continued from Part IV…

Justice Brown once told me that he never had a quarrel with either of his wives.

The circumstances which caused Justice Brown's retirement at the age of seventy are given in his autobiography and his letter to me.

On his retirement, the Bar of the Supreme Court resident in the District of Columbia gave him a public dinner at which were present the President and Vice-President of the United States, many judges of the Supreme Court, cabinet officers and others of public distinction. President Roosevelt made a complimentary speech, to which Justice Brown responded in a carefully prepared and able address. He evidently enjoyed the occasion very much. The addresses and letters of regret were published in a pamphlet beautifully framed and bound.

After that he travelled a good deal, going to Italy, Austria, Turkey, Greece, England and France in 1906, and to Italy, Germany, Holland and England in 1910. When not abroad he went to some part of New England in the summer, and towards the last, South in the late winter and spring. While in Washington he entertained constantly, and of course was often entertained by others. His fondness for society never ceased. He had all his professional life been in the habit of making public addresses when called on by some public society. He continued the practice after his retirement. I find among his papers a list of his addresses from 1856 to 1912 numbering thirty-six, most of which have been printed in some magazine or pamphlet or newspaper. They all appear instructive to any one interested in the subject discussed.

This list does not include the Fourth of July orations which he delivered in his early career in Michigan. Justice Brown was all his life a reader of many good books. He continued the practice after his retirement, and when his eyes failed was read to by his wife. I have a list in his own hand writing of the books he read and proposed to read. I have also a catalogue of his library of general books. His library was small. It was quite miscellaneous. He had no fads or specialties. Outside of his law books, I do not think him a great reader.

Even in law, I have the impression that he read chiefly to discharge his duty as an advocate or judge, rather than from the love of law as a science. Some of Justice Brown's characteristics are these: He had an ambition to do almost everything those about him were doing, and to do everything in the best possible way. He had a great love of distinction, an interest in all kinds of general knowledge, in history and in science. He was greatly interested in political life, and in public men. He was a Republican, yet without bigotry. His mind was very active, interested in most everything not requiring expert knowledge. He had good abilities in any subject to which he applied himself, but perhaps no extraordinary capacity in any line. He was absolutely sincere in the expression of every thought, though sometimes hasty. A marked quality was his love of society. Justice Day says in the letter to me: "Judge Brown was, as you know, a sociable man and enjoyed life at the capital, which gave him an opportunity to meet interesting and agreeable people there. He always carefully discharged what he regarded as the social obligations of his position, and his home was one of the most attractive in Washington."

Chauncey M. Depew, Mr. Brown's classmate in college, writes me since his death: "I remember him while as a student, in fact almost better than any other member of the class. He had a most engaging personality which won him universal friendship, both among his classmates and with the faculty. He was an excellent student, but in no sense a grind. While not an athlete, he took the keenest interest in the few sports of that period. His most attractive qualities were on the social side. For three years he roomed across the hall from me in the old North Middle, and therefore I saw him very frequently. In his association with his intimates there was a feminine quality which led to his being called Henrietta, though there never was a more robust, courageous and decided man in meeting the problems of life, whether as a student or afterwards when out in the world. The Justice had a grim humour, and I can recall an instance of its exercise. A classmate of ours was always getting into money difficulties and quarrelling on that subject with some member of the class, generally with the one from whom he had received loans and expected more. Brown had several times contributed, and when he receive notice from one of our classmates of this man's death and that money was required to pay his hotel bill and funeral expenses, the Justice wrote back: `To the object of which you speak I gladly contribute, but before sending a check I wish to receive a burial certificate to be sure that he is dead.' At all class meetings coming in decennial year the Justice was a valuable addition. The majority of our class were country clergymen of very limited salaries, and the meetings were apt to be sombre and depressive. Brown, however, was always buoyant, cheerful and reminiscent only on the cheerful things in our college life and the good things in his experience thereafter. In the intimacies of the class banquet he would give incidents happening in the great court, of which he was both a member and an ornament, and also characteristics of his colleagues, never unkind, which it is a pity could not have been preserved.

