MEMOIR OF HENRY BILLINGS BROWN - Late Justice of the Supreme Court of the United States

Consisting of an Autobiographical Sketch With Additions to His Life - By Charles A. Kent of the Detroit Bar

New York, Duffield & Company: 1915

 

HENRY BILLINGS BROWN - Associate Justice, Supreme Court of the United States, 1890 - 1906

Copyright, 1915

By CHARLES A. KENT

 

VAIL-BALLOU COMPANY: Binghamton and New York

 

PREFACE

November 1, 1859, I entered the law office of Walker & Russell, of Detroit, Michigan, as a student of law.

The next month another student, Henry Billings Brown, came into the same office.

The friendship then begun continued without interruption until his death, and the intimacy, though sometimes greater or less, according as we met, was without a break. I did what I could to aid in securing his judicial appointments. While he was District Judge, I argued several cases before him, though the bulk of my practice was in the State courts; after he went to Washington, I saw him several times, and conversed with him freely on almost every topic. I have preserved many letters from him, mainly those written after his retirement. I had few cases before the Supreme Court while Justice Brown while Justice Brown was on the bench. His reputation as Judge depends mainly on his published opinions. What is thought of him as District Judge, I know from talk with other lawyers practising in that court and from my personal knowledge. I have been especially aided in judging of him in admiralty matters by an able letter from George L. Canfield, an admiralty lawyer. I have a letter from his college classmate. Hon. Chauncey Depew, New York Senator for two terms, about his college days and subsequent life as Supreme Justice. I have also a letter from Justice W. R. Day, now of the United States Supreme Court, concerning Justice Brown's career on that bench.

From 1855, when in college, to 1875, when Mr. Brown became District Judge, he kept yearly diaries which I have, in which almost every day he made a memorandum of any incident of special interest. In many of these diaries, he made, at the end of a year, a review of it, so far as events impressed him. In these diaries Mr. Brown kept an account of his expenses. During the last years of his life, in Washington, he kept expense books, which I have. I have not found his accounts as a lawyer when in practice. I have various other memoranda, which he made after he went to Washington, concerning the books he read and intended to read, about his health, the friends he saw, his journeys, etc.

I have had some experience in writing biographical sketches of eminent lawyers, after their death and have found it paid to collect the facts of their earlier lives.

Many years ago I stated this experience to Justice Brown and suggested that he leave a memorandum of such facts, as to his own life. Perhaps in consequence he made the autobiographical sketch herein published, and left word to have me add to it as I thought best, but adding that he did not want a long biography.

In my work I have received every assistance from Justice Brown's relatives and especially from his widow and sister-in-law, Mrs. Daniel Goodwin. Still, for what is written I am alone responsible. It is hardly possible that a life so uniform and so free from striking incidents can be made interesting to the general public. At the most, I can hope that what I write may be read by Justice Brown's friends and members of the bar, who may wish to know the steps by which one of their number attained and honoured the distinguished positions of United States District and Supreme Court Judge. I desire to present my subject exactly as he was, with his deficiencies as well as his virtues, or rather, I wish to have him present himself, as he does in his diaries and letters. In these Justice Brown gave his opinions with the utmost freedom as to persons as well as things. Herein lies the interest in these diaries and letters. I have hesitated how far to quote what he has written when it is not commendatory, but I have thought best in general to give what he says of public men and public events. His opinions are sometimes hasty and may be unjust, but they reveal him with great distinctness. There was absolute sincerity in all he wrote and said. As Justice Brown's autobiography touches on almost all periods of his life, I see no way but to add such facts as appear interesting, or instructive, and then give such judgment of him as a man and a judge as appears just.

C.A.K.

 

MEMOIR OF HENRY BILLINGS BROWN

MEMORANDA FOR BIOGRAPHICAL SKETCH

I was born of a New England Puritan family in which there had been no admixture of alien blood for two hundred and fifty years. Though Puritans, my ancestors were neither bigoted nor intolerant -- upon the contrary some were unusually liberal.

The earliest known member of the family, Edward Brown, emigrated to New England soon after the landing of the Pilgrims, settled in Ipswich, Essex County, Massachusetts, and owned a tract of land there as early as 1640. His grandson, John Brown, in the later years of the seventeenth century moved to the North Society of Preston, Connecticut, now known as Griswold, where some of his descendants have since resided.

