in full force. On 20 December, 1686, Sir Edmund Andros, the ideal satrap, with his Council entered upon the government. His title was “Governor in Chief in and over the Territory and Dominion of New England,” an expression ominous to those who had had so much liberty under their Charter. Andros assumed supreme authority in matters of probate, and made them, as well as all other public proceedings capable of it, contributory to the spoils of office of himself and his adherents. He personally attended to the administration of estates exceeding fifty pounds, and the ordinary fee for the probate of wills was fifty shillings. In the case of larger estates the fees were greater. It is said that Andros did much to introduce a regular system of forms in probate proceedings.234 Thus far, however, the people had done very well, for they had the remarkable faculty of accomplishing results without being tied down to forms and details in official proceedings. But if this man ever did any good thing in New England, let us give him full credit for it; for any account of the outrages committed by him during the short period of his career even now excites the indignation of the reader. For a statement of certain of them, including some relating to probate matters, I quote from Palfrey:
For the profit of the agents of the new government, the administration of justice was made oppressively expensive. An order went out that all public records of “the late governments now annexed under this dominion” should be brought to Boston, whither of course it became necessary that they should be followed by whosoever needed to consult them. At Boston only could conclusive action be had on wills presented for probate; and a journey to that place was accordingly always liable to be required of widows and heirs. Another order made it necessary that all deeds, mortgages, and wills should be registered by Randolph and his deputies, who should be paid by fees. Excessive fees were demanded; and, in the uncertainty as to what amount of profit might be had from them by the Secretary, Randolph made an advantageous bargain by farming them out to one John West, whom he appointed to be his deputy, and who was also made Judge of the Inferior Court of the County of Suffolk.235
Imagine the widow or children of the deceased having to come, say from the Connecticut River, to Boston on a matter of probate merely to comply with some arbitrary rule or order! How different from probate proceedings under the Colony, when courts were in the neighborhood, and the men presiding over them had some sympathy and, perhaps, acquaintance with the families whose affairs they had under concern. Neither in England nor in New England could the iniquities perpetrated be endured, and the people of both countries soon rid themselves of both King and Governor.
In the Province Charter of 1691 it was ordained —
that the Governor of our said Province or Territory for the time being with the Councill or Assistants may doe, execute or performe all that is necessary for the Probate of Wills and Granting of Administrations for touching or concerning any Interest or Estate which any person or persons shall have within our said Province or Territory;
and it was under that provision that matters of probate were administered during the life of the Province. In the execution of the high authority thus conferred upon them the Governor and Council appointed Judges of Probate, so called, in the several counties. These Judges of Probate, however, were not independent officers like our Judges of Probate to-day. They were men designated by the Governor and Council to perform the functions which the latter had delegated to them. They acted, in a way, as agents of the Governor and Council. The Governor and Council exercised supervision over their acts through proceedings by appeal or otherwise. While not themselves subject to legislative authority, their offices or courts were recognized in divers legislative acts. Though the Governor and Council continued the supreme authority in probate matters, the great mass of the ministerial work, and perhaps of the original judicial work, was done, as it is now, by the Judges of Probate in the different counties. Each court had a seal.236 The Governor and Council did not establish a seal for themselves in their capacity as a Court of Probate until 1760, when, consequent upon a message or communication from Governor Pownall,237 a seal was adopted. It was then also further ordered that probate proceedings be entered in a book238 provided for that purpose; the object of the order appearing to be to keep the record of their acts in probate separate from those in their other functions. I have no evidence of any definite complaint that the proceedings before the courts in the different counties, or before the Governor and Council sitting as what may be called a supreme court of probate, were expensive or burdensome, or had other objectionable features. But the Governor, who was of course the person of greatest authority, was neither elected by the people, nor appointed by a man of their election. Though the statement made by Chief-Justice Parsons,239 that the legislature had passed an act creating probate courts and that this act was negatived by the King, would seem to be erroneous, yet there may have been refusals of requests on the part of the people for changes in the proceedings of the courts, or in the places of holding them, or for changes of officials, no accounts of which have come down to us. It is possible that such refusals may have constituted a minor one among those grievances which caused resistance to the Crown and the consequent independence.
That estates might be settled with the least possible trouble and expense was the concern of the framers of our State Constitution of 1780; and in Part Second, Article IV., Chapter III., of that instrument it was provided that the Judges of probate of wills and for granting letters of administration should hold their courts at such place or places, on fixed days, as the convenience of the people should require; the Legislature to appoint such times and places; and that until such appointments the courts should be holden at the times and places which the respective Judges should direct. This evident care that the people should have the best facilities in the settlement of estates perhaps justifies us in the suspicion above intimated that the convenience of the public may not have been duly regarded in matters of probate under the Provincial government.
In Article V. it was provided that all appeals from the Judges of Probate should be heard and determined by the Governor and Council until the Legislature should make other provision. The Governor and Council were thus temporarily to exercise supervision over the Judges of Probate in much the same manner as had been done under the Province Charter.
Under Chapter XLVI. of the Acts of 1783, passed 12 March, 1784, Probate Courts were established in the several counties and the Supreme Judicial Court was made the Supreme Court of Probate. By Chapter XCIII. of the Acts of 1858 as re-enacted in the Revised Laws, Chapter CLXIL, the Judge of Probate and Insolvency for each county is the Judge of the Probate Court of such county. Though there have been divers statutes passed since the Act of 1784 regarding the Probate Court, giving it additional duties, etc., the functions of the Court, so far as they affect the probate of wills and the granting of administrations, have been essentially the same from 1784 to the present time.
At last then in 1784, and after the recognition of the Nation’s independence by Great Britain, the people of this Commonwealth established a Probate Court to their liking. It is well known what a success the administration of that Court has been. Almost uninterruptedly its beneficent work is done in quiet and without ostentation. Its proceedings are for the most part administrative rather than judicial, and are had in different parts of the several counties at places most convenient for the people. Its Judges are possessed of practical knowledge of the affairs of men, are dignified without pretension, and have at heart the best interests of all those whose affairs are under their direction. Millions’ worth of property is annually distributed and accounted for under their supervision. The great body of what may be called the business procedure of the Court is conducted with such simplicity of method, at such a minimum expense, and with such effectiveness and despatch, that it seems impossible that anything could be contrived in the way of improvement. It behooves us to bear in mind that that Court is the full fruition of the action taken by the men of the Colony regarding the proving of wills and the administration of estates. How seldom, in regard to the many and various measures they took for the conduct of public affairs, those men failed to strike true at the very first!