"I enjoyed intensely the association during my two terms in the senate with my two classmates, who were members of the Supreme Court, Justice Brown and Justice Brewer. The camaraderie between them was most delightful, and also with them. Brown had been a member for a great many years of the Washington Monument Association. The monument was completed years ago, but every year the Justice had a delightful reunion at his home at which official and social Washington was invited to meet the commissioners."

Justice Brown loved children and young people and attracted them to him. He was fond of the society of intelligent women. He never failed to notice a pretty woman whom he met.

In his morals, at last after he came to Detroit, he seems to have been without reproach. If he ever sowed any wild oats, it was during the first years of his college life. He was careful about money matters, keeping full accounts. He enjoyed savings and making investments, even to the last. I do not think he ever saved money by rejecting any rational enjoyment, or denying any charity which impressed him as a duty. He enjoyed art, but with what intelligence I cannot say. He loved music and used to sing hymns to his own enjoyment. I should not say that he had a religious nature or was ever much interested in theological questions. His mother was a religious woman, and in youth he went with his parents to an orthodox Congregational church. His father disliked the orthodoxy of his time and the son followed in his footsteps.

While in Detroit Mr. Brown before his marriage usually attended church on Sundays, but at a variety of houses of worship. After his marriage he went with his wife to the Presbyterian church, then having for its pastor the Reverend Duffield, one of the straitest of old school theologians. Mr. Brown was often displeased with his sermons. Later ministers of that church he liked better. After his removal to Washington he was at least a casual church attendant. He never expressed any antagonism to Christianity generally, but was quite tolerant of all sects and of Roman Catholics. He was more of an agnostic than an opponent of religion. He does not seem to have had any pronounced views as to the nature of the Great First Cause or of a future life. He took no great interest in such questions. Brought face to face with death by several severe heart attacks, he contemplated it without fear or much hope.

Justice Brown counted himself a fortunate man. I have known no one who achieved more completely the objects of his ambition. In the beginning of his will, made in 1910, he says: "grateful for a life of almost uninterrupted happiness and for the golden mean of neither poverty nor riches." Though sometimes very blue, as his diary shows, he had on the whole a buoyant temperament which made him look on the bright side. But he had many troubles. His first wife was a great invalid, and her death was a crushing sorrow. He suffered most of his life from distressing headaches. Trouble with his eyes began very early. Some years before he died, he lost the sight of one eye, and the vision of the other was greatly impaired. He began to have trouble with his heart in 1896, and thereafter many attacks of this disease, some of them very dangerous. Under the head of palpitations, he made a record of theses attacks, their causes and duration, even to the last one beginning August 19 at 2:30 P.M. The number recorded is more than fifty. He died at the Hotel Gramatane, New York, on September 4, 1913, about noon, without suffering. During this last sickness of about two weeks, though realising perfectly his condition, he was bright and cheerful and very patient. He knew every one up to midnight of the 3rd. That day he thanked his doctor and nurse and bade them good-bye.

He is buried by the side of his first wife in Elmwood Cemetery, Detroit. His funeral was from the house he first built in Detroit -- now the residence of M. George B. and Daniel W. Green, cousins of his wife. Justice Brown's life should be an encouragement to young lawyers. It shows how a man without pe ____ extraordinary abilities may attain and honour the highest judicial position by industry, by good character, pleasant manners and some aid from fortune.

 

CORRESPONDENCE

Washington, D.C.

May 9, 1899

Dear Brother Kent:

I have read with great interest your admirable address upon Judge Cooley.

I am a great admirer of Judge Cooley and consider him upon the whole as the brightest legal luminary the State of Michigan has produced. His talks upon Constitutional Limitations is one of the half dozen of the best legal works which this country has produced. He and Judge Dillon were easily the leading juridical writers of our generation, though neither of them attained great eminence as practising lawyers.