My maternal ancestor, most remote, Job Tyler, settled in Andover, not far from Ipswich, and from him are descended a large family of that name who are scattered through New England. His grandson, Hopestill Tyler, also moved to Preston, Connecticut, in 1704. The reason assigned for his removal was the trial of his wife and daughters for witchcraft. Although they were acquitted, they became disgusted with the ecclesiastical rule in Massachusetts, and joined a somewhat general movement in more congenial surroundings in Connecticut. Hopestill left a large family of children, from whom are descended Gen. John Tyler and his nephew, Lieut.-Col. Samuel Tyler, my great grandfather, of Revolutionary repute, Prof. Moses Coit Tyler, of Cornell University, and Mrs.; Roosevelt, wife of the President.

The Browns and Tylers were connected by neighbourhood, political and religious sympathies, and by intermarriage Lieut.-Col. Samuel Tyler married my father's aunt. Judith Brown, and their granddaughter subsequently married my father, Billings Brown, who after a time removed to South Lee, Massachusetts, where I was born March 2, 1836. My father, though not an educated, was a most intelligent man, and a great reader of history and biography, with occasional incursions into the domain of poetry and romance. Like many of his generation he was a great admirer of Burns. My mother was a woman of great strength of character and pronounced religious convictions. For a country girl, she had been well educated in the conventional accomplishments of the day and was quite an adept at painting and drawing. She was fond of literature, read good books and wrote with much facility. She was strict in the performance of her religious duties, insistent upon her sons' attendance upon church, and was, in short, a typical Puritan mother.

Keeping a diary as she did during the early years of my life, she remarks on the second anniversary of my birth (March 2, 1838): "Henry knows all the letters in the alphabet, large and small. He has not learned them by rote, but the capitals mostly from newspapers by spreading them upon the floor and pointing to the letters and looking to us for the names; for when he commenced, when was in January, he could speak but few of them, he now sounds all, though some in a broken manner. The small letters he learned by their being pasted upon a thin, white cloth promiscuously; these he had learned in less time than the capitals, and what is singular has no tendency to the common perplexity in distinguishing the little `b' from `d' or `p' from `q.' Books are his source of amusement."

Upon the fifth anniversary she says: "He has made good proficiency the past year for his advantages. He has not been to school and has nothing to stimulate him but his inclinations. We find it necessary to divert his mind from his books on account of his eyes failing him. I have thoughtlessly indulged him in reading evenings the winter past, but seldom as long as he wished, yet I now see my error and lament it exceedingly." An inflammation of the eyelids, thus produced, his pursued me through life, resulting in the complete loss of the sight of one eye, the partial loss of the other, and a threat of total blindness constantly hovering over me.

South Lee was a small manufacturing village, and among my earliest recollections is that of sitting in a forge, watching the sparks fly from the trip hammer and marvelling why water as used to stimulate instead of extinguishing fires. I was also fond of watching the various processes in the manufacture of paper, which was largely carried on in the village. I had a natural fondness of machinery and was never so happy as when allowed to "assist" at the sawing of logs and shingles and the grinding of grain in my father's mills. Indeed it is not at all improbable that I should have succeeded him in his business, had he not decided in 1845 to sell his entire plant and move to Stockbridge -- the adjoining town. Up to this time I had attended only a district common school in which, however, I was not too young to overlook the fact that I was rather popular with my teachers, since when the "ruler" was passed along for a general application, I was given the fewest and lightest strokes of any member of the class. But when I went home I used to think that my father took a grim satisfaction in atoning for any delinquencies of the schoolmaster in this particular, and thus restoring the equilibrium. But I was naturally obedient, and when my father said to me one day, "My boy, I want you to become a lawyer," I felt that my fate was settled, and had no more idea of questioning it than I should have had in impeaching a decree of Divine Providence. It certainly was not a bad idea in my case, as it settled the doubts which boys usually have regarding their future. It also had an important effect in directing my studies. In the same conversation, speaking of a certain main, said to be rich, I asked him how much a man must be worth to be rich. He said that much depended upon the locality and surroundings, but that in the country portions of New England he had always considered a man to be rich who was worth $20,000. This was certainly a modest estimate, but when we consider that this amount invested at the then current rate of six per cent. yielded an income of $1200, and that not one man in a hundred then spent more than $1000 per year for his family expenses, it will be seen that my father spoke well within the truth, alhough in the sixty-five years that have since elapsed, a man in the Berkshire Hills was an income of $20,000 is not considered to be very rich.

