continued from Part I …

to understand they wanted no more of my services on the bench. I returned to practice and was soon afterwards invited to become a partner of John S. Newberry and Ashley Pond -- virtually to take the place of Mr. Newberry, who was then the leading admiralty lawyer of the place, and also largely interested in manufacturing -- to the latter of which he desired to give his entire attention. I remained with the firm, and subsequently with Mr. Pond alone, for seven years, when upon the sudden death of Judge Longyear, I was appointed by President Grant District Judge for the Eastern District of Michigan. I was glad to take refuge in the comparative response of the bench, although it involved the loss of two-thirds of my professional income. Since I felt my health was giving way under the uncongenial strifes of the Bar, and the constant fear lest by some mistake of my own the interests of my clients might be sacrificed, I felt quite content to exchange a position where one's main ambition is to win, for one where one's sole ambition is to do justice. The difference in the nervous strain involved gave me an incalculable relief. For the first two years it was a struggle between life and death, but thanks to a good constitution, prudent living and plenty of horseback exercise, my natural vitality triumphed and for twenty-five years thereafter my health continued to improve.

Some of the pleasantest experiences of my district judgeship were connected with sessions of the circuit court held in other States, upon the assignment of Judge Emmons, who preferred to stay at home in Detroit, while I was only too glad of the opportunity of becoming acquainted with the laws and lawyers of neighbouring jurisdictions. The first winter after my appointment I was assigned to hold a term of the circuit court in Memphis, where I remained two months. Although it was then less than eleven years since the termination of the Civil War, and the passions that it had aroused were by no means extinct, my wife and I were received with a cordiality which not only disarmed all criticism, but captivated us by its apparent genuineness. Though I was conscious of the fact that the political sympathies of the people must have been with the South, no intimation of that kind was ever made to me. Indeed we found ourselves the favoured recipients of the most refined hospitality. Dinners and receptions were given with prodigality, and our rooms at the hotel were constantly thronged by callers.

Learning that Jefferson Davis and his wife were then residents of Memphis, I expressed to my friend General Hume a wish to meet him. Occupying the position I did, I felt that I could not call upon him without exposing myself to unfriendly criticism at home, and as Mr. and Mrs. Davis made no first calls themselves, I did not see my way clear to an interview. General Hume, however, solved the problem by making his house a sort of neutral ground and inviting us all to dine with him. Of course we were only too glad to accept, and I am bound to say I never spent a more delightful evening. I found Mr. Davis a most courteous and agreeable gentleman of the best Southern type, without a suggestion of arrogance or hauteur. It was difficult for me to realise that ten years before he had been a prisoner of State, immured in one of the casemates of Fort Munroe awaiting a trial for high treason as the recognised head of a great rebellion. I then appreciated for the first time that an honourable, conscientious man, removed as far as possible from the criminal classes, may be guilty of treason -- a most flagitious crime when committed by an officer of the army or navy in time of war, but in civil life and in time of a genera pace, often involving little more than a radical difference of political opinion. As in Mr. Davis' case, his action led to a great revolution in which half the States took sides against the government, it would have been a grave mistake to apply the legal canons of interpretation and put him upon trial like an ordinary malefactor.

Mrs. Davis was a handsome woman of refined and elegant manners, with a suggestion of imperiousness which seemed to be borne out by her reputation in Memphis. Their daughter, Winnie, then a beautiful young girl of fifteen, recited to us for our entertainment, an accomplishment much in vogue in the South, and carefully taught in their schools.

The fifteen and a half years I passed as district judge, though characterised by no event of special importance, were full of pleasurable satisfaction and were not overburdened by work. Indeed I found that I could easily dispose of the business in nine months of the year, and that there was always an opportunity for a summer's outing. There are doubtless higher offices, but I know of none in the gift of the government which contributes so much to making life work the living as a district judgeship of the United States. My relations with the Bar were of the pleasantest description and were clouded by no event, and when the question of my promotion arose I seemed to have received practically the unanimous endorsement of the Bar and the Legislature.

