Our limited space will not allow even a glance at the particulars of his

doings while in office from 1850 till he resigned, at the close of the

year 1854, to give himself exclusively to labors of a more general and

national character. He had already accomplished as much perhaps as any

other individual for the promotion of education in every part of the

country. By repeated visits to the chief points of influence, by

extensive correspondence and numerous personal conferences with

the leading persons connected with the management of systems and

institutions of education, by addresses before popular assemblies,

literary associations, teachers, and legislative bodies throughout the

country, he had done more than any other man to shape the educational

policy of the nation. His publications had been numerous, important, and

widely disseminated. Besides the "Common School Journal" and reports

above alluded to, his work on "School Architecture" had been circulated

by tens of thousands, not only throughout America but in Europe,

creating a general revolution in public opinion on the subject. His work

on "Normal Schools" had been published several years, from which the

substance of nearly all documents on the subject since published have

been drawn. The volume entitled "National Education in Europe," begun in

1840, and containing about nine hundred closely printed pages, had been

published in 1854, a work well described as an "Encyclopaedia of

Educational Systems and Methods," and of which the "Westminster Review"

speaks as "containing more valuable information and statistics than can

be found in any one volume in the English language." But his

contributions to educational literature did not stop here.

Scarcely did he find himself relieved from the routine of official life

when he projected and immediately entered upon the publication of a

still more valuable and important work, viz., the "American Journal of

Education." Four large octavo volumes of this Journal are now before the

public, and we may safely affirm of it that it is the most valuable and

comprehensive educational publication ever printed in the English

language, and it will be a lasting disgrace to the teachers and

educators of America if it has to be prematurely suspended for want of

sufficient patronage. Besides conducting this Journal, he has found time

for other labors of a general nature. As president of the American

Association for the Advancement of Education, his influence has been

widely and beneficially exerted. That his services to the cause of good

letters and education have been appreciated in high places may be

inferred from the fact that in 1851 he received the honorary degree of

Doctor of Law, from the corporation of Yale College, and in the same

year from Union College, and in the year following from Harvard

University.

* * * * *

[Mr. Barnard's subsequent labors and successes, including his services

in connection with the United States Bureau of Education, will be the

subject of another article, which will be accompanied by a portrait from

a photograph recently taken.--ED.]

A DAUGHTER OF THE PURITANS.

BY ANNA B. BENSEL.

"Have you known sorrow?"

"No."

"Then this sketch is not for you."

In one of the loveliest towns in New England there stood, many years

ago, a large, old-fashioned, rambling house, known to all the villagers

as the old Vincent Manor. It was such an old place, full of strange,

dark corners and winding halls; a place that would have been famous for

a game of hide-and-seek; but there were no children to roam at will over

the house, to laugh out of its dusky corners, or to set the high rafters

a-ring with noise. It had stood there--the house--before and after the

Revolution. It had been turned into a small garrison more than once. Its

walls had heard anxious councils, as men of strong nerve and resolute

will made their vows of independence. Stately dames and grand gentlemen,

in powder and ball dress, in ruffles and periwigs, had paced its weird

corridors, or danced the slow minuet in its great salon.

But now all was changed, and Mistress Marjory--as the neighbors called

her--lived alone in the old manor, the last of all her kin. She was a

tall, pale woman, bearing in her stately, gracious ways all the trace of

her proud ancestry, living alone, yet living for others, helping the

poor and the suffering, answering the call of sorrow everywhere it

reached her, loving and beloved. And her story--The story I learned one

day in the great drawing-room at Vincent Manor! Ah, well, after all,

perhaps it will not interest you as much as it did me. All lives have

their sorrows; does the telling of _one_ matter, after all?

But perhaps the charm and the pathos lay in the way Mistress Marjory

told it, sitting in the shadows before the open wood fire, with her

hands, so seldom idle, folded listlessly in her lap, and her beautiful

gray eyes looking far into the past. What a pretty picture she was in

her black silk dress, with its lace kerchief crossed on her bosom, with

her hair, white as snow, drawn back high from her brow! I like to think

of her as she looked that night so long ago.