Upon our removal to Stockbridge in 1845, I was entered as a scholar at the Academy and began the study of Latin, which I have always thought and still think, should be the foundation of the intellectual equipment of every educated man. I soon discovered that my strength, as well as my inclination, lay in the direction of languages rather than of mathematics. The school was an excellent one, and I was quick to perceive that the pupils were of a class much superior to the factory children I had met in the District School at South Lee. Stockbridge was then as now one of the most beautiful of New England villages, and the centre of much literary and civic activity. Its leading families -- the Sedgwicks, the Dwights, the Fields, and the Goodriches -- were among the first in the Commonwealth, the many of their younger members have since rise to high rank in the National Judiciary and Politics. While the village had lost the little commercial importance it had possessed in the earlier years of the century, even yet evident in a row of dilapidated shops and a newspaper office, it had fully replaced them by beautiful houses, stately rows of elms, and wide, well kept streets. It was then considered a gem of the Berkshire Hills, although within the past fifty years other villages, notably Lenox, have risen in a position, where they may justly claim to be candidates for the same title.

The only drawback to the pleasure of living in the Berkshire Hills is, the winter's snow begins to fall in November, and sleighing sometimes continues as late as April. For three months in the year the roads, and sometimes the fences are invisible, and occasionally the houses and outbuildings are buried beneath drifts of snow. We occupied a house in the centre of the village, subsequently tenanted by Mr. Choate, and I saw nothing to indicate that we were not to treat Stockbridge as a permanent home, until the word was passed around that we were to return to Connecticut. Whether this was due to the harshness of the climate or to a restlessness more natura to a Western pioneer than a New England country gentlemen, which always characterised my father's actions, I never knew; but it was suddenly announced that he had bought a new home in the little village of Ellington, Tolland County, Connecticut, to which we removed in the spring of 1849.

Ellington was a pleasant and rather picturesque village, upon the edge of the Connecticut River Valley. Its streets were wide, and through the enterprise and foresight of one of its earlier citizens, had been planted with rows of graceful elms. It had the usual equipment of a country village -- a church, a tavern, and post-office, a "store," a "squire," a doctor, and a dentist -- and was not altogether free from the rival factions so common in such communities, where each side "spake fair" to the other, but with somewhat of a rancour and bitterness in their hearts. A daily stage was the sole means of communication with the outer world, and its arrival was always looked for with interest by a group of eager bystanders. Life was peaceful, but not exciting. As there were no manufactories, there was no smoke; as automobiles had not been invented, there was little dust, and never a foul smell; and as there was no commerce, there was not the rumbling of carts and heavy wagons. The principal amusements were an annual donation party, a decennial "revival," a winter sleigh ride, and an occasional "small and early" evening party. No disturbance was ever heard in its streets and the travelling circuses thought it beneath their notice A photograph car sopped there once in a great while, but never to remain more than a few days. In short, if one could "put away" all ambition and be content with the simplest of lives, Ellington was an ideal residence. Notwithstanding its drawbacks to an active minded man, I liked it and still admire its quiet beauty, thought I might not have been satisfied to spend my life there. When I left, it was with the determination to become a country squire which was filled the measure of my ambition. The introductions of a railway and also a trolley line has done but little to change the appearance of the village beyond putting it in closer connection with the metropolis of that region -- the City of Hartford.

The High School of the village, which had once been famous and given character to the whole county, had degenerated so much that I was sent to the Academy of Monson, Massachusetts, of which Rev. Chas. Hammond was then the principal. Of all the teachers was whom I had then come to contact, Mr. Hammond was easily the first. In addition to being an eloquent and appreciative instructor, he had the happy faculty of winning the affection of his scholars, and completely forestalling the natural antagonism between teacher and taught, which is frequently the source of irritation between them. The school of Monson had not the reputation of the much larger schools at Easthampton or Andover, but I doubt much if it were not their equal in management and course of instruction. I continued my preparatory studies here for two years, and in the autumn of 1852 entered Yale College as a member of the class of 1856.

