APRIL 6, 1943
Services held by the Supreme Court of the State Michigan, on Tuesday, April 6, 1943, at 1:00 p.m.
It has been a custom of the Court, which we are glad to follow today, to set apart this first day of our April term as a memorial to the late Justice Louis H. Fead. The Court is gratified to see so many here—I see here the President of the State Bar—the Executive Secretary—I think one or more commissioners—and a large number of the friends of Justice FEAD. The Court has been advised that Mr. Roscoe Bonisteel, of Ann Arbor, will speak on behalf of the State Bar. Mr. Bonisteel is a former President of the State Bar and was a very dear friend of Justice FEAD. Mr. Bonisteel, will you speak for the State Bar?
May it please the Court:
Comes now the State Bar of Michigan and joins with the Court in this service to the memory of
LOUIS HENRY FEAD.
We are not interested in a panegyric: the press of Michigan has heaped encomiums upon him over the years—that is all a matter of record. Our tribute is simple and plain.
Born in the town of Lexington on the shores of Lake Huron, May 2, 1877, LOUIS HENRY FEAD spent the first 16 years of his life there as any normal American boy. Here he could look out over the waters of that great inland sea and, in the morning, witness the sun rise in all its glory, bringing with it light, lustre, and cheer. Sometimes he would witness the winds and the storms lash the waters into a fury and afterwards would come peace and calm. His unobstructed view to the far-off horizon in the East may have helped to develop the breadth of vision he possessed in later life. He looked out and not down. Perhaps the scenes of his boyhood helped him to develop the sunny cheer that marked his personality. Maybe the lessons of nature on Huron’s shores taught him cheerfulness, calmness, and patience—three of his many fine traits.
He was the eighth child born to John Lawrence Fead and Augusta (Walther) Fead. He graduated from the Lexington High School as valedictorian of his class in 1893, at the age of 16. He attended Olivet College, and the college subsequently conferred upon him the degree of Doctor of Laws. In 1897 he moved to Detroit where he worked in the law office of Bacon & Palmer, and attended the Detroit College of Law, and in 1898 he enrolled in the Law School of the University of Michigan where he received his Bachelor of Laws degree in 1900.
Still in love with nature and the great outdoors, he started the practice of the law in Newberry, the county seat of Luce county, in the beautiful upper peninsula where nature is rampant. In this sparsely inhabited county, he was elected prosecuting attorney and held that office from 1901–1913. Here is learned to know people, and the obligations and responsibilities of public office. He performed the duties of the office with understanding and integrity, so much so that the people of the eleventh judicial circuit elected him circuit judge from 1913–1928. Thus began a judicial career that will measure up to the very best in Michigan’s judicial history. Then began the generic comments made by our Supreme Court from time to time regarding Circuit Judge FEAD’S opinions:
“The learned circuit judge fully states the facts involved and the law applicable thereto. We, therefore, adopt it as our own.”
“An examination of the record satisfies us that the trial court did not commit any error in the admission of testimony, and the charge of the court so clearly stated the rules of law that are controlling in the case that a discussion of them is not necessary.”
As prosecuting attorney, he was a careful investigator of the facts and the law, and he continued this practice as circuit judge. He was making a record during these years which did not go unnoticed, and when the State of Michigan took action against the Israelite House of David to abate an alleged public nuisance, the presiding circuit judge of the State assigned Circuit Judge FEAD to hear it. It is reported in 246 Mich. 606; and on page 610 we read the following:
“The cause came on for hearing on May 16, 1927, and occupied 51 days of actual trial, extending over a period of three months. About 225 witnesses were sworn, over 500 exhibits introduced, 73 depositions taken, and the record contains about 15,000 pages of testimony, including the depositions.”
And our Supreme Court on appeal, after quoting from Circuit Judge FEAD’s opinion, said, page 612:
“The foregoing is quoted from an exhaustive and carefully prepared opinion of the trial judge covering upwards of 190 pages of printed record, wherein he has presented a review of the facts and issues which is conclusive of the painstaking manner in which the case was tried.”
And so one could continue to set forth specific illustrations of his abilities as a circuit judge. The record has been made, and the bar of this State is fully cognizant of its splendor.
