Volume 1 — TRIBUTE OF FRIENDSHIP:

THE LATE JOSEPH STORY.

Article from the Boston Daily Advertiser, September 16, 1845.

I have just returned from the funeral of this great and good man. Under that roof where I have so often seen him in health, buoyant with life, exuberant in kindness, happy in family and friends, I stood by his mortal remains sunk in eternal rest, and gazed upon those well-loved features from which even the icy touch of death had not effaced all the living beauty. The eye was quenched, and the glow of life extinguished; but the noble brow seemed still to shelter, as under a marble dome, the spirit that had fled. And is he dead, I asked myself,—whose face was never turned to me, except in affection,—who has filled the civilized world with his name, and drawn to his country the homage of foreign nations,—who was of activity and labor that knew no rest,—who was connected with so many circles by duties of such various kinds, by official ties, by sympathy, by friendship and love,—who, according to the beautiful expression of Wilberforce, "touched life at so many points,"—has he, indeed, passed away? Upon the small plate on the coffin was inscribed, Joseph Story, died September 10th, 1845, aged 66 years. These few words might apply to the lowly citizen, as to the illustrious Judge. Thus is the coffin-plate a register of the equality of men.

At his well-known house we joined in religious worship. The Rev. Dr. Walker, present head of the University, in earnest prayer, commended his soul to God who gave it, and invoked upon family and friends a consecration of their afflictive bereavement. From this service we followed, in mournful procession, to the resting-place which he had selected for himself and his family, amidst the beautiful groves of Mount Auburn. As the procession filed into the cemetery I was moved by the sight of the numerous pupils of the Law School, with uncovered heads and countenances of sorrow, ranged on each side of the road within the gate, testifying by silent and unexpected homage their last reverence to their departed teacher. Around the grave, as he was laid in the embrace of the mother earth, were gathered all in our community most distinguished in law, learning, literature, station,—Judges of our Courts, Professors of the University, surviving classmates, and a thick cluster of friends. He was placed among the children taken from him in early life. Of such is the kingdom of heaven were the words he had inscribed over their names on the simple marble which now commemorates alike the children and their father. Nor is there a child in heaven of more childlike innocence and purity than he, who, full of years and honors, has gone to mingle with these children.

There is another sentence, inscribed by him on this family stone, which speaks to us now with a voice of consolation. Sorrow not as those without hope were the words which brought solace to him in his bereavements. From his bed beneath he seems to whisper thus among his mourning family and friends,—most especially to her, the chosen partner of his life, from whom so much of human comfort is apparently removed. He is indeed gone; but we shall see him once more forever. With this blessed trust, we may find happiness in dwelling upon his virtues and fame on earth, till the great consoler, Time, shall come with healing in his wings.

From the grave of the Judge I walked a few short steps to that of his classmate and friend, the beloved Channing, who died less than three years ago, aged sixty-two. Thus these companions in early studies—each afterwards foremost in important duties, pursuing divergent paths, yet always drawn towards each other by the attractions of mutual friendship—again meet and lie down together in the same sweet earth, in the shadow of kindred trees, through which the same birds sing a perpetual requiem.

The afternoon was of unusual brilliancy, and the full-orbed sun gilded with mellow light the funereal stones through which I wound my way, as I sought the grave of another friend, the first colleague of the departed Judge in the duties of the Law School,—Professor Ashmun. After a life crowded with usefulness, he laid down the burden of disease which he had long borne, at the early age of thirty-three. I remember listening, in 1833, to the flowing discourse which Story pronounced, in the College Chapel, over the departed; nor can I forget his deep emotion, as we stood together at the foot of the grave, while the earth fell, dust to dust, upon the coffin of his friend.

Wandering through this silent city of the dead, I called to mind those words of Beaumont on the Tombs in Westminster Abbey:—

A richer royalty is sown at Mount Auburn. The kings that slumber there were anointed by more than earthly hand.