But Judge Cooley was guilty of one grave mistake: He overworked his intellect grossly; gave himself no leisure or relaxation, and at our age his career was practically ended. none lamented this more than himself, but it was too late to remedy it. I heard him speak, to his students once upon this mistake, which he alluded to as the great error of his life. I have laid away your address as a model of its kind.

Very truly yours,

H. B. BROWN.

DETROIT, August 2, 1901.

My Dear Kent:

I found your kind and sympathetic letter awaiting me on my arrival at Detroit.

While Mrs. Brown's health was such as to lead her physicians to advise me to take her abroad, I can now see that it was a great mistake, though I doubt whether it shortened her life materially, as her disease was such as must ultimately and inevitably result in her death; and her long invalidism rendered it less a surprise and shock that it would have been had she been taken away in perfect health. At the same time, her very suffering appealed so strongly to my sympathies that it seems rather to have increased than lessened my grief at her loss. Her death puts an end to nearly forty years of the most unalloyed marital bliss that was ever accorded to man; and, as you say, life will never be to me again what it has been in the past.

It seems to me that it will be impossible for me to return to Washington and to our home there without her presence. I can only console myself with the thought that I exhausted every resource known to science and medical skill to effect her recovery; but it was in vain. Indeed, her health has been such for the past ten years that I never dared to calculate upon her living from one month to another.

With kind regards to Mrs. Kent, of whom I have been hearing some very pleasant things of late, I am as ever.

Your old and sincere friend,

H. B. BROWN.

WASHINGTON, D.C.

February 27, 1903.

Dear Brother Kent:

Accept my thanks for a copy of your excellent article upon Law and Justice.

I think there is a tendency on the part of all appellate courts, -- and certainly our court here is not free from it, -- to find the justice of the case, and if possible to reconcile the law with it. Of course, if the law be plain, we are bound to enforce it for the sake of uniformity, though it may work a hardship in a particular case. There is also a danger, to which you allude on page 349, that while many of the facts are before us, all are not. Indeed it is very difficult to say in a common law case, they are sufficient to enable us to decide the case upon any strained interpretation of the law, though it is different in equity case which come up on the pleadings and testimony. While we should never forget the maxim that "Hard cases make bad law," still if we are satisfied we have all the facts before us, it is proper we should consider the equities of the case in applying the law.

In some criminal cases against negroes, coming up from the Southern States, we have adhered to the technicalities of the law so strictly that I fear injustice has been done to the defendant. We have one such case before us now. It has not yet been decided or even voted upon, but it I think of it, I will send you a copy of the opinion. I know nothing more ineradicable than racial antipathy, except, perhaps, national antipathy. My experience has taught me that the natural position of two nations toward each other is one of hostility, to which there are very few exceptions.

In further illustration of what you say, I find that in determining subordinate questions, as for instance whether a particular action against an officer of the Government is an action against the Government or not, or whether a bill in equity will lie instead of an action at law, we are apt to be guided a good deal by the fact whether upon its merits we should reverse or affirm. I have often had occasion to notice that.

I am much grieved to learn of the accident to Pond, which I fear will disable him for life. Pond proves to be much older than I thought, and I imagine that it will be better for him to retire altogether, and not attempt any further work. I understand, too, that Meddaugh has had some very unpleasant premonitions of trouble, though I should think a good long vacation would do a good idea for him.

These are all sad tidings, as they lead to unpleasant suggestions with regard to ourselves.

With kind regards to Mrs. Kent, I am,

Very truly yours,

H. B. BROWN.

WASHINGTON, D.C.,

December 7, 1903.