And so it is that I think you may like the story best if I tell it to

you in her own words, just as she told it to me. So here it is:--

"My child-life was one full of excitement, yet little pleasure. What

with our struggles between hostile Indians and the soldiers of King

George, we had small time for play or serenity of living. Yet perhaps we

children enjoyed our play hours more than do those of the present time,

for they were so few and far between,--those peaceful, happy days,--they

were treasured all the more. Of the many strange events that happened in

those far-off years I have no time to tell you now. My parents had seven

children--there were six boys. I was the only daughter, and next to the

youngest, who was my favorite brother, one year my junior, sunny,

brave-hearted, and loyal in all things.

"While the men were at work in the fields, and women busy in the house,

the children on different homesteads kept watch for Indians. My

brothers, of course, took turns on our place; and sometimes in the

harvest days, when many hands were needed out doors, and I was not

helping my mother in spinning the flax, I was set on the lookout. Those

were days when the stoutest heart among us would quail at times, for

danger and horror were on every side; and I--well, I was none of the

bravest. But on the days when Harold knew I would be most likely put on

guard he would contrive so as to have his work near the house, and so

watch over me. In order to do so he would rise before the rest, and

going alone in his far corner of the field,--his only defence a faithful

dog, and a trusty rifle over which the dog kept watch while his master

worked,--he would finish his field labor for the day by the time I was

ready for my task. It was a mutual understanding between himself and my

father that this should be; and I think that while my parents feared for

the boy's safety they were proud of his courage that dared so much for

love.

"Well, we grew as children grow, through war and peace, through storm

and calm. And when the first gun of independence was fired on Bunker

Hill my father and brothers armed themselves and joined the numbers

there. Two of my brothers were killed outright in their first encounter

with Gage's men. In the third battle another was taken prisoner, and

with four others tried for 'treason against the king,' and shot. My

mother was a type of the bravest women of that period, but I thought she

would have died then, for he was her eldest born, upon whom she had

always looked with pride.

"I was eighteen then, and my heart and hands were full; but so were

those of many another woman. In that time girls were _women_ and boys

were _men_; it was needed so, you may be sure. Well, after a while the

struggle was over, you know, and they came home,--father, Robert,

George, and Hal. We were expecting them, and stood at the door

watching,--mother and I. And then--and then--we saw them coming, not in

triumph, as we expected, but slowly, a mournful little procession. We

saw father, Robert, and George, and a few neighbors, and they were

bearing a burden we could not see.

"They came nearer, and then I heard mother's awful shriek, that rings in

my dreams even now; but I stood there still; all my heart seemed turned

to stone. 'Seven wounds,' I heard them say, 'and the last was mortal.' O

Harry, my boy--my boy! He looked up and smiled faintly, as they bore him

past me into this very room, and laid him on that couch yonder. My boy!

I had never seen him so white and weak,--he who had been so strong

always. All my strength seemed gone, and I sank beside him as he held

out his hand for me to come to him. He was but a lad in years, but he

had a power of earnest courage many men of riper years do not possess.

Shot six times, he had insisted upon returning, after the dressing of

each wound, to the struggle going on so fiercely, heeding nothing,

fearing nothing, until, in that last battle, he had received the seventh

wound,--the seventh and the last. He lived two days after they brought

him home; and his sufferings! I shudder now when I think of them. He

died as he had lived,--strong and brave to the last. He was a handsome

lad, and he was beautiful in death. Oh, how I missed him! how I have

missed him all these years! Yet as I stood alone, bending over the

coffin, before they bore him out of the dear home forever, I knew all

his terrible pain was over, and through blinding tears I thanked God as

I have never thanked him since. I felt as if I should like to die too;

but soon the numb feeling passed away. Mother was failing, and she,

father, and the other boys leaned upon me as woman can be leaned on, and

I was beginning to be happier. In the train of the French general,

Lafayette, was a young soldier, Chevalier de Rosseau, and he had known

Harold, and loved him. He would come often to the house, and one day he

brought his sister Manon, who had followed him from France. She was the

loveliest little creature I ever saw. I call her little,--although she

was three years my senior,--she was so small and delicate. We became

great friends, and she told me, in her pretty, affectionate way, how she

had been afraid to cross the great ocean, but that she could not bear to

be separated from her brother, who was all she had, and so she had,

after trying in vain to live without seeing him for many months,

conquered her fear and crossed to America. But after a time La Fayette

prepared to return to France. Then it was that my life-trouble came to

me. Chevalier de Rosseau loved me, and I loved him; but when he asked my

father's consent to wed me he was sternly refused. My father had always

seemed to like the young count, and we had no fear of his opposition;