At the time of my appointment Halmer H. Emmons of Detroit was filling the recently created office of circuit judge. His was one of the greatest minds I ever came into contact with, and he ought by his talents to have been one of the leading men of the country, but unfortunately he was considered too erratic to be popular as a politician. As counsel for the Grand Trunk Railway he had become familiar with the English and Canadian courts and had conceived a great admiration for their methods of despatching business. He disposed of many cases upon the opening statements or "offers to prove" of counsel; and if he submitted the case to the jury at all, it was under such clear instructions that they found but little difficulty in reaching a verdict. He was intolerant of any want of preparation or of any inability of counsel to state in their own language the facts of the case, or the exact legal questions involved. Counsel who had been accustomed to trying cases in their own way, and consuming all of the time they desired, were greatly surprised and shocked when confronted by a judge who insisted upon their trying them in his way, and consuming no more time than was necessary for the proper disposition of the case. He usually took sides with one counsel or the other very soon after the opening of the argument, which they took the form of a controversy between the Court and the Counsel against whom his intimation had been given. He was very patient in listening to counsel, but I noticed that he usually adhered to his original opinion, and left nothing to the counsel upon the other side but to stand by and listen to a judgment in his favour. It was natural that with his radical departure from the accepted methods of trying cases he should at first have been unpopular with those who had been brought up under the old school of judges, but in a few years the superiority in his mode of dealing with cases became so manifest that he was rapidly winning his way to appreciation as a great judge when death overtook him in the very prime of his judicial career. In person he was tall, spare and of commanding presence. No one could look into his keen black eyes, overhung by beetling brows, and observe his alertness and decisiveness of manner without being satisfied that he was in the presence of no ordinary man.

Judge Emmons was succeeded by John Baxter of Tennessee -- a judge of a very different type. He was certainly an able and upright man, absolutely fearless in the discharge of his duties, but sadly lacking in what is known as the judicial temperament. He was evidently endowed with great executive ability, and, with proper education, would have made a great general. He was thoroughly cool and self-possessed, very mild in voice and manner, but when he announced his determination no argument could possibly shake it. His will was absolutely inflexible, though his opinions were sometimes given in an almost inaudible tone. His was clearly the case of a hand of steel clad in a glove of velvet. He cared even less for authorities than Judge Emmons. They might be stumbling blocks, but they were never insuperable. If they were in his way, his thoughts, if not his words, were "So much the worse for the authorities." He formed offhand impressions and frequently decided upon the strength of them without even listening to an argument. He differed from Judge Emmons in sometimes deciding cases without hearing the party against whom he was about to decide.

He was unpopular as a judge and was thought to be intolerably arbitrary, but it must be said to his credit that he had an intuitive knowledge of the law, was usually right and was rarely reversed. My own relations with him were pleasant, but with several of his colleagues they became much strained. His death was said to be owing to his wilfulness in disregarding the advice of his physician who had warned him against the course he insisted upon pursuing.

He was in turn succeeded by Howell E. Jackson of Tennessee -- an idea judge. If he lacked the brilliancy of Emmons, he was also free from his eccentricities. He had Baxter's instinctive sense of justice, but was always ready to listen to argument. While like most men of alert minds and quick conceptions, he formed his impressions as soon as the case was stated, he was always ready to be convinced, and his patience was rarely exhausted. He was one of the very few judges I have known whom I never heard criticised. Indeed his character was so well rounded out that it is impossible to lay hold of any one characteristic and say that he was specially distinguished for that above all other men. If he were conspicuous for anything it was for the completeness of his intellectual equipment.

During his occasional visits to Detroit, he usually made his home at my house, and I found him the most delightful of guests. He had a fund of droll anecdotes at his disposal, which he drew upon for our amusement and told in his peculiar Southern accent. I gathered from what he said that he had political enemies in his own State, but he never spoke of them with rancour or bitterness.