My Dear Kent:

Thank you for your kind and sympathetic letter. The breakdown came without premonition, except a very slight one to which I inadvertently gave no attention. I much fear I shall lose my sight completely, but I am taking encouragement from the fact that good work has been done by blind men, and that some distinguished judges have been forced to rely upon the sight of others to prepare their opinions. Of course, it is a terrible affliction, but if I can avoid a nervous collapse for the next sixty or ninety days I hope I may succeed in reconciling myself to the situation, and perhaps take some further pleasure out of life. Of course, I would resign if I could do so and draw my pay; but after nearly thirty years' service upon the Bench I do not feel called upon to do when I am within a little over two years of completing my term.

I heard from Mrs. Meddaugh the other day with regard to her husband's condition, which I fear is about as bad as mine. My general health has never been better than it has been this fall, but of course that may go with a fatal disease of the eye.

Very truly yours,

H. B. BROWN,

per F. E. C.

Washington, D.C.,

February 20, 1908.

Dear Brother Kent:

Your interesting letter broke a long silence, -- so long, indeed, that I should not dare even to guess when we last exchanged letters. The truth is, my group of friends in Detroit is thinning out so rapidly that I am always glad to hear from one of them. I am beginning to feel almost a stranger there.

I am glad you are pleased with the banquet pamphlet. It was really a superb affair, and made the evening the happiest of my life. Indeed, I was almost paralysed with the splendour of the table as I entered the room. It was all so much beyond my anticipation.

I do not think we shall disagree with regard to the subject of judicial legislation. Where the law has not yet been construed any interpretation adopted by the Supreme Court must be in the nature of legislation, as it must be determined not only by the language of the law, but by the circumstances of the times and the necessity of the case. I am firmly opposed to judicial legislation where the law has been settled by a series of adjudications, and for that reason dissented from the opinion of the Court in the Income Tax and the Haddock divorce cases.

My general health has never been better, though I have lost the sight of one eye entirely and partially that of the other. I never have enjoyed life more, and I think the stories that are often heard about men collapsing when they leave the Bench is all nonsense. Of the four men of our Court who lost their minds, all of them lost them while they were still upon the Bench, while the four who left the Bench in sound condition, not only of them showed symptoms of mental weakness until their deaths. There are now three competent to retire, but no one will do so. Brother Brewer always declared that he would leave the Bench at seventy, but he pretends now that he is afraid that he will lose his mind if he does so. But I think there is much better reason than that for his remaining on the Bench. No one of them likes to take a back seat. Besides that, the wives cut an important figure, and, of course, they are always opposed to it. I think their fears are groundless, but I do not like to express to them my opinion upon the subject of retirement.

I may say that time does not hang heavily on my hands; that I have not been busier for fifteen years, though, if course, I do not work hard. A magazine I send you to-day will show you how I spend my mornings; my afternoons take care of themselves. The subject of the article is one that has received the attention of the Courts in a good many cases, but not of the law writers. I have endeavoured to treat automobiles fairly, but if you should read between the lines that I hate them, I should not quarrel with you. If the question were left to me, I think I should vote that a comfortable old age is the happiest period of one's life.

Yes, I have understood that Quinby is in failing health through feebleness of the heart. This is the weak link in my chain of vital armour, and I should not be surprised at anything. Of Quinby I have always had a high opinion.

I notice your comments upon the course of the President, and agree with you, at least partially. I think he has lost popularity during the past year among the better classes by his impetuous temper, his intolerance of criticism, and needless quarrels and his seemingly uncontrollable fondness for letter-writing and getting into print. He has too little respect for the opinions of others, and his popularity has had the effect of making him think that he is infallible. But with all this, he will go to record as the first president who has dared to attack corruption in high places, corporate abuses of various kinds, and frauds in obtaining possession of public lands. He is full of pluck and energy, and absolutely without fear. I think his letter to Admiral Bronson was a mistake, and that his last message, though abounding in good suggestions, indulged too much in sermonising and defences of assaults upon his administration. That he had better have left to his friends. While the very rich hate him beyond expression, the great mass of the people are with him, and I still consider him, with all his weaknesses, one of the most valuable presidents we have ever had. I think he is largely the cause of the present financial stringency, in which I myself have lost several thousand dollars, but I do not regard it at all as an unmitigated evil. I think it will lead, if to nothing else, to an improvement in the management of corporations and to an improved tone in our business life. From having been almost an extreme conservative all my life, I fear that I am getting to be something of a radical in my old age.