you can imagine, therefore, our dismay and grief. We sought in vain for

a reason for his refusal; he gave none. In vain my lover pleaded. I

could say nothing. In those times a daughter's obedience was in strict

command. Countess Manon wept in vain. They went back to France. I stayed

on. My brothers married and went away. My mother died, and then my

father, he commanding me on his death-bed not to marry Chevalier de

Rosseau. The latter, hearing of my father's death, came once more to

America, and sought again to woo me. What was the need of obeying the

dead? Why should we not be happy? He urged in vain. Dead, as living, my

father's word was law. I was very young still; and I was lonely in the

old house, from whence all joy had fled. The chevalier went back to

France. I never heard of him again but once, and then of his death.

Countess Manon was married, and came with her husband to America; here

she stayed four years, and we often saw each other. We might have been

sisters, and we loved each other as such. Ah, what narrow ways we have

to walk! Is it well in the end? God knows. Manon and her husband

returned to their own land in time, and once more I was left alone. I

had many suitors, but I cared for none; my love had not died, nor will

it ever. Perhaps, somewhere, some time, the life I could not have on

earth will be given in another world. I wait in patience. It will not be

long. The other day I heard of the death of Countess Manon. My brothers

are gone. I alone am left. Why is it so?--I ask myself over and over, I

have not cried for years; but the tears will come to-night as I think of

the past, and of beautiful Countess Manon lying cold and still in death

under the sunny skies of far-off Southern France. She may not have been

beautiful these later years. I forgot she was older even than I, and I

am very old; but to me she always was, and always will be, beautiful.

She was the last link of the old bygone years. What is the use of

remembering them? If Harold had only lived I could have been happy; but

I have not long to wait now. They will come for me. O Harry,

Harry!--across the long space of years the newer love has never dimmed

the older. Eternity waits. I shall see and know you again."

* * * * *

Is it much, after all is told? I have repeated it just as Marjory

Vincent said it, half to me, yet more to herself, for she scarcely

heeded my presence; it was better so. Poor Mistress Marjory! There is

nothing left now; even the old manor is gone. And Mistress Marjory is at

rest.

JUDICIAL FALSIFICATIONS OF HISTORY.[7]

BY CHARLES COWLEY, LL.D.

Historical societies, magazines, and students are, in a real sense, the

guardians of historic truth. If a book is published which falsifies

history, it is our right, and, if the falsification is important, it may

be our duty, to expose the error. So, if those having the administration

of a government falsify history, as the Guizot ministry of France did,

when, vainly hoping to stem the tide of opposition to Louis Phillipe, it

covered Paris with handbills declaring "He is not a Bourbon, he is a

Valois," it is our privilege to "put the foot down firmly," as President

Lincoln said, upon any such falsification. So, too, if a court of

justice commits the indiscretion of falsifying history, as the Supreme

Court of the United States did in the legal-tender case, Guilliard _v._

Greenman, 111 U.S., 421, it well becomes the historic student to step

into the arena, as Mr. Bancroft has done, and, logically speaking, put

that court to the sword. To permit such falsifications to pass unnoticed

and unchallenged is a species of connivance at error; for, to quote a

maxim which is recognized alike in morals and in law, _Qui tacet

consentire videtur:_ "Silence gives consent."

[7] Substance of an address before the New England Historic-Genealogical

Society, April 7 1886.

An able lawyer of the Granite State bar, commenting on the decision of

the Supreme Court of New Hampshire in the case of Eastman _v._ Moulton,

3 N.H., 156, remarked that "the Court, without knowing it, repealed

nearly two hundred years of history."[8] In like manner, it may be said

that the Supreme Judicial Court of Massachusetts, in a decision recently

made, has falsified the juridical history of this Colony, Province, and

Commonwealth for more than two hundred years. We refer to its opinion in

the divorce suit of Robbins _v._ Robbins, printed, with the briefs of

counsel, in 1 New England Reporter, 434, and, without the briefs of

counsel, in 140 Mass., 528.

[8] The Early Jurisprudence of New Hampshire. An address delivered

before the New Hampshire Historical Society, June 3, 1883. By John M.