Yale was very different then from what it is at present. In 1852 it was a comparatively small college of less than seven hundred students in all its departments. It is now a university with over seven thousand. But two buildings then standing still remain -- South Middle, preserved as a relic of the old Brick Row, and the Library, the first of the new buildings and the pride of the College. All the rest have been demolished to make room for a handsome stone quadrangle. But even the buildings, though meagre, did not compare unfavourably with those of Harvard and Princeton, Yale's principal competitors. There were few very rich people in the country, and money was hard to raise for educational enterprises.

Though not badly prepared, I made a mistake in entering at sixteen -- two years younger than the average of the class. Two years is a short time in the life of a man, but as between two boys in their teens of equal natural ability, the younger is handicapped by his age. I did not have the rooms or companionship I aspired to, and for the first two years I felt that I was not doing myself justice. At the end of my Sophomore year I resolved upon a reform, took new rooms in the Brick Row, changed my boarding place and became associated with a different class of men. I had some prejudices to overcome, but I finally succeeded in graduating, not with a high, but with a highly respectable, standing. The class of 1856 was not rated above the average in college, but since graduation many of my classmates have risen to positions of eminence, and raised the general standing of the class to an equality with any which graduated in that decade, except the famous class of 1853, to which we all make respectful obeisance. Among the more distinguished were Mr. Justice Brewer of the Supreme Court of the United States, Senator Depew of New York, easily the leading man of his class while in College, Chief Justice Magruder of the Supreme Court of Illinois, Prof. Lewis R. Packard of Yale, Prof. Levi L. Paine of Bangor Theological Seminary, John Mason Brown of Kentucky, and Dr. Wolcott Calkins.

As I recall the four years I spent at Yale and revisit now the same scenes, I seem to have passed from mediaevalism to modern life. The rooms, though not particularly uncomfortable, were shabby and received but slight attention from the "professor of Dust and Ashes." All the accessible parts of the woodwork has been profusely illustrated by the pocket knives of former generations. The sanitary arrangements, if such they can be called, were primitive to the last degree. The hours of work were equally so. In winter we rose before dawn, attended morning prayers and a recitation by gaslight, then just introduced into the public rooms, but not into the dormitories, and sat down to breakfast about sunrise. A daily walk to the post office was all the exercise we could afford except on Wednesday and Saturday afternoons. Attendance at chapel twice a day on Sunday was compulsory. There were no athletics except an occasional (yearly) football game between Sophomores and Freshmen, a boat club and an annual regatta with Harvard instituted and rowed at Springfield or Worcester. The frolics of those days -- the sadly misnamed "statements of Facts" to the entering class, the Burial of Euclid, Biennial Jubilee, Wooden Spoon Exhibition, etc. -- have, I believe, passed into oblivion, and given place to an elaborate system of athletics which goes far toward fixing the standard of popularity of modern university. Whether the wide expansion of the optional studies and the prominence given to athletic development adds or detracts from the value of the University as an educational institution, is a problem which can only be solved by the actual experience of those who have had occasion to compare the working of the new systems with the results of the old. It is not to be wondered at the graduates under the former regime of prescribed studies, with little opportunity for choice, should look with some distrust upon a theory which almost presupposes that a boy had already chosen his profession when he enters college and selects his course of studies with reference to that.

After graduation, my father, who was most kind and indulgent, albeit somewhat hot tempered, offered me a year in Europe. It is needless to say that I eagerly seized upon this opportunity, then comparatively rare, of seeing something of the older world. The result justified my expectations, and I have always regarded that year (from November, 1856, to November, 1857) as the most valuable of my life from an educational point of view. Indeed a year of actual observation is a most befitting supplement to four years of study. Taken at just this time, it has a strong tendency to correct any false impressions, born of national pride or patriotism, to expand our political and religious views, and to teach the lessons so hard to learn at home, that while we have accomplished much in the direction of a higher civilisation, we have still much to learn.