I have shown that the supervision of the disposition of estates, which in England was for the most part under ecclesiastical jurisdiction, was by the Massachusetts Colonists given to the civil courts. But several other matters which, in the mother country, were under ecclesiastical authority, or done in an ecclesiastical way, here came under the authority of the State, or were free of ecclesiastical procedure, such as:
The various matters arising out of the marital relation, such as divorce, etc.;
The marriage contract itself, which was treated as a civil act and was entered into before a magistrate;240
The records of births, marriages and deaths; The superintendence of cemeteries;
Burials, which were without prayers or other religious ceremonies;241
Neither Christmas nor any other church holiday was ever observed; while all days for Thanksgiving and Fast were appointed by civil authority.
It may be added that —
A clergyman’s status only continued such while he was minister of a church;242
Ministers were not allowed to hold legislative or other important civil offices.243
Yet it has been said by some historians and others that the Colony was under a theocratic government; also that the clergy were all-powerful in the government.
In considering the first of the above assertions it would, if possible, be well to have an exact definition of the word “theocracy,” as applicable to all sorts of varying conditions; but as the attempt to agree upon such a definition might of itself be productive of elaborate discussion, I submit a few matters for consideration, which go to show, as I think, why the assertions referred to should not be accepted.
I assume all will agree that the government of Massachusetts has absolutely nothing theocratic in it to-day. Now if the government of this Commonwealth ever was theocratic, when, I ask, did it cease to be such? It would seem that there could not have been so great a change without some conspicuous upheaval or commotion in the body politic. Again, in a theocracy more or less of the functions of government, — I mean the functions necessary or essential to its governmental machinery and to its integrity as a government, — must be performed in a theocratic way — that is, by the clergy or men exercising such functions. When any such function is changed from theocratic to civil, a new class of men or a new civil department must be substituted for the theocratic. For instance, in England, as I have shown, matters of probate were formerly administered under ecclesiastical authority but were later placed under civil authority, — a court of probate was substituted for an ecclesiastical court. When, I ask, since the Colony Charter came to these shores, has a theocratic or ecclesiastical function, department, or official of the government been abolished or removed, and a civil department, function, or official substituted, whether by statute or otherwise? I know of not one. I do not profess to be conversant with all the incidents of Massachusetts history, but if there had been such a change, I think it would now be generally known.
But it may be adduced in support of the theocratic theory that none but church members were allowed to become freemen of the Colony. Does it follow, I ask, that because all the voters of a state belong to a certain denomination, that state is a theocracy? If they were all Christians, but of various denominations, what would the state be then?244
In connection with the first of these questions I think it material to inquire as to the cause or occasion of a provision of law limiting the voters to members of the Colony churches.
Confront yourselves for a moment with conditions affecting our Government like this: Suppose we were threatened with the immigration of people of some religious denomination who had been having their matters of probate directed by ecclesiastical authority, and who, we thought, were going to insist upon having all probate matters subjected to the control of ecclesiastics here. Further, that these ecclesiastics were to be of a denomination different from any of ours. Should we hesitate to make use of the most effective means to prevent the adoption of a measure so un-American? The Colonists had a continual fear of this kind before them; only it involved many more matters than those of probate. That this fear was well founded is shown by the Commission for the regulation of the government of the Colonies issued by Charles I. in 1634, which happily never became operative over Massachusetts.245
Grounds for the Colonists’ fear that they might lose control of the probate as well as all other functions of government, are also shown by the proceedings of Andros. Under these proceedings the structure of government, reared through so many years of toil and self-sacrifice, was ruthlessly cast down,— even the titles to real estate were called in question. Why lay the limited suffrage law of the Colony entirely to sectarianism and narrow-mindedness in religion, when the purpose of self-preservation in its adoption is evident? A limitation of suffrage is one thing, a theocratic government is another.
In addition, it may be said that every one, of whatever denomination, was taxed to support the Congregational churches, and was compelled to attend church on Sunday. If the first of these features constitutes a theocracy, then every country at that time having an established church was a theocracy. I doubt if any one would advance so questionable a proposition. As for compulsory attendance at church, that is in the nature of a police regulation. We shall, I think, all agree that it was a wholesome requirement in the early days of the Colony, when there was neither work nor recreation to take up peoples’ attention on the Lord’s Day. Compulsory attendance at church did not make a person who attended a member of a church, or identify him with its faith.
Let us now consider the statement so often made that the clergy exercised great and undue influence in public matters.
During the Colonial and Provincial periods it was natural and proper that the opinions of learned men, teachers of morality and religion, and chosen by the churches to be their ministers, should have weight in the community. Their opinions were at times asked on important matters by the public authorities, — sometimes perhaps they were allowed at their own request to present their views. They were on committees which drafted or assisted in drafting the Body of Liberties, and they undoubtedly assisted in drafting other laws; but all such laws were enacted by a regular legislative body. At times the ministers may have passed upon the qualifications of schoolmasters. But the clergy in the Colony never, so far as I have read, exercised direct authority over civil matters, either by law or by custom. On the contrary, we find a long course of legislation and series of precedents, both in the Colony and in the Province, the effect of which was to make both the clergy and the churches subservient to the civil authority.
In this connection let me call your attention to certain proceedings relative to the proposed settlement of a minister over the First Church and Parish in Springfield in 1735. The incident is full of significance. The First Church and Parish in Springfield had made choice of the Rev. Robert Breck as their minister and Mr. Breck had accepted. They then called a council of churches to ordain the minister they had chosen; but reports having been spread in Connecticut that Mr. Breck was not of sound orthodox principles, the council convened in Springfield were making inquiry therein when the proceedings were interrupted by the arrest of Mr. Breck on a warrant issued by three “Justices of the peace,” based on the complaint of some of the First Church and First Precinct of Springfield. On this warrant Mr. Breck was taken before the justices and examined touching the matters (which were points of doctrine and faith) that the council “were then actually in the hearing of.” The justices evidently were not satisfied with Mr. Breck’s doctrinal principles, for they issued another warrant on which they sent him into Connecticut and caused him to be bound over to the County Court of Windham. The Springfield Church went to the Legislature with their grievance. The House concluded that, though the Justices bad’ by law authority to inquire into facts, they ought not to have interrupted the ecclesiastical council.246
Considering the oft-repeated assertion of the potent authority exercised by the clergy in early Massachusetts history, this whole proceeding seems somewhat surprising. It involves the implication that judges of the courts could examine into and decide matters of religious creed and doctrine, and in any given case could decide whether or not a man whose orthodoxy was questioned should be settled over a church. Let us examine some of the laws then existing regarding these matters.