I am glad to hear that Mrs. Kent is we. Please give her my kind regards.

I sincerely hope that Taft will be nominated and elected. He is a splendid fellow, very popular, and worthy of his popularity. Of course, I take no part in politics.

Very truly your attached friend,

H. B. BROWN.

WASHINGTON, D. C.,

March 26, 1808.

My Dear Kent:

Have just received your letter and in reply would say that if we cannot welcome you here, we shall be very glad to meet you in Charlestown the week of April 6. I am a delegate from Connecticut to a triennial meeting of the Society of the Cincinnati to be held in Charlestown, April 8, 9 and 10.

We expect to reach there Tuesday, the 7th, and put up at the St. John Hotel, where the secretary has promised to engage rooms for us. If you can meet us there, I would recommend your writing for rooms, as there will be a good many people there stopping on their way north. The convention will be in session three days, and there is plenty thereabouts to amuse one for that time.

It looks now as if Taft would be nominated, but I have grave doubts about his election, though some of the Bryan's recent utterances have shaken the little faith I had in him.

Very truly yours,

H. B. BROWN.

The recent railroad rate regulation has received a stunning blow from the Supreme Court.

ESSEX COUNTY, N.Y.

August 10, 1908.

My Dear Kent:

I have been waiting for a good chance to tell you that I have already acted upon your intimation and written a biographical sketch of myself up to the time I went upon the Federal Bench. It is more befitting that my doings since that time should be written by another than myself; -- thus distinguishing between my private life and that which by courtesy may be termed public. It is written in the first person, but may be readily turned into the third person by the memorialist. I have asked my wife to send it to you, if you survive me -- if not, then to my executor, who will be instructed to pay all expenses of publication. It is a simple affair, but will be of assistance to any one who may feel sufficient interest to write a brief memorial. I am not ambitious for a regular biography.

By the way, some one (perhaps you) told me you were writing or had written a biographical sketch of Lothrop. I hope you will send me a copy, as I was a great admirer of his.

I have just read your criticism of Brown's edition of "Austin's Theory of Law," and while I am not sufficiently acquainted with Austin to act as judge, I quite agree with you in your defence of Mr. Carter's address upon judge-made law. In declaring the law where there are no precedents, they necessarily make it. I had occasion to allude to this subject in my address at the Bar dinner.

I was also much interested in your article upon Legal Ethics, concerning which it seems to me there are two standards, (1) as between the lawyer and his client, where the utmost frankness and fidelity are required, and (2) as between counsel and the Court and opposite counsel, where everything is permitted that does not involve trickery or an attempt to deceive.

I am quite pleased with Taft's prospects. Nothing but the financial situation and the ugly fight that Foraker may make in Ohio can defeat him. Bryan seems to have no fixed principles and has become a political bore. The only proposition he ever really stood for was the silver standard, which every one now admits was a mistake, a delusion and a snare.

I don't wonder the betting is all in favour of Taft. I never really myself for a moment doubted the sincerity of Roosevelt's original withdrawal, and am glad that he adhered to it, as I fear he would have been beaten.

We are visiting the Adirondacks for a few days.

With kind regards to Mrs. Kent, believe me,

Sincerely yours,

H. B. BROWN.

Always address me at Washington.

WASHINGTON, D. C.,

May 28, '09.

My Dear Kent:

I have just resurrected your last letters of September 15 and October 29, 1908, which I ought to have acknowledged long ago, but laid aside for a more convenient season which has just arrived. Since then much has taken place -- mostly of an agreeable character.

Roosevelt, who spent the last two years of his incumbency in pulling down the great reputation he made during the first six years, has disappeared in the wilds …

please proceed to Part VI, pp. 101-120