A long voyage of twenty-two days in a sailing vessel afforded a convenient occasion for certain preparatory work in brushing up a most imperfect knowledge of French and German, and in familiarising myself with the countries I was about to visit. At that time nine-tenths of the passenger traffic with Europe was already carried on by steamships, although one or two of the old Packet lines still struggled for a feeble existence and soon succumbed. If the accommodations were rude, and the fare plain, there was some compensation in the opportunity it gave for study and acquaintance with sea life. Being the only passenger, no attempt was made to conceal or disguise its hardships and brutalities. The seamen were the most ignorant and degraded foreigners -- the very scum of European and American ports. Their treatment seemed to be intended to accord with their rank. They were fed upon the coarsest of food, and beaten without mercy even to the shedding of blood, for the slightest dereliction from what the officers conceived to be their duty. I had heard that seamen in the merchant marine were treated with great harshness, but never till actual experience had I grasped the extent of its brutality. I had never heard of anything of the kind upon passenger steamships, not indeed in recent years upon sailing vessels, except upon the oyster boats of Chesapeake Bay. Much of this improvement is due to the advancing civilisation of the age, and to the efforts of societies for the protection of seamen and the amelioration of their condition.

If within the past fifty years America has made marvelous progress in a material sense, the changes in Europe have been scarcely less noticeable. In 1856 Great Britain, Holland, Belgium, Germany and Switzerland were already well supplied by railways, while France had only a few lines, and Italy and Spain practically none at all. The hotels were small, with the exception of the Hotel du Louvre in Paris, then just completed, and not to be compared in size with the leading hostelries in New York, though far exceeding them in comfort and in the quality of their food. But it is to American initiative, and the demands of American tourists, they owe their "modern conveniences," the use of ice, of lifts or elevators, then unknown, electric lighting, furnace heating, and best of all, the private bathroom. But America is fast losing the supremacy she once possessed, and the fact that the expense of living at a European inn is scarcely more than half that at an American hotel of corresponding class, is quite sufficient to account for the enormous annual rush to Europe as the pleasantest and cheapest place to spend the summer.

The political changes during the past half century are the most noticeable of all. France, then an empire under the last of the Bonapartes, is now a prosperous republic, though paying for the transformation by the loss of two of her richest provinces. The German Empire than did not exist. Italy was divided into nearly a dozen different states, independent, but generally despotic and without the pretence of a representative body.

Each seemed to vie with the others in repressing all attempts at popular government. Many, if not most of them, raised a large portion of their revenue from State Lotteries. Even the Church, then in the active exercise of its temporal power, not only tolerated, but also fostered them. Lombardy and Venice were both provinces of Austria. Charles Albert, King of Sardinia, the most enlightened of Italian Sates, had made an effort to expel them in 1848, but was decisively defeated at the Battle of Navaro.

Each seemed to vie with the others in repressing all attempts at popular government. Many, if not most of them, raised a large portion of their revenue from State Lotteries. Even the Church, then in the active exercise of its temporal power, not only tolerated, but also fostered them. Lombardy and Venice were both provinces Austria. Charles Albert, King of Sardinia, the most enlightened of Italian States, had made an effort to expel them in 1848, but was decisively defeated at the Battle of Navaro.

Rome, in its outward appearance, had been practically unchanged for three hundred years. Few new houses had been built, but little excavation of the ruins had been made, and it still continued a thoroughly mediaeval city. Its population had since doubled and new quarters have arisen -- among the finest in Europe. Utterly unable to cope with the raising tide of popular sentiment, the government could only maintain its authority by the aid of a French garrison in Rome and an Austrian garrison in Bologna. When these were withdrawn in consequence of the war between France and Austria, the people rose and made short work of Bourbon and Papal domination.