By Chapter XXVI. of the Province Laws of 1602–93, as amended by Chapter XLVI. of 1692–93, it was provided that each town or place should have a learned and orthodox minister; and that in case of neglect the Court of Quarter Sessions of the Peace was empowered to fine the selectmen or other persons responsible for such neglect.
By Chapter IX. of 1706–07, the Justices of the Court of General Sessions of the Peace, at the opening of their Court from time to time, were specially to charge the grand jury to make inquiry and presentment of all towns, etc., that were destitute of, or did not support, their ministers. Upon such presentment, the Court was directed to put the laws in execution for redressing all neglects of that kind, and to make necessary orders, etc., and if such orders were not observed, or were eluded, to make report to the General Court. Upon such report to the General Court, the latter was to take care to send a learned orthodox minister to such town, and might add the expense to the public taxes upon such town.
Chapter XVII. of 1715–16 is similar to Chapter IX. of 1706–07, except that the minister provided by the General Court was to be first recommended by three or more settled ordained ministers.
You will notice that the provisions I have read involve authorization of decisions on matters of theological doctrine on the part of the Justices and the General Court.
Let us go back to the time of the Colony. A law passed 19 May, 1658, provided ‘that no person should preach or be ordained to the office of teaching elder, where any two churches, council of state, or General Court declared their dissatisfaction thereat, either in reference to doctrine or practice, “until the offence be orderly removed.”247 The provision shows that the General Court could veto such ordination. A law passed 30 May, 1660, enacted that the County Courts do attend the execution of such orders of the General Court as concern the maintenance of the ministry and the purging of their towns and peculiars from such ministry and preachers as shall be found vicious in their lives, or perniciously heterodox in their doctrines; and for all places destitute of an able and faithful ministry that they use their best endeavor for 1 the procuring and settling of such faithful laborers, etc.; also, that the president of each County Court should from time to time give it in charge to the grand juries to present all abuses and neglects of this kind and that the same be redressed, etc.248
I will now ask your attention to some of the provisions of the Body of Liberties.
This collection of laws and fundamental principles of the government of the Colony was, after a long period of deliberation, as you remember, finally adopted in 1641. Provision was made therein that they should be read at every General Court held within three years after their adoption, and that such of them as were not altered or repealed should stand ratified.
Article LVIII., which is the first of the sections under the division entitled “Liberties more peculiarlie concerning the free men,” reads as follows: “Civill Authoritie hath power and libertie to see the peace, ordinances and Rules of Christ observed in every church according to his word, so it be done in a Civill and not in an ecclesiastical way.” Notice the full force of this language. Not only were the civil officers to see that church proceedings were according to the right doctrines, but in any case in court, for instance, under this law, the rules and practice of the Colony courts relating to pleading, evidence, the weight of precedents and otherwise, and the principles of law laid down by those courts, and. not those in use or laid down by ecclesiastical bodies or authorities, were to apply.
I quote Section 3 of Article XCV., which latter is entitled “A declaration of the Liberties the Lord Jesus hath given to the Churches:”
Every Church hath free libertie of Election and ordination of all their officers from time to time, provided they be able, pious and orthodox.
Taking the proviso that the church officers be able, pious and orthodox, in Section 3 of Article XCV., in connection with Article LVIII., we see how, as in the case of Mr. Breck, the courts had had authority from the beginning to supervise church proceedings as to matters of doctrine.
Section 7 of Article XCV. declares that the elders of churches have free liberty to meet monthly, quarterly, or otherwise, in convenient numbers and places, for conferences and consultations about Christian and church questions and occasions. But observe that they are not authorized to decide questions. The section implies a doubt whether the elders would have the right to meet, were it not for a special provision to that effect.
Section 11 of Article XCV. is important. It is as follows:
For the preventing and removeing of errour and offence that may grow and spread in any of the Churches in this Jurisdiction. And for the preserveing of trueith and peace in the several churches within themselves, and for the maintenance and exercise of brotherly communion, amongst all the churches in the Countrie, It is allowed and ratified, by the authoritie of this Generall Court as a lawfull libertie of the Churches of Christ. That once in every month of the yeare (when the season will beare it) It shall be lawfull for the minesters and Elders, of the Churches neere adjoyneing together, with any other of the breetheren with the consent of the churches to assemble by course in each severall Church one after an other. To the intent after the preaching of the word by such a minister as shall be requested thereto by the Elders of the church where the Assembly is held, The rest of the day may be spent in publique Christian Conference about the discussing and resolveing of any such doubts and cases of conscience concerning matter of doctrine or worship or government of the church as shall be propounded by any of the Breetheren of that church, with leave also to any other Brother to propound his objections or answeres for further satisfaction according to the word of god. Provided that the whole action be guided and moderated by the Elders of the Church where the Assemblie is helde, or by such others as they shall appoint. And that no thing be concluded and imposed by way of Authoritie from one or more Churches upon an other, but onely by way of Brotherly conference and consultations. That the trueth may be searched out to the satisfying of every man’s conscience in the sight of god according to his worde. And because such an Assembly and the worke their of can not be duely attended to if other lectures be held in the same weeke. It is therefore agreed with the consent of the Churches. That in that weeke when such an Assembly is held, All the lectures in all the neighbouring Churches for that weeke shall be forborne. That so the publique service of Christ in this more solemne Assembly may be transacted with greater deligence and attention.