Turning again to the newest grave, I found no one but the humble gardeners, smoothing the sod over the fresh earth. It was late in the afternoon, and the upper branches of the stately trees that wave over the sacred spot, after glistening for a while in the golden rays of the setting sun, were left in the gloom which had already settled on the grass beneath. Hurrying away, I reached the gate as the porter's curfew was tolling to forgetful musers like myself the warning to leave.

Moving away from the consecrated field, I thought of the pilgrims that would come from afar, through successions of generations, to look upon the last home of the great Jurist. From all parts of our own country, from all the lands where law is taught as a science, and where justice prevails, they will come to seek the grave of their master. Let us guard, then, this precious dust. Let us be happy, that, though his works and his example belong to the world, his remains are placed in our peculiar care. To us, also, who saw him face to face, in the performance of his various duties, and who sustain a loss so irreparable, is the melancholy pleasure of dwelling with household affection upon his surpassing excellences.

His death makes a chasm which I shrink from contemplating. He was the senior Judge of the highest Court of the country, an active Professor of Law, and a Fellow in the Corporation of Harvard University. He was in himself a whole triumvirate; and these three distinguished posts, now vacant, will be filled, in all probability, each by a distinct successor. It is, however, as the Jurist that he is to take his place in the history of the world, high in the same firmament where beam the mild glories of Tribonian, Cujas, Hale, and Mansfield. It was his fortune, unlike that of many cultivating the law with signal success on the European continent, to be called as a judge practically to administer and apply it in the business of life. It thus became to him not merely a science, whose depths and intricacies he explored in his closet, but a great and godlike instrument, to be employed in that grandest of earthly functions, the determination of justice among men. While the duties of the magistrate were thus illumined by the studies of the jurist, the latter were tempered to a finer edge by the experience of the bench.

In the attempt to estimate his character as a Jurist, he may be regarded in three different aspects,—as Judge, Author, and Teacher of Jurisprudence, exercising in each a peculiar influence. His lot is rare who achieves fame in any single department of human action; rarer still is his who becomes foremost in many. The first impression is of astonishment, that a single mind, in a single life, should accomplish so much. Omitting the incalculable labors, of which there is no trace, except in the knowledge, happiness, and justice they helped to secure, the bare amount of his written and printed works is enormous beyond precedent in the annals of the Common Law. His written judgments on his circuit, and his various commentaries, occupy twenty-seven volumes, while his judgments in the Supreme Court of the United States form an important part of no less than thirty-four volumes more. The vast professional labors of Coke and Eldon, which seem to clothe the walls of our libraries, must yield to his in extent. He is the Lope de Vega, or the Walter Scott, of the Common Law.

We are struck next by the universality of his juridical attainments. It was said by Dryden of a great lawyer in English history,—Heneage Finch,—

But the boundless ocean of that age was a "closed sea," compared with that on which the adventurer embarks to-day. In Howell's Familiar Letters there is a saying of only a few short years before, that the books of the Common Law might all be carried in a wheelbarrow. To coast such an ocean were a less task than a moiety of his labors whom we now mourn. Called to administer all the different branches of law, kept separate in England, he showed a mastery of all. His was Universal Empire; and wherever he set his foot, in the various realms of jurisprudence, it was as a sovereign,—whether in the ancient and subtile learning of Real Law,—the Criminal Law,—the niceties of Special Pleading,—the more refined doctrines of Contracts,—the more rational system of Commercial and Maritime Law,—the peculiar and interesting principles and practice of Admiralty and Prize,—the immense range of Chancery,—the modern, but important, jurisdiction over Patents,—or that higher region, the great themes of Public and Constitutional Law. In each of these branches there are judgments by him which will not yield in value to those of any other judge in England or the United States, even though his studies and duties may have been directed to only one particular department.