One day as we were returning from court, and just as we were turning into the house, he told me that he had been informed that Mr. Justice Matthews was fatally ill, and that in case of his death he proposed to go to Washington, see President Harrison, a former colleague of his in the Senate, and persuade him to appoint me to fill the vacancy. As my aspirations had never mounted to the Supreme Bench, and I had never dreamed of it as a possibility, I was naturally surprised, especially in view of the fact that the offer came from one who was my superior in rank and that my appointment involved a promotion over his head. It was, however, a characteristic exhibition of his own unselfishness. He made his promise good, went to Washington in my behalf, and ultimately obtained my appointment, although my classmate, Mr. Justice Brewer, was chosen to fill the first vacancy. My own appointment came a year later upon the death of Mr. Justice Miller. I may say in this connection that both Justice Brewer and myself declined to be considered competitors against each other, and that for the succeeding sixteen years our relations were intimate, and that no cloud ever arose between us. It only remains to add upon the occurrence of the next vacancy, by the death of Mr. Justice Lamar, I was instrumental in inducing President Harrison to appoint Mr. Justice Jackson in his place. This was the culmination of a friendship which continued without interruption until his death.

My appointment to the Supreme Bench necessitated my removal to Washington and the severance of family and social relations which had been the growth of thirty years. While I had been much attached to Detroit and its people, there was much to compensate me in my new sphere of activity. If the duties of the new office were not so congenial to my taste as those of district judge, it was a position of far more dignity, was better paid and was infinitely more gratifying to one's ambition. Besides, the social attraction of the capital of a great country cannot fail to be superior to those of a purely commercial city, however large and prosperous it may be. The constantly changing character of its population, many of whom are sent there for periods of from two to twelve years, to be replaced by others equally agreeable, and the increasing influx of new people, who have made their fortunes elsewhere and remove to Washington to enjoy their later years, is sufficient of itself to make it the social, as it has been for more than a century the political, centre of the nation. There is an additional attraction in the diplomatic corps, which contains representatives of the most refined society of all the leading countries of the world.

My colleagues upon the Supreme Bench were all men of distinction and ability in their several specialities. Chief Justice Fuller was specially happy in his executive duties and his assignments of cases to us for the preparation of opinions constantly had in mind our previous experiences in particular branches of the law, the circuits from which the cases arose, as well as any interest a justice may have taken in an individual case. Each member of the Court was given his share of constitutional cases. To Justices Field, Harlan, Lamar and Brewer were usually assigned the land cases, to Gray most of the commercial cases, to Bradley, Blatchford and myself the patent and admiralty cases, while those turning upon questions of practice were by immemorial custom disposed of by the Chief Justice. Mr. Justice Bradley was by common consent regarded as the most learned and acute lawyer; Justice Field a man of great determination and indomitable courage, though lacking the judicial temperament, as a master of forcible and elegant English; while Justice Gray expressed himself very clearly, usually in short opinions but occasionally in very long ones, for the preparation of which he sent for books from the most remote parts of the country. Though his manners were somewhat brusque, he was an excellent judge, fair minded in his opinions and a kind hearted man. Mr. Justice Harlan was a strong Federalist, with a leaning toward the popular side of cases and a frequent dissenter from the more conservative opinions of his brethren. I have never known partisan considerations to enter into the dispositions of cases. By common consent politics were abjured when taking a seat upon the Supreme Bench. By reason of his previous experience as Secretary of the Interior, Justice Lamar's assignments were chiefly confined to land cases. He had practised law but a few years, and that early in life, and always lamented his lack of special equipment for judicial labour. But he was a man of brilliant talents and one of the most genial and delightful companions I ever knew. Justice Brewer, who had been a classmate of mine in Yale Collage, shared the conservative views of his uncle, Justice Field, regarding the rights of property, but was by no means his inferior as a judge.

On my seventieth birthday, and after a service of fifteen years and a half (precisely the length of my service upon the District Bench), I tendered my resignation to President Roosevelt, to take effect at the end of the term. I took this action in pursuance of a resolution I had made thirty-one years before when first appointed to the Bench. I had always regarded the Act of Congress permitting a retirement upon a full salary as a most beneficent piece of legislation, and have only wondered that more judges have not availed themselves of it. I have noticed that while many, if not most, judges made the age of seventy, very few who remain upon the bench survive another decade. During that decade the work of the Supreme Court tells heavily upon the physique of its members, and sometimes incapacitates them before they are aware of it themselves.