The Colonists, intense as they were in their religious beliefs, did not want the clergy, even of their own churches, to become a masterful hierarchy. To prevent such a result, to secure to the separate churches the greatest possible independence and at the same time to keep all the churches and church members in accord on matters of doctrine and faith, and to have the Church in its entirety just what the people wanted, it is doubtful if a more consummate scheme could be devised than that which, upon examination, we find in the Body of Liberties. The assemblies provided for in Section 11 were of representatives, not from all the churches, but from those near adjoining together. The proceedings were to be guided and moderated by the elders of the church where the particular assembly was held, or by persons of their appointment. All the churches throughout the Colony were prohibited from organizing and acting as a united body. Such is the inevitable inference from the various provisions of the Body of Liberties. The churches were not to impose anything upon any one of them. Any attention needed to keep any church in the straight path was, as we have seen, to be given by civil authority. The assemblies, while admirable for obtaining the sense of the ministers and of the active lay members on matters of doctrine, had no authority to prescribe in relation thereto. There was probably a considerable liberty allowed in discussion, provided decorum was observed and nothing was said derogatory to public authority. The Church was to be kept fragmentary; the unity of purpose and control was to be in the law-making body.
Certain writers have remarked that the Body of Liberties and the other laws of the Massachusetts Colony were founded upon the precepts of the Old Testament, especially on the laws of Moses. The several capital laws in the Liberties (Article XCIV.) cite authorities from the Old Testament in their margins for the punishments prescribed. I submit for your consideration the question whether the views of these writers have not been distorted from having given too great weight to these capital laws, to the extreme views on religion and doctrine in the writings of some of the clergy of the Colonial period, and to the allegations of certain authors of the same period. The great substance of the Body of Liberties and of the Colony laws breathes far more of the spirit of the Bill of Rights and of the Constitutions of our State and Nation than it does of the spirit of the Mosaic law. Were it the contrary, then the founders of a State whose institutions have long been the admiration of the civilized world were mere imitators. And it is, moreover, incumbent upon those who assert that the Body of Liberties was derived from the laws of Moses to show how such a decided change in racial characteristics occurred during the passing of three or four generations of men between the lawmakers of the Colony and their descendants, the framers of our Constitutions.
While there were probably few who desired that the clergy or the churches should be active participants in the actual government of the Colony, there were doubtless some among the’ lawmakers who were opposed to their being made wholly subject to civil authority. In some places in the Liberties the language bears indication of compromises on expressions in this regard. But the passages I have quoted from the Liberties and from the Colony and Province statutes leave it clear that the government maintained its power to exercise paramount supervision in matters of doctrine and church administration.
You will observe from the laws which I have cited, that the civil government exercised authority over the churches in matters of doctrine and faith,—and this as well under the Province as under the Colony. The Province statutes cited were approved by the Royal Governor or Lieutenant-Governor, and were not disallowed by the Sovereign or the Privy Council when submitted as provided in the Charter. The Sovereigns of England or their representatives would surely not have become parties to such legislation if they had regarded it as theocratic.
It may perhaps be said that the civil government, though called by that name, was, from the way it exercised authority in religious and theological matters, in effect a theocracy. Such an assertion involves the strange anomaly of a theocracy of which clergymen or existing ecclesiastical bodies are not a constituent part, but from which they are carefully excluded.
An impression is abroad that the Colonists did not like lawyers and took measures, on occasion, to be rid of them. In the conduct of public affairs in the new course upon which they had ventured, the men of the Colony doubtless did not want to be hampered by subtleties and worn out technicalities brought over from the courts in Westminster Hall and elsewhere in England. But let us examine the Colony Charter and the Body of Liberties, recall the rights and privileges the Colonists claimed under the Charter, and the care they took and the measures they adopted through a period of years to save it from forfeiture, and we shall see that somewhere in their service, perhaps in England as well as in New England, there were commanding legal intellects. While for the most part dealing with broad principles, these men were not deficient upon occasions in acuteness of perception, or subtlety of reasoning. At the same time it is possible that the leading men of the Colony were not averse to allowing the impression to prevail in England that there were few, or no, persons of preeminent legal acquirements engaged in the affairs of the Colony. They would probably have preferred that the Colonists should be considered as religious enthusiasts, proceeding without definite end or method, than to have attention drawn to the progressive legislation wherewith they were moulding the solid Commonwealth. In the former case interference from the English government would be much less likely. For the good of history, and that we might hold them in honor and reverence, it is to be wished that we could identify more definitely all who were the chief advisers or participants in the Colony’s legislation of a general nature, in all the proceedings relating to the Charter and the Colony’s rights thereunder, and in the various important matters from time to time affecting the policy of the Colony.
The action of the Colonists relating to matters of probate has, in the aspect in which we have regarded it, led to a consideration of the relation of the government of the Colony to subjects ecclesiastical and theological. We have had before us a course of legislation relating to those subjects, both in the Colony and in the Province; and it has, moreover, appeared that not only matters of probate, but certain other proceedings of a public character, which in England were under ecclesiastical control, were here placed under civil authority. Though I am aware that a vast amount has been published with the object of throwing light upon the character of the Colony and Province governments regarding religion, theology, and ecclesiastical matters in general, I yet venture to offer my own views as to the real nature and status of those governments and of the doings of the Colonists in this respect.
The men who came to Massachusetts from England had long been subjected to vexatious restrictions and persecutions. The settlement of estates and certain other secular matters to which I have referred were under the control of a clergy with whose doctrines and discipline they were not in accord. They had no hope of seeing the administration of the church reformed, and the church services they desired to practise were not tolerated. But it was not alone in religious matters that they were harassed. They were desirous and capable of conducting great business and governmental enterprises, as history has shown. At home these expansive forces were restrained by long-time customs, laws, and traditions, by legal technicalities, and by royal interference and oppression. When they came hither their great object was to contrive means for the realization of their aspirations. And in this connection we should always bear in mind that the colonists had other matters to think of besides religion and theology. A system of governmental machinery was to be put in operation, a complicated affair under most favorable conditions; a wholly wild and unknown country was to be developed; coming generations were to be educated; courts were to be established; land must be parcelled out; agriculture was to be carried on upon an untried soil; homes were to be established; recurrent questions with the Indians were to be settled, and enterprizes, commercial and manufacturing, were to be prosecuted. These were only some of the problems to be dealt with. One in our comfortable surroundings who reads only the sermons and doctrinal discussions of the Colonial period gets no conception of these vast and difficult secular undertakings. We experience a realizing sense of them, however, when we examine the laws of that period, and contemplate the multitude and magnitude of the things accomplished.