Shirley, Esq.

The only question presented to the court in that case was whether

certain conduct on the part of the husband amounted in law to connivance

at the infidelity imputed by him to his wife. For one hundred years a

statute has been in force in Massachusetts (which, however, is only a

reenactment of what had long previously been recognized here as

unwritten law) providing that, in all matters of divorce, the Supreme

Judicial Court shall follow "the course of proceedings in the

Ecclesiastical Courts." Various decisions of the Ecclesiastical Courts

were cited to this court by counsel, showing that, according to the law

which prevailed in those courts, the conduct of the husband amounted to

connivance, and ought to preclude him from obtaining a divorce. In order

to obviate the conclusion to which these decisions clearly tended, the

Supreme Judicial Court proceeded to minimize the authority of the

Ecclesiastical Courts, by suggesting that "the decisions of those Courts

upon questions of substantive law are _not_ of the same weight here as

are the decisions of the English Courts of Law and Chancery;" because

"the Ecclesiastical Courts proceeded according to the Canon Law as

allowed and adopted in England; but the Canon Law was never adopted by

the Colonists of Massachusetts: it was not suited to their opinions or

condition."

Now it is true that the Ecclesiastical Courts of England were Canon-Law

Courts, as distinguished from Courts of Common Law and Courts of

Chancery; but this court here has erroneously assumed that the rules and

principles which governed the Ecclesiastical Courts in determining

questions of connivance were different from and inconsistent with the

rules and principles which governed the Courts of Common Law and

Chancery in determining similar questions. Nothing could be further from

the truth. In dealing with questions of this sort, the Canon-Law Courts,

the Common-Law Courts, and the Courts of Chancery sought and found rules

and principles in every system of morals and in every system of law

which had prevailed in any past time in any part of the civilized world,

and especially in the Civil Law of Ancient Rome. They all drank at the

same fountain. In the Roman Law they found the maxim already quoted, and

also the following, viz., _Qui alios cum potest ab errore non revocat,

se ipsum errore demonstrat:_ "He who, when he can, does not divert

another from wrong-doing, shows himself a wrong-doer." _Qui non prohibit

cum prohibere posset jubet:_ "He who does not forbid when he can forbid

seems to command." _Qui potest et debet vetare, tacens jubet:_ "He who

can and ought to forbid, and does not, assents." _Qui non obstat quod

obstare potest facere videtur:_ "He who does not prevent what he can

prevent seems, to commit the thing." Many others might be cited. In

short, the maxims of the Roman Law covered all questions of connivance

so completely that there was no need of devising any new rules in

relation thereto; and no new rules were devised.

With respect to the Canon Law we are enabled to speak positively; for

the whole of the Canon Law is found in the _Corpus Juris Canonici_; and

the _Corpus Juris Canonici_ nowhere attempts to define connivance, and

nowhere lays down any rule by which to determine whether any particular

act, or series of acts, amounts to connivance. When a Canonist had to

grapple with any question of connivance of new impression, he sought,

and never sought but found, ample guidance in the Old and New Testaments

and in the Roman Civil Law. Perhaps the learned judges who promulgated

this disparagement of the Canon Law have given as little attention to it

as John Adams gave to it before he disparaged it in his treatise on the

Feudal Law. There is a remark in one of Fielding's novels which perhaps

applies here, that, "generally speaking, a man will write better for

having some knowledge of what he is writing about;" or words to that

effect. The notes penned by Mr. Adams, in his private copy of his

treatise, warrant the inference that, after that treatise was printed,

he acquired a better understanding of the Canon Law than he had when he

wrote it. _Verbum sapienti._

In the _Corpus Juris Canonici_ we find at the end of the decretals a

collection of ancient maxims, of general application, culled chiefly

from the Roman Law, and promulgated by Pope Boniface VIII. One of these

maxims touches this case, and is the one first quoted in this article;

and, singular to say, it has been twice quoted with approval by the very

court which has put forth this disparagement of the Canon Law.--2

Pickering, 72; 119 Mass., 515.