In addition to this I had always taken the ground that the country was entitled to the services of judges in the full possession of their faculties, and as my sight had already begun to fail, I took it as a gentle intimation that I ought to give place to another.

In discussing with the President the appointment of a successor. I mentioned the name of Mr. Taft, then Secretary of War, as one eminently fitted for the place both by education and experience, to which the President replied that Taft was built of presidential timber. Hence I was not surprised when he afterwards became an avowed advocate of Mr. Taft's nomination. I then suggested the name of Secretary Knox, who I understood was offered but declined the appointment. Mr. Moody, then Attorney General, was appointed, but, much to the sorrow of his friends, became incapacitated after a short service and was retired by special Act.

I left Washington soon after my resignation and spent a year in foreign travel. I was received with great courtesy by our own representatives abroad, and accumulated a fund of information which has been a never failing source of pleasure.


ADDENDA

By CHARLES A. KENT

Mr. Brown's college life is fairly summed up in his autobiography. A letter from his classmate, the Hon. Chauncey M. Depew, to me, hereinafter quoted, adds to this.

Mr. Brown's diaries and other memoranda show that he was careful and accurate in his accounts and his expenses. His father provided for him through college and for some time thereafter. He had enough for comfort, but for no extravagances. He missed no good thing which he could afford. He was very fond of society, especially that of young ladies. He learned to dance and attended dancing parties. He learned to swim and to play billiards. Perhaps there was no college or society recreation in which he was not interested.

His standing as a student was not high at first, but it improved. He grew to be ambitious as a scholar, but he does not appear to have loved study for its own sake, nor was his standing ever of the highest. He went usually to the orthodox Congregational church of the college, sometimes to other churches. Neither in college nor afterwards was he deeply interested in religious matters. So far as he appears, his life, at least after his first two years of college, was free from vices which tempt many young men. He heard many occasional lectures of distinguished men like Thackeray, Edward Everett, Ralph Waldo Emerson, Wendell Phillips, Theodore Parker, Starr King and others, and records his opinion of each. His diaries show no touch of egotism. He was elated or depressed at different times, but there is everywhere a sober valuation of his attainments and deficiencies. He had much ill health, though not often seriously sick. Under date of March 5, 1855, there are several pages containing a brief autobiography. In it he speaks of the death of a sister and brother, his mother and his grandfather. He says of his college life: "My desire at first was merely to keep in college, and in truth I hardly did that the first term. The second term I began to do a little better. The third term I got by myself and did better than ever. Still, I was ambitious of being only a good scholar." His mother died October 10, 1853. On his return to college after her funeral he says: "I became reckless and behaved so foolishly as to ruin my college reputation for the next two years. In the meantime compositions were to be written. I thought it an impossibility to write, and accordingly got rid of them the best I could by skinning, etc. During all this term, however, my stand was steadily increasing. Second term, Sophomore year, I resolved to do better, broke away from the miserable crowd I had been with, worked hard at my compositions, competed for a prize and shared the first prize of my division with Packard. Of a sudden I became wonderfully ambitious. Had a philosophical stand the third term of Sophomore year." June 12, 1855, is this entry: "Great excitement throughout our class in consequence of Senior societies. Men that have cursed scroll and key since Freshman year, losing skull and bones, go there. I won't go there by any means. Oh, the duplicity of college life." October 12, 1855, he writes: "Have not the moral courage to appear in public with my new beaver."

December 10 he writes: "Made some good resolutions. Query. How long will they last?" He occasionally sleeps over morning prayers. January 31, 1856, is this entry: "Employed myself in contemplating the delightful fact that I have some lessons to make up." March 2 he writes: "My romantic period is past. Went to prayers and class meeting the first time within a year." March 20 is the entry: "Selected for my Townsend subject, `Public armaments as instruments used by despotisms to debase the people.'" April 23 he writes that he attended St. Patrick's Cathedral, in the morning Mass. June 11 he is informed that he has won a Townsend and feels fine in consequence. June 22 he enters a statement of his standing, which averages a little less than three on a standard of five as perfection. July 19 he joined the Phi Beta Kappa. He had much difficulty in selecting a subject for his commencement address.