Considering that the colonists came from divers places in England, and must on the whole have had slight acquaintance with each other, we are struck with their unity of purpose. The great problem before them was to convert this unity of purpose into unity of action.
The vast number of things that demanded their immediate attention,— some of which I have mentioned,—together with their lack of experience, rendered it impracticable for them to establish a code of laws at the beginning. Matters ecclesiastical and civil were doubtless indiscriminately considered and acted upon both by the General Court and the Assistants, and the exigencies attending each matter may frequently have been the most potent factor in any action regarding it. This exercise of somewhat arbitrary powers is of course not in accord with a republican form of government, and as a matter of fact the people soon demanded that a system of laws and a definite course of procedure in legislative and judicial matters be promulgated. The wise men of the Colony upon whom this work necessarily fell managed to postpone action for some years. Well might they hesitate in view of all the difficulties. The machinery of a government republican in its essence was to be set up, the relations of this government with an indefinite kind of church, itself republican in its administration, were to be defined, and the total result had to appear to be as far as possible within their rights under their Charter, so as to afford no pretext for its overthrow by those in England who were ever on the watch to accomplish that end. The various provisions of the proposed system received a great deal of consideration, and there were many postponements, but finally the Body of Liberties was enacted in 1641 as I have stated.
I have already called your attention to a course of legislation which I assume began with the Body of Liberties and under which it appears that it was the policy of both Colony and Province that the churches be subject to civil authority. Let us consider for a moment the course of reasoning which it seems to me must have preceded and led up to this legislation, and some of the consequences of the legislation itself.
In the circumstances in which the churches found themselves shortly after the settlement on Massachusetts Bay, two very different methods of administering them suggest themselves. The one was to have more or less of the clergy, and perhaps some of the laity, constituted into a central body to decide theological questions and to supervise the acts and proceedings of the several churches. The other was to give each church full authority to settle its own pastor and to act in all doctrinal matters, as well as in its prudential affairs, subject to very slight, if any, supervision or control. The former course was not in accordance with the principles of the Congregational or Independent churches. It would, moreover, have had a tendency to establish a hierarchy which would have been abhorrent to the Colonists. The second course was in accord with the Congregational idea; but had it been followed there would have been nothing to prevent any church from adopting heretical doctrines, from settling an unorthodox pastor, or from doing other things detrimental to the unity of the churches. What the Fathers actually did was to allow the churches to organize and to proceed on the Congregational scheme with the practice of having assemblies for consultation, deliberation, and advice, but they kept the final supervision and control of all doctrinal and ecclesiastical questions and questions of church organization in the government of the Colony.
While a religious organization, or denomination, even of an hierarchical character, is liable to disintegration or secession, a working political government is not so liable. It is an entirety and must exist, if at all, as such. It was therefore in this most effective and practical manner that those men secured that unity of action on religious matters which was absolutely necessary, in view of the inflamed condition of men’s minds everywhere on religious questions, to the establishment of New England institutions. The Public School and the Town Meeting never could have developed in the embroilment of fierce religious discussion and dissension.
The subjection of ecclesiastical and doctrinal matters to the final action of the government meant that the decision of such questions, as of all other governmental questions, rested with the majority, and this implied acquiescence by the minority as well. This acquiescence by the minority seems to be one of the marked features of the New England governments. Great must have been the bitterness and many the heart-burnings which accompanied such acquiescence during the history of the Massachusetts and Plymouth Colonies. In a few instances we have direct evidence that this was the fact. But on the whole the suffering from this cause must have been borne in silence by those men, one of the prominent features of whose creed was the exercise of self-control, and who in practice were ready both to act and to endure for the good of the Commonwealth.
On the other hand, I think we have a good deal of evidence that those in the majority from time to time generally allowed a considerable period for deliberation before final action, especially in church matters. Great pains appear to have been almost always taken to reason with those who advocated heretical doctrines, and to try to show them their errors before resort was had to heroic measures.
In the course of its proceedings in religious matters, the civil government never appears to have prescribed or laid down any definite creeds or systems of doctrine; nor for that matter did the clergy or churches adopt any such comprehensive system. In view, also, of the provisions I have read from the Body of Liberties, it is clear that the churches could not have established a system of denominational theology without the consent of the General Court. It would undoubtedly have been almost impossible for either the churches or the Legislature to agree upon any such system. The chief function of both bodies, so far as concerned doctrine, was to decide whether the various views proclaimed from time to time, by individuals or groups of individuals, were heretical; and if so, to reason with their advocates and when necessary to take such action as would cause these questions to retire from public consideration. The elimination of such heretical doctrines may furnish some assistance in inferring what were the doctrines which were generally approved, but not formally adopted.
In the course of a few decades, as we have seen, the situation had developed into the supreme control by the Legislature of the churches, their organization, discipline, and doctrines. We have also seen that this was but one of a great number of subjects upon which the Legislature acted, and that its action and that of its courts was necessarily by civil, or parliamentary and judicial, and not by ecclesiastical methods. By way of emphasis upon this last statement, allow me again to call your attention to Chapter XXVI. of 1692–93. The title is both significant and instructive, — “An Act for the Settlement and Support of Ministers and Schoolmasters.” Education and religion were treated in the same statute, and in the same way. After providing that every town shall have a minister, the act goes on to require that every town of fifty householders or upwards shall be constantly provided of a schoolmaster, and that every town of one hundred families or householders shall have a grammar school, etc.; and further that delinquent towns shall incur a penalty at the hands of the Justices in Quarter Sessions. You will notice the similarity of these provisions to those I have before mentioned, in the same Chapter, requiring towns to have ministers.249
The statute illustrates how completely legislation regarding churches was of a civil character. But while in this statute the several provisions for the moral and intellectual uplifting of the community through the agency of the towns proceed upon parallel lines, observe that the subject of the ministers or churches and that of the schools are in no wise connected or dependent, either one with, or upon, the other. All that concerns schools might be stricken out, and the requirements or proceedings relating to ministers would remain unaffected; and vice versa. The subject of religion or of the churches was not in legislation interwoven or complicated with other subjects.