Naples, though beautiful in its surroundings, was not an especially attractive city. Its government enjoyed the distinction of being one of the worst in Europe. It was strongly fortified, but I could not but notice that its guns were all pointed inward -- against the city, as if to sweep the streets, in case of an insurrection, and not outward to repel an invader. King Ferdinand, the so-called Bomba, was supported by an army of ignorant peasants, and by the "lazzaroni" who were then quite a political power. They were permitted to lie half-naked about the streets, exhibiting publicly their deformities as an appeal to the sympathies of the passers-by. The filth of the city was beyond the decencies of description -- degradation of the common people beyond anything I have ever seen. It was but a few years after this that Garibaldi, with a small force, invaded the Kingdom of the Two Sicilies, defeated its army, put the King to flight and united it to the Kingdom of Italy. While in the moral character of its inhabitants there is much to be desired, Naples itself is clean, orderly and apparently well governed.

These travels, which included practically all of Western Europe, except Spain, occupied an entire year and really constituted a post-graduate course of the greatest value. In November, 1857, I returned home, this time in a steamship, and at once betook myself to the Squire's office in Ellington, and plunged into that most fascinating of law books -- "Blackstone's Commentaries." I shall not enter into the details of my life there. I studied faithfully and mingled somewhat in the simple social life of the village. But as at that time there was a general revival in progress, in which I took no active part, I fear my conduct did not elicit the approval of the ecclesiastical authorities, and that I was looked upon rather as a warning then an example. But my conscience was "void of offence," and I still see nothing to regret or apologise for.

In the following autumn I returned to New Haven, entered the Law School and remained until spring, when I went to Cambridge for a course of six months at Harvard Law School. This was really the pleasantest and most profitable experience of my student days. Having no compulsory duties, no chapel bell to waken me at unseemly hours, no monitors to note my absence, I felt freer to act upon my own convictions and impulses then I had ever done before. Though much inclined to do so, I did not finish the course, or take a degree, but in the autumn pitched upon Detroit as my future home, and after a little preliminary skirmishing, entered the office of Walker & Russell, to finish my studies and particularly to acquaint myself with the local practice. In the following spring I was appointed a Commissioner under a "dedimus potestatem" to take the testimony of a large number of witnesses residing in a dozen different counties in the State. As many of these were lawyers or court officials, I formed acquaintances which were afterwards of real value. Returning to Detroit, I was admitted to the Bar in July, 1860. Detroit at that time contained several lawyers of eminent ability, whose presence would have dignified any court in the country. Such men as Jacob M. Howard, subsequently United States Senator, Halmer H. Emmons, afterwards Circuit Judge of the United States, Geo. V. N. Lothrop, Minister to Russia under the Cleveland administration, and Ashley Pond, one of the keenest legal intellects I ever met, were worthy of comparison with any with whom I subsequently came in contact in Washington.

In the autumn I took a modest office which I shared with Bela Hubbard, a valued friend and eminent citizen, and devoted myself less to the practice of law, which was meagre enough, than to familiarising myself with the Michigan Reports, of which there were then only a dozen volumes. Upon the incoming of the Lincoln administration the following spring, I was appointed by Colonel Dickey, the new Marshall of the district and a friend of the family, his office deputy. This was out of the line of professional advancement, but I had no hesitation in accepting it, as it not only gave me an immediate income, but also brought me into connection with vessel men of all classes, who naturally gravitate toward the Marshal's office whenever any question arises as to "tying up" a vessel to secure a claim. Not long thereafter I was appointed assistant to the District Attorney, Mr. Alfred Russell, an elegant and courtly gentleman, with whom my relations were of the pleasantest description. I not only attended to a large criminal business arising out of the war, by examining witnesses before the committing magistrate, but also prepared all the indictments, attended the sessions of the grand jury, and tried them frequently in court, during the occasional prolonged absence of Mr. Russell. This was really the beginning of my professional activity, and by the expiration of the District Attorney's official term I had built up a practice, principally in the admiralty branch, which justified my taking an office to myself.

I continued to practice with a growing success until July, 1868, when I was appointed by Governor Crapo to a temporary vacancy upon the bench of the Wayne Circuit Court, then constituted of a single judge. But my incumbency was of short duration. As a presidential election was then impending, and Wayne County was strongly Democratic, I was decisively beaten at the November election, though I ran considerably ahead of my ticket. But short as my experience was, it gave me a taste for judicial life which had much to do in fixing my permanent career. Having been given by the people …

please proceed to Part II, pp. 21-40