July 24 he feels disturbed regarding his commencement address. Thinks it does not do him justice. Half a mind not to speak. Writes: "My maiden dress coat arrived this evening from the best tailor in town."

After graduating he was for some weeks undecided what to do next. August 20 he writes: "Shall I teach or go to South America next year?" September 12 he says: "What shall I do next year? Most favour my entering a law office immediately, which I veto." September 18 he says: "Commenced this day the study of the Spanish language, in anticipation of spending a winter in Cuba."

October 9 he concluded to go to Europe on a sailing vessel, apparently because his uncle owned the ship and gave him his passage.

The ship sailed October 24. The passage was pleasant and he was sick but one day.

He landed in Liverpool, went from there to Warwick and Stratford, thence to Oxford and then to London. He spent several days there visiting the usual sights. Thence he went to Paris, where he stayed several weeks. there he took lessons in French, and made such proficiency that soon afterwards he was able to read that language easily, though perhaps he could never speak it with much fluency. He attended lectures at the Sorbonne.

He makes this summary of the year 1856. "On the whole I decide it the most profitable year of my life and certainly the most pleasant. My Townsend was a success, my commencement effort a failure, my principal false move was in taking too much advice as to my course immediately on leaving college and hesitating so long before starting for Europe. I lost three valuable months in dallying when I should have been across the Atlantic, but I am fairly here now and bound to make the most of it. My Townsend established my position as a writer on an honourable basis, but my old hesitation at extempore speaking still continues. Shall I ever conquer? It is the greatest obstacle to success. With my stand as a scholar, considering my fearful blunders Freshman year, I am pretty well satisfied. I kept my oration, and I could not have done more without seriously injuring my other prospects. My progress in French does not suit me. I find extreme difficulty in understanding what is said, more than in saying what I wish myself. I have not money enough to employ a teacher regularly and am considerably nonplussed at my prospects as a linguist. Certainly the year could not have been spent more agreeably. While in college I had a splendid boarding place and room with the best society in the class. The winter term and spring vacation were especially snug and jolly. My voyage across the Atlantic was not particularly pleasant, but my subsequent experiences have been exceedingly interesting. My failure at commencement was attributed to a fortnight of toothache following presentation, long hesitation about a subject and a final choice of an equivocal one, general disgust for labour after a Townsend and Biennial, and a knowledge that great things were expected and that many friends would be present."

January 17, 1857, he says: "My progress in French is now pretty satisfactory and I am able to understand if when not spoken too fast."

On the 10th he says: "I am left with two francs and am in momentary expectation of a washing bill larger than that. What am I to do?" January 20 he says: "O climax of ecstasy! O delightful inconceivable! Learning that the European mail had arrived I went over to Livingston's and at last received my long wished for, long despaired of letter, and I am now the happy possessor of 1000 francs."

From Paris he went through Italy and thence to Switzerland, Germany and England, everywhere enjoying life.

At the end of the diary of 1857 he makes a summary of that year as follows:

"The commencement of this eventful year found me in a precarious situation; the end finds me as snugly harboured as one could desire. The year has been both profitable and agreeable. My first difficulties in French gradually wore away, and I have now a good reading knowledge of the language and a passable speaking knowledge. German, though, was the decided hit. I never was better pleased with my progress in any branch. Though my vocabulary is limited, my pronunciation is good and the substructure solid. Travelling gives a wonderful expansion to one's ideas. My ideas of geography seem to me now to have been singularly incorrect, but being on the spot is likely to fix the location sufficiently permanently. On the whole, I am well satisfied with the course I took, only regretting I could not have visited Spain."

Mr Brown's diary, while abroad, is written in such fine characters that it is almost impossible to read it without a microscope. If this was not the beginning, at least it must have contributed to his lifelong trouble with his eyes.

The course of Mr. Brown's legal education is sufficiently …

please proceed to Part III, pp. 41-60