As I have said, there was no cast-iron creed or system of doctrines established so as to interfere with any change of policy regarding public requirements in the matter of religion, or to be done violence to in case of such change, nor was there any ecclesiastical organization to be dealt with in such contingency. Whether in the Colony, the Province, or under the Constitution, such changes might be made like those relating to other subjects. The power to change such requirements implies the power to modify and discontinue them; and, as you remember, they were materially modified in the State Constitution of 1780, and were practically abolished by the eleventh article of amendment to that instrument, adopted in 1833. The people had seen that the institutions of the Commonwealth were no longer threatened by men of religious beliefs different from their own. Men of the Commonwealth had stood side by side with men from Virginia professing the faith of the Church of England, and with men of other denominations, in the War for Independence. Because of these and other changes of conditions, the minds of great numbers were relieved from the pressure of dangers, originally real, later imaginary. Public religious requirements were done away with; and the Commonwealth stood out in its fair proportions, without a scar or blemish to show what had been severed and put aside. What I wish to emphasize is that the change came through the exercise of the methods established by the Colonists themselves, and without violent consequences in the community. What scheme of church administration could have been devised under which the transition from the religious sentiment of the time of the Colony to the multitude of religions of the present day could have been accomplished with so little disturbance in the body politic?
In comparing the religious opinions of the present with those of the Colonial and Provincial periods, it behooves us to take into consideration the difference of the conditions and circumstances attending each. Now while we rejoice at the constitutional provision that all religious denominations are equally under the protection of the law, are we sure that the Colonists under the present conditions would not be very much like ourselves? Are we entirely certain that we ourselves, if deposited on this coast in the early seventeenth century, would not have been very much like them? In this connection I would say that however the Congregational denominations of to-day may differ from that of the Colony in matters of theology, they are much the same in the substantial of church organization and religious services. Upon brief consideration of this aptitude of their church organization for present conditions, we see and appreciate still another striking instance of the capacity of the Puritans for designing methods of cooperative effort to a common end.
It seems to me that one of the effective ways of studying special conditions in the Colony is by a careful consideration, in their order, of the changes which have taken place down to recent times. This I have endeavored to do, inadequately I fear, in the treatment of the subjects before us. I have also tried to call up for our consideration the fundamentals, rather than the incidentals, which successively belong to the entire period we have in mind. This course, you notice, has carried us through the Colony, the Province, and the State. The work of the War for Independence was so brilliant, and its results were so decisive and impressive, that the public vision is liable to be dimmed and confused as to what went before. It lies in our minds, unless we stop to reflect, that the characteristics of the people changed upon the Declaration of Independence. But as a matter of fact the people of New England had laid down fundamental principles of law and schemes of government before the Revolution, although such principles and schemes did not go under the name of constitutions. In distinguishing matters of form from those of substance, the study of a course of legislation and the consideration of public proceedings regarding subjects of significant importance are, as I have in effect said, of vast assistance. The elaboration of such matters is not, indeed, apt to stimulate the imagination to a high degree of fervor; but it is not to be neglected if we would arrive at correct conclusions.
The more we examine the subject, the more we are impressed by the rapid and at the same time complete and comprehensive way in which the Fathers built up the government; by their ability to convert the wilderness to the uses of man; by their commercial enterprize both on land and sea; and finally by the clear conception they had of the objects from time to time in view, and by the talent they showed in taking and adopting the most practical and effective measures for their accomplishment. These qualities have surely been transmitted to their descendants; of that a great section across this Continent bears evidence, both physical and political. Is it not our duty, as well as our gratification, to endeavor to make the builders of the Commonwealth better known and more highly appreciated? Would it not be fitting that the Commonwealth should at its State House have a statue of at least one of the men through whose labors it came to exist? Every year brings hither hundreds of thousands of people from other lands. It is necessary that all our people should understand and value the institutions of both the State and the Nation. The existence of a universal veneration for the men who initiated those institutions will always be one of the most effective of the means for keeping the appreciation of those institutions in full vigor. Plain, unpretending men though they were, the Fathers yet possessed a thorough understanding of the fundamentals of self-government. Basing them upon those fundamentals, they developed systems of laws and of public proceedings, so practical in use and otherwise so perfectly adapted to the purposes for which they were contrived, that, down through the generations, they have bestowed unmeasured blessings upon all who have had experience of their operation.
Mr. Albert Matthews exhibited, through the courtesy of Mr. Harold Murdock of Boston, its present owner, an autograph letter of John Adams to Governor William Plumer of New Hampshire, dated at Quincy 28 March, 1813, containing interesting remarks about the Declaration of Independence and the appointment of Washington to the command of the army in 1775.250 Its allusion, at the close, to contemporary politics, reminded Mr. Matthews that in the political slang of the day, the sobriquet of “the Duke of Quincy” was sometimes applied to John Adams.
Mr. Matthews also read a paper on the history, origin, propriety of application, and meaning of the term Pilgrim Fathers. A discussion followed, in which President Kittredge, the Rev. Henry A. Parker, and Messrs. William T. Piper and Horace E. Ware participated.
Mr. Henry W. Cunningham exhibited a copy of Peter Barclay’s A Persuasive to the People of Scotland, In order to remove their Prejudice To the Book of Common Prayer, printed at London in 1713. The book was formerly the property of Sir William Pepperrell, and contains his autograph (1724) and his book-plate.
Dr. James Bourne Ayer of Boston, Mr. James Willson Brooks of Petersham, Mr. Thomas Jefferson Coolidge, Jr., of Manchester, and Mr. William Vail Kellen of Boston, were elected Resident Members.
On behalf of Mr. Lindsay Swift, Mr. Henry H. Edes communicated a Memoir of Sigourney Butler, which Mr. Swift had been requested to prepare for publication in the Transactions.
Engraved for The Colonial Society of Massachusetts from a portrait from life
BY LINDSAY SWIFT.