His judgments are remarkable for exhaustive treatment. The Common Law, as every student knows to his cost, is found only in innumerable "sand-grains" of authority. In his learned expositions not one of these is overlooked, while all are combined with care, and the golden cord of reason is woven across the ample tissue. There is in them, besides, a clearness which flings over the subject a perfect day,—a severe logic, which, by its closeness and precision, makes us feel the truth of the saying of Leibnitz, that nothing approaches so near the certainty of geometry as the reasoning of the law,—a careful attention to the discussions at the bar, that nothing should be lost,—with a copious and persuasive eloquence investing the whole. Many of his judgments will be landmarks in the law: I know of no single judge who has set up so many. I think it may be said, without fear of question, that the Reports show a larger number of judicial opinions from Story, which posterity will not willingly let die, than from any other judge in the history of English or American law.

There is much of his character as a Judge which cannot be preserved, except in the faithful memory of those whose happiness it was to enjoy his judicial presence. I refer particularly to his mode of conducting business. Even the passing stranger bore witness to his suavity of manner on the bench, while all practitioners in the courts where he presided so long attest the marvellous quickness with which he seized habitually the points of a case, often anticipating the slower movements of counsel, and leaping, or, I might almost say, flying, to the proper conclusion. Napoleon's perception, at the head of an army, was not more rapid. Nor can I forget the scrupulous care with which he assigned reasons for every portion of his opinions, showing that it was not he who spoke with the voice of authority, but the law, whose organ he was.

In the history of the English bench there are but two names with combined eminence as Judge and Author,—Coke and Hale,—unless, indeed, the "Ordinances in Chancery," from the Verulamian pen, should entitle Lord Bacon to this distinction, and the judgments of Lord Brougham should vindicate the same for him. Blackstone's character as judge is lost in the fame of the Commentaries. To Story belongs this double glory. Early in life he compiled an important professional work; but it was only at a comparatively recent period, after his mind had been disciplined by the labors of the bench, that he prepared those elaborate Commentaries which have made his name a familiar word in foreign countries. They who knew him best observed the lively interest which he took in this extension of his renown. And most justly; for the voice of distant foreign nations comes as from a living posterity. His works have been reviewed with praise in the journals of England, Scotland, Ireland, France, and Germany. They are cited as authorities in all the Courts of Westminster Hall; and one of the ablest and most learned jurists of the age, whose honorable career at the bar has opened to him the peerage,—Lord Campbell,—in the course of debate in the House of Lords, accorded to their author an exalted place, saying that he "had a greater reputation as a legal writer than any author England could boast since the days of Blackstone."[117]

To complete this hasty survey, I should allude to his excellences as a Teacher of law, that other relation which he sustained to jurisprudence. The numerous pupils reared at his feet, and now scattered throughout the country, diffusing, in their different circles, the light obtained at Cambridge, as they hear that their beloved master has fallen, will each feel that he has lost a friend. He had the faculty, rare as it is exquisite, of interesting the young, and winning their affections. I have often seen him surrounded by a group of youths,—the ancient Romans might have aptly called it a corona,—all intent upon his earnest conversation, and freely interrogating him on matters of interest. In his lectures, and other forms of instruction, he was prodigal of explanation and illustration; his manner, according to the classical image of Zeno, was like the open palm, never like the clenched fist. His learning was always overflowing, as from the horn of abundance. He was earnest and unrelaxing in effort, patient and gentle, while he listened with inspiring attention to all that the pupil said. Like Chaucer's Clerk,

"And gladly wolde he lerne, and gladly teche."

Above all, he was a living example of love for the law,—supposed by many to be unlovely and repulsive,—which seemed to grow warmer under the snows of accumulating winters; and such an example could not fail, with magnetic power, to touch the hearts of the young. Nor should I forget the lofty standard of professional morals which he inculcated, filling his discourse with the charm of goodness. Under such auspices, and those of his learned associate, Professor Greenleaf, large classes of students, larger than any other in America, or in England, were annually gathered in Cambridge. The Law School became the glory of the University.

He was proud of his character as Professor. In his earlier works he is called on the title-page "Dane Professor of Law." It was only on the suggestion of the English publisher that he was induced to append the other title, "One of the Justices of the Supreme Court of the United States." He looked forward with peculiar satisfaction to the time which seemed at hand, when he should lay down the honors and cares of the bench, and devote himself singly to the duties of his chair.