In the same opinion, the court says, "Marriage and divorce here have

always been regulated wholly by statute." So far as it relates to

divorce, this statement betrays a lack of information touching the

divorce legislation of Massachusetts, as a Colony, as a Province and as

a Commonwealth, which is simply amazing. It would be much nearer the

truth to say that divorce here has always been regulated wholly by the

common or unwritten law. Prior to 1658 not a word of Statute Law was

enacted touching divorce in the Old Bay Colony, and not a word of

Statute Law touching divorce was ever at any time enacted in Plymouth

Colony. It is understood, however, that the Court of Assistants, which

was established in Massachusetts in 1639, exercised the divorce power

before the same was conferred upon it by any express grant; though the

records of that court during the period from 1640 to 1673 have been

lost, having been burned, as is supposed, with the Town House, in 1747.

In 1658 the Court of Assistants was expressly authorized to hear and

determine "all causes of divorce;" and nothing can be more certain than

that that court granted divorces in many cases.[9]

[9] See Cowley's pamphlet, "Our Divorce Courts," &c., pp. 11, 13, 28-30.

In the last revision of his History of the United States, Mr. Bancroft

has corrected the errors which disfigured all the earlier editions of

that work, and which are exposed on p. 10.

The leading members of the General Court (which then included the

Assistants), had been born and bred in England, and were familiar with

the general principles which governed the Ecclesiastical Courts, and the

High Court of Parliament, in granting divorces. They knew nothing of any

rules or principles applicable to divorce proceedings except those which

were recognized in the land of their birth, and of course they intended

that those rules and principles should be followed, as, in fact, they

were followed, by the Court of Assistants.

Although the Plymouth Colony had no statute touching divorce, the

General Court of that colony granted divorces in at least six cases, as

follows, viz.: in 1661, to Elizabeth Burge, of Sandwich, from Thomas

Burge; in 1668, to William Tubbs, of Scituate, from Mary Tubbs; in 1670,

to James Skiff from Elizabeth Skiff; in 1673, to Ensign John Williams,

of Barnstable, from Sarah Williams; in 1675, to Mary Atkinson, of

Taunton, from Marmaduke Atkinson; in 1680, to Elizabeth Stevens from

Thomas Stevens; in 1686, to John Glover from Mary Glover.[10]

[10] See the supplementary chapter in the late John A. Goodwin's

"Pilgrim Republic," soon to be published. Perhaps the case of Wade was

rather a decree of nullity than a divorce.

In all these cases except one, the ground on which the divorce was

granted was infidelity to the marriage-vow. In the case of Mr. Atkinson,

the husband was presumed to have died, having been absent, and not heard

of, for seven years.

Prior to 1785 there was no statute in Massachusetts which defined the

causes for which divorces should be granted, or which prescribed the

forms, the rules, or the principles which the court of divorce should

follow, or which specified whether the divorces granted should be from

bed and board only, or from the bond of matrimony; though, as a fact,

most, if not all, of the divorces granted under the first charter were

from the bond of matrimony.

Thus the general principles which governed the Ecclesiastical Courts and

the High Court of Parliament, in relation to divorce proceedings, became

and formed a part of the common or unwritten law of Massachusetts at the

commencement of her history; and they have never ceased to form a part

of her common law. They have been reaffirmed again and again. Thus in

1692-3, after the abrogation of the colonial charter, and the

establishment of a provincial government, under the second charter, it

was enacted "that all controversies concerning marriage and divorce

should be heard and determined by the governor and council," which had

taken the place of the Court of Assistants. Again, in 1784-5, when the

province had become a commonwealth, when the divorce jurisdiction was

transferred to the Supreme Judicial Court, when the causes were defined

for which that court might grant divorces from bed and board, and

divorces from the bond of matrimony, respectively, it was enacted that

the court should hear and determine all causes of divorce and alimony,

"according to the course of proceeding in Ecclesiastical Courts and in

Courts of Equity;" and this provision has been reenacted at every

revision of our statutes, in 1836, 1860, and 1882. By force of this

statute the general principles which governed the Ecclesiastical Courts

are a part of the law of Massachusetts to-day. One short chapter of the

Public Statutes contains all her statutory law touching not only divorce

but several other incidental subjects. It is a chapter of fragments.

Connivance, collusion, condonation, recrimination, and other defences

are not even mentioned therein.

The New England Magazine, Volume 1, No. 5, Bay State Monthly, Volume 4, No. 5, May, 1886 · 第 4 / 7 段