Sigourney Butler was in the ninth generation of descent from Mary Butler, who came to Boston about 1635251 with her son by her first marriage, Stephen Butler, and her second husband Benjamin Ward, whose wife she had been since about 1621.252 Stephen Butler, a soldier in King Philip’s War,253 was thrice married. By his first wife, Jane, he had six sons, the fifth of whom was James, born 2 August, 1665.254 James Butler married Grace Newcomb,255 daughter of Capt. Andrew Newcomb, mariner, and died about 1689.256 The youngest of their four children was James Butler, born 21 August, 1688,257 a rope-maker, who was married 6 April, 1710, by the Rev. Ebenezer Pemberton, then minister of the Old South Church in Boston, to Abigail Eustice.258 She died 15 December, 1713;259 and her husband, who subsequently married Mary Bowditch of Salem,260 was buried 22 October, 1715,261 leaving three children, the youngest of whom was James Butler, born 4 December, 1713.262 James Butler, the third of that name, a goldsmith, married (1) 17 May, 1739,263 Elizabeth Davie,264 who died in giving birth to a child, — James Butler, 15 February, 1739–40;265 and (2) 29 November, 1744, Sarah Wakefield,266 who died within a year of her marriage.267 Through affiliation with British officers in Boston, he became a Tory, and went to Halifax with the British troops in March, 1776, when the Siege of Boston was raised.268 It is uncertain whether he returned to Massachusetts.269 His son James Butler, fourth of that name, hatter, entered the Boston Public Latin School with the Class of 1748,270 and married in Boston 9 May, 1763,271 Mary Sigourney.272 The Boston Port Bill having destroyed the commerce of Boston, Mr. Butler and some of his friends “chartered a schooner, secretly put on board their families and household stuff, ran the blockade in a fog, and fled to the Kennebec River, in August, 1774,”273 where he remained till the autumn of 1778,274 when he returned to Boston. He soon removed to Oxford, Massachusetts, where his occupation was that of a farmer, merchant and innkeeper, until his death on the twentieth of December, 1827, at the age of 87.275 Nine children were the fruit of this marriage, the seventh being Peter Butler, born 16 December, 1774, at Kennebec,276 who died 30 December, 1856.277 His first wife, Mehitabel Corbin of Dudley, Massachusetts,278 who died 2 December, 1836,279 bore him nine children, the eighth of whom was Peter Butler, the father of Sigourney Butler.
Peter Butler, the younger of that name, was born at Oxford, 6 January, 1820,280 and died in his house No. 20 Chestnut Street, Boston, 1 July, 1894. He married Lucia Proctor, who was born 3 November, 1824,281 in Boston, where she died 8 July, 1898. Of the four children of this marriage the youngest was Sigourney; of the three daughters, the eldest, Lucia Cleaveland, died unmarried in her twenty-third year; the second, Mary Sigourney, married her cousin-german Peter Butler Olney (H. C. 1864), a brother of our associate the Hon. Richard Olney, and is now living; the third, Isabel Josephine, is also bving.282 Mr. Peter Butler, a Boston merchant of repute, stood high in the councils of the Democratic party, and in 1885 was the choice of many of its members for the Collectorship of the Port of Boston and Charlestown, which, however, was filled by the appointment of our late associate the Hon. Leverett Saltonstall. For many years Mr. Butler and his family lived in the ancient and beautiful Quincy mansion at Quincy, Massachusetts,283 which is outranked only by the Adams mansion of that city in historic interest. Later, the family resided, successively, at No. 20 and No. 32 Chestnut Street, Boston.
Sigourney Butler was born 24 October, 1857, at No. 26 Chauncy Street, Boston. His early training was at the preparatory school of Mr. John P. Hopkinson. Until recently this school was domiciled at No. 29 Chestnut Street, the house once occupied by Edwin Booth, and nearly opposite the latest Butler home in which Sigourney Butler died. He entered Harvard College in 1873, and graduated in regular course with the Class of 1877. Every college has its famous classes; and they are hard to account for by any law of average. A few hundred young men banded together by accident for four years in one class ought in reason to resemble very closely the members of other classes immediately preceding or following it; but they do not. Butler’s Class was one of these occasional outbursts of intense, aggregated personality which has caused it to be long remembered in college annals for its Berserker rages, its hot-blooded youth, its singular union of cavalier deviltry and intellectual force and even austerity. Dashing, reckless, magnanimous was its temper; its young blades are discreet enough now, but their salt has never lost its savor, and they will all say that in some mysterious, yet altogether happy, fashion the enduring charm that the Class of 1877 has held for its members during nearly thirty years is incarnated in the memory of Sigourney Butler.
Butler entered the Harvard Law School in the autumn following his graduation and remained for the three years’ course. In July, 1880, he was admitted to the Suffolk Bar. From April, 1887, till June, 1889, he filled the office of Second Comptroller of the Treasury of the United States under the appointment of President Cleveland. With this eventful exception to the routine of his profession, he continued in the practice of the law in Boston, until his death, chiefly as one of the counsel of the Boston and Maine Railroad. During his professional life he was associated with Mr. Richard Olney.
Butler’s home was with his father’s family in Quincy and Boston. For six years (1881–1887), he served on the Quincy School Committee. He was also, for several years, the President of the Young Men’s Democratic Club in Boston. It thus appears that the list of his political honors is short, but it by no means represents his political activities. He was of that remarkable group of young men who in the eighties and nineties took in hand the Democratic party, listless through years of accustomed defeat, and under the leadership of the able triumvirate composed of William Eustis Russell, Nathan Matthews, Jr., and Josiah Quincy, broke the ancient defences of the dominant Republican party, placed Russell in the Governor’s chair for three successive years, and made the other two mayors of Boston. Russell and Butler were classmates at Harvard and intimate and affectionate friends; and to the latter is due a fair share of the fame accruing to the political astuteness shown by the newer spirits of the party of which he was a devoted adherent. Yet with all his amiable wisdom and honorable political ambition, he was ready, like Governor Russell, to take a stand against the stampede of his party from the gold standard. That the loss of the moral support of such men has proved a serious injury to the party to which they were otherwise loyally attached, the political annals of the past decade sufficiently attest.