I have merely glanced at him in his three several relations to jurisprudence. Great in each, it is on this unprecedented combination that his peculiar fame will be reared, as upon an immortal tripod. In what I have written, I do not think I am biased by partialities of private friendship. I have endeavored to regard him as posterity will regard him, as all must regard him now who fully know him in his works. Imagine for one moment the irreparable loss, if all that he has done were blotted out forever. As I think of the incalculable facilities afforded by his labors, I cannot but say with Racine, when speaking of Descartes, "Nous courons; mais, sans lui, nous ne marcherions pas." Besides, it is he who has inspired in many foreign bosoms, reluctant to perceive good in our country, a sincere homage to the American name. He has turned the stream refluent upon the ancient fountains of Westminster Hall, and, stranger still, has forced the waters above their sources, up the unaccustomed heights of countries alien to the Common Law. It is he also who has directed, from the copious well-springs of Roman Law, and from the fresher currents of modern Continental Law, a pure and grateful stream to enrich and fertilize our domestic jurisprudence. In his judgments, his books, and his teachings, he drew always from other systems to illustrate the Common Law.

The mind naturally seeks to compare him with eminent jurists, servants of Themis, who share with him the wide spaces of fame. In genius for the law, in the exceeding usefulness of his career, in the blended character of Judge and Author, he cannot yield to our time-honored master, Lord Coke; in suavity of manner, and in silver-tongued eloquence, he may compare with Lord Mansfield, while in depth, accuracy, and variety of juridical learning he surpassed him far; if he yields to Lord Stowell in elegance of diction, he exceeds even his excellence in curious exploration of the foundations of that jurisdiction which they administered in common, and in the development of those great principles of public law whose just determination helps to preserve the peace of nations; and even in the peculiar field illustrated by the long career of Eldon, we find him a familiar worker, with Eldon's profusion of learning, and without the perplexity of his doubts. There are many who regard the judicial character of the late Chief Justice Marshall as unapproachable. I revere his name, and have read his judgments, which seem like "pure reason," with admiration and gratitude; but I cannot disguise that even these noble memorials must yield in juridical character, learning, acuteness, fervor, variety of topics, as they are far inferior in amount, to those of our friend. There is still spared to us a renowned judge, at this moment the unquestioned living head of American jurisprudence, with no rival near the throne,—Chancellor Kent,—whose judgments and works always inspired the warmest eulogy of the departed, and whose character as a jurist furnishes the fittest parallel to his own in the annals of our law.

It seems idle to weave further these vain comparisons, particularly to invoke the living. But busy fancy revives the past, and persons and scenes renew themselves in my memory. I call to mind the recent Chancellor of England, the model of a clear, grave, learned, and conscientious magistrate,—Lord Cottenham. I see again the ornaments of Westminster Hall, on the bench and at the bar, where sits Denman, in manner, conduct, and character "every inch" the judge,—where pleaded the consummate lawyer, Follett, whose voice is now hushed in the grave; their judgments, their arguments, their conversation I cannot forget; but thinking of these, I feel new pride in the great Magistrate, the just Judge, the consummate Lawyer whom we lament.

It has been my fortune to know the chief jurists of our time, in the classical countries of jurisprudence, France and Germany. I remember well the pointed and effective style of Dupin, in one of his masterly arguments before the highest court of France; I recall the pleasant converse of Pardessus—to whom commercial and maritime law is under a larger debt, perhaps, than to any other mind—while he descanted on his favorite theme; I wander in fancy to the gentle presence of him with flowing silver locks who was so dear to Germany,—Thibaut, the expounder of Roman law, and the earnest and successful advocate of a just scheme for the reduction of the unwritten law to the certainty of a written text; from Heidelberg I pass to Berlin, where I listen to the grave lecture and mingle in the social circle of Savigny, so stately in person and peculiar in countenance, whom all the continent of Europe delights to honor; but my heart and my judgment, untravelled, fondly turn with new love and admiration to my Cambridge teacher and friend. Jurisprudence has many arrows in her quiver, but where is one to compare with that which is now spent in the earth?