Butler’s devotion to the college which nurtured him was like his devotion to every cause which he espoused, — intense and loyal. In 1895 he was a candidate for the office of Overseer of Harvard College, but was not elected. His affiliations were strongly with the College and her interests, and there can be no doubt that ultimately he would have done much practical service in her behalf. In all the enthusiasms which never quite die out in the hearts of college men, he was a leader, always urging his friends and classmates to races and other contests. He believed in cheering and songs and other harmless displays of temporary partizanship. There was no indifference in his nature; he was “thorough.” This was especially true of his attitude as an American. If he was ready to cheer for a cause, he was also ready to die for one; patriotism really meant something vital to him, and, without false sentiment, he could speak of his country’s flag as something personaby dear to him. It was, for instance, a matter of concern to him that more of his classmates did not offer their services at the time of the breaking out of the Spanish-American War, though he doubtless realized that far younger men than his contemporaries were alone wanted, and that they more than filled the ranks of the actual volunteers. As in the case of the generation which knew the war for the preservation of the Union, partisanship in such men as Butler disappeared in the presence of a national exigency. His friendship with Rear-Admiral (then Captain) Robley D. Evans doubtless served to keep bright this patriotic flame which was so distinct a quality of Butler’s character. As the Secretary of his Class, Mr. John F. Tyler, well said at the time of Butler’s death:
He had the greatest interest in all military matters; he had the true soldierly spirit and, if opportunity had offered, he had just that high resolve and purpose and the heroic qualities to do what Robert Shaw did or what Hobson has just done.
Earlier in life Butler had been an enthusiastic member of the First Corps of Cadets of the Massachusetts Volunteer Militia.
As an unusually late spring was reluctantly turning into the summer of the year 1898, Butler left his office one day (3 June), feeling unable to keep longer at work. A season of great humidity coupled with depression of spirits made it easier for the disease which attacked him, pneumonia, to do its work the more rapidly, for on the evening of Tuesday, the seventh of June, he died at his home in Boston. Though never robust, he, like his friend Governor Russell, gave no indication of a physical delicacy which made it impossible to combat successfully a serious attack upon his system; yet to die in the full tide of battle is the fate which most of us would choose, and we may be sure that such a fate would have been the choice of Sigourney Butler. The funeral service was held on the tenth of June at St. Paul’s Church, Boston, of which he was a faithful member. Eleven of his college classmates,— Brainerd, Cobb, Cunningham, Danforth, Farnsworth, Gray, Leeds, Martin, Morgan, Sherwood, and W. N. Swift, were the body-bearers.
The law was Butler’s profession and practice, but it was pursued so unostentatiously that the part of his life which he devoted to it was the least widely known. However interesting and desirable it might prove to dwell somewhat at length on his legal career, his professional brethren alone are entitled to speak of him as a lawyer, and it must here be sufficient to mention the tributes paid to Butler’s memory by various members of the Bar Association of the City of Boston, of which for five years he had been the Secretary. At a special meeting, held in the Supreme Judicial Court Room at noon on the twenty-eighth of June, 1898, Resolutions, presented by Mr. John T. Wheelwright in behalf of a Committee, were unanimously adopted. This Committee consisted of Messrs. Causten Browne, Charles P. Greenough, John T. Wheelwright, Charles K. Cobb, and Charles F. Adams, 2d. These resolutions bore ample testimony to the sweetness and gentleness of Butler’s character, as well as to his professional worth. Remarks, all confirming the appropriate and feeling words of the Committee, were made by Mr. Solomon Lincoln, Mr. Henry M. Rogers, Professor Edward H. Strobel, a classmate, Mr. Charles T. Gallagher, the Hon. Everett C. Bumpus, and the Hon. Charles S. Hamlin; and letters were read from Mr. Causten Browne and Mr. Morris Gray. The Resolutions were then adopted and placed upon the files of the Association.
The visible record of this tribute by his associates shows a professional life reasonably full of honors, some of them high and all of them creditable to his reputation. There is no doubt that further advancement awaited him, for he had not even begun to lose the appearance of a young man’s vigor and beauty. It is more than probable that Sigourney Butler set aside, from a sense of duty, some opportunities which most men would have eagerly grasped. He was offered by President Cleveland, during his second administration, the important post of private secretary,— a post for which Butler had rare qualifications, but which he felt obliged to decline by reason of duties that compelled him to remain at home. How loyal a son and brother he was may be remarked but not dwelt upon. The death of his mother folio wing close upon his own reveals the strength of an affection powerful enough to keep him from accepting such a position as that offered to him by Mr. Cleveland. The obligations of home and kindred were not small things in his scheme of life, and thus the sense of his loss was absolutely unsullied in those who were nearest him while he lived.
Sigourney Butler had a positive genius for friendship; like a woman when she loves, he sympathized unreservedly with another’s joys and sorrows. He was the life of every gathering, especially of his own immediate group, where he was always buoyant, luminous, chivalrous, and unfailingly optimistic about others. The Irish and French strains in his gallant blood helped to make him what he really was, — a cavalier and with a cavalier’s defects as well as virtues. Spirited and dashing, he poised in conversation with lightest touch over the matter in hand, never tiresome, never shallow, but delicate and fine in all he did and said.
Gracious and wholesome as was this young man’s career, no tribute of this sort would be complete or satisfactory without some mention of that quality which made him essentially what he was. It was so conspicuous as to obscure, at times, the excellence of his achievements, the fidelity and honorableness of his career. I refer to his personal charm. It was something more than his physical beauty, of which he had full store. With the gracefulness of a woman, clear-cut features, and abiding youthfulness of figure, there seemed outwardly nothing more to desire in him. It was not altogether his manner, gracious and winning as we remember that invariably to have been. The very indefinableness of this charm adds only to its force. It was spontaneous, essential to his nature, exquisite and pervasive as some delicate aroma. So subtle a possession inheres in personality, but not necessarily in character, for good and great men and women have had it, and so, too, have those great, perhaps, but not good. Fortunately, Sigourney Butler had nobility of soul, else this fascination might have been a source of danger to himself and to others, so powerful might it have proved in the field of politics, wherein feeling so often overrules judgment. This delightful quality impelled many to claim him as a friend, when the personality of another would have inspired no feeling which transcended that of ordinary acquaintanceship. In a vague and passing fashion, Sigourney Butler has always reminded me of John Inglesant in Mr. Shorthouse’s story of the same name— surely, not in the entire make-up of that seductive gentleman and courtier, but in the rarer and finer elements of character. Nothing really lives so long as the immaterial creations of the imagination; and so it happens that, writing of Sigourney Butler long after his death, I find that while the affectionate recording of his practical career resolves itself into a precise statement of honorable achievement, that which so strongly affected all who came in contact with him still exerts its potent spell in memory, and brings back without sense of diminution all the attendant excellencies of his delicately virile character.