The fame of the Jurist is enhanced by various attainments superinduced upon learning in the law. His "Miscellaneous Writings" show a thoughtful mind, imbued with elegant literature, warm with kindly sentiments, commanding a style of rich and varied eloquence. Many passages from these have become commonplaces of our schools. In early life he yielded to the fascinations of the poetic muse; and here the great lawyer may find companionship with Selden, who is introduced by Suckling into the "Session of the Poets" as "hard by the chair,"—with Blackstone, whose "Farewell to his Muse" shows his fondness for poetic pastures, even while his eye was directed to the heights of the law,—and also with Mansfield, whom Pope has lamented in familiar words,

"How sweet an Ovid Murray! was our boast."

I have now before me, in his own handwriting, some verses written by him in 1833, entitled, "Advice to a Young Lawyer." As they cannot fail to be read with interest, I introduce them here.

But the jurist, rich with the spoils of time, the exalted magistrate, the orator, the writer, all vanish when I think of the friend. Much as the world may admire his memory, all who knew him will love it more. Who can forget his bounding step, his contagious laugh, his exhilarating voice, his beaming smile, his countenance that shone like a benediction? What pen can describe these? What canvas or marble can portray them? He was always the friend of the young, who never tired in listening to his mellifluous discourse. Nor did they ever leave his presence without a warmer glow of virtue, a more inspiring love of knowledge, and more generous impulses of action. I remember him in my childhood; but I first knew him after he came to Cambridge as Professor, while I was yet an undergraduate, and now recall freshly, as if the words were of yesterday, the eloquence and animation with which at that time he enforced upon a youthful circle the beautiful truth, that no man stands in the way of another. The world is wide enough for all, he said, and no success which may crown our neighbor can affect our own career. In this spirit he ran his race on earth, without jealousy, without envy,—nay, more, overflowing with appreciation and praise of labors which compared humbly with his own. In conversation he dwelt with fervor upon all the topics which interest man,—not only upon law, but upon literature, history, human character, the affairs of every day,—above all, upon the great duties of life, the relations of men to each other, to country, to God. High in his mind, above all human opinions and practices, were the everlasting rules of Right; nor did he ever rise to truer eloquence than when condemning, as I have more than once heard him recently, that evil sentiment, "Our country, right or wrong" which, in whatsoever form of language it may disguise itself, assails the very foundations of justice and virtue.

He was happy in life, happy also in death. It was his hope, expressed in health, that he should not be allowed to linger superfluous on the stage, nor waste under the slow progress of disease. He was always ready to meet his God. His wishes were answered. Two days before his last illness he was in court, and delivered an elaborate judgment on a complicated case in equity. Since his death another judgment in a case already argued before him has been found among his papers, ready to be pronounced.

I saw him for a single moment on the evening preceding his illness. It was an accidental meeting away from his own house,—the last time that the open air fanned his cheeks. His words of familiar, household greeting still linger in my ears, like an enchanted melody. The morning sun saw him on the bed from which he never rose.

Thus closed, after an illness of eight days, in the bosom of his family, without pain, surrounded by friends, a life which, through various vicissitudes of disease, had been spared beyond the grand climacteric, that Cape of Storms in the sea of human existence.

He is gone, and we shall see him no more on earth, except in his works, and the memory of his virtues. The scales of justice, which he so long held, have fallen from his hand. The untiring pen of the Author rests at last. The voice of the Teacher is mute. The fountain, which was ever flowing and ever full, is stopped. The lips, on which the bees of Hybla might have rested, will no more distil their honeyed sweets. The manly form, warm with all the affections of life, with love for family and friends, for truth and virtue, is now cold in death. The justice of nations is eclipsed; the life of the law is suspended. But let us listen to the words which, though dead, he utters from the grave: "Sorrow not as those without hope." The righteous judge, the wise teacher, the faithful friend, the loving father, has ascended to his Judge, his Teacher, his Friend, his Father in Heaven.