During the years of his public service as prosecutor and circuit judge, he found time to engage in commercial and banking enterprises so that he became familiar with the economic side of life by actual business experience, besides what he learned in his professional activities. He was vice-president of the Newberry State Bank until he became a member of this Court, and a member of the F. P. Bohn Company of Newberry.
He loved people, and people reciprocated. He was always willing to render service for the people and gave vent to his sincerity by serving in community activities—during the first world war, he was an active participant in all the loan drives, the Red Cross, and other war activities. He was not satisfied and felt that he must make a more definite contribution to the war effort, so he joined up with the American Red Cross for overseas duty and served in France as a captain from August, 1918, until April, 1919. Upon his return to America, he took up his duties as circuit judge, having been granted a leave of absence.
On the 19th day of September, 1919, he married Marion McPherson, daughter of former State Banking Commissioner Hugh A. McPherson of Howell.
There were four children born of the marriage: Marion Augusta, William Alexander, Nancy Louise and Louis McPherson. He was happily married and brought to the home the same fine characteristics and attitudes that had previously marked his private and public career.
On February 21, 1928, Governor Fred W. Green appointed Circuit Judge Fead a justice of the Supreme Court to succeed Chief Justice RICHARD H. FLANNIGAN who died February 17, 1928, and, under the rules, the newly appointed justice became Chief Justice of the Court, The first reported case of Justice FEAD appears to have been that of the First Church of Christ Scientist v. Rentzei, 242 Mich. 120, decided April 3, 1928. From that time until Justice FEAD left the bench in 1937, he participated in the decision of 5,240 cases in which opinions were served, and, without actual count, it is reasonably estimated that he wrote well over 700 opinions, in addition to his participation in consideration of motions and other applications made to the Court. This record is a convincing argument for his reputation as a hard-working member of the Court.
From the opinions written by a justice, you can frequently make a fair appraisal, not only of his judicial ability, but of his personal character and attributes as well. Time would not permit me to review all the opinions Justice FEAD wrote, but, believe it, the bar is sensitive and reacts quickly to assertions made in written opinions, and one sometimes gains a vivid impression of the human traits of the justice. His attitude toward patience with members of the bar is illustrated by this quotation taken from one of his opinions:
“Patiently, we again call attention to the rule that such points not raised in the circuit court will not be here considered to reverse a judgment.”
In one opinion, Wojewoda v. Rybarczyk, 246 Mich. 641, involving suit for damages for injuries received from a dog’s bite, witnesses testified that plaintiff ran over first base and upon the dog. Justice FEAD took judicial notice of the rules of a national game and said:
“Overrunning first base is practically a universal practice in the national game. The rules provide for it.”
In People v. Nixon, 243 Mich. 630, reversing a conviction, illustrating the principle of fidelity to duty, he said:
“At such a time, it becomes the special duty of officers of the law to use caution as well as vigor in investigation and of courts to stand firm for orderly procedure and cold, passionless justice.”
One can get a clear view of Justice FEAD’s progressive social thinking in his opinion adopted by this Court in Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673, holding the declaratory judgment statute constitutional. He held:
“A sovereign State is not a government of granted powers, but it has inherent powers enabling it to attempt solution of any social problem arising from current conditions, and it may adventure into experiment for the public welfare.”
In Hilt v. Weber, 252 Mich. 198, relicted land decision, he insists on the integrity of government. He used this language (p. 224): “The State must be honest.”
In the last decision written by Justice FEAD as a member of the Court, reported in Briggs Commercial & Development Co. v. Finley, 283 Mich. 1, he used this language in the opening sentence—it illustrates his directness: “I think the judgment should be affirmed.”
The eulogy of Justice FEAD in relation to his work as it Justice of the Supreme Court should no doubt come from the Court itself, but we of the bar of Michigan wish to pay our tribute to a great man, an able lawyer, and one of Michigan’s greatest judges. He made a great impression on the bar of this State.
Recently, in discussing Justice FEAD, a prominent lawyer said to me:
“I was always impressed by his practical approach to a legal proposition and the common sense he invariably used in deciding matters; also, his freedom from erudition.”
And to this should be added the firm conviction of? Justice FEAD, that it is the duty of the courts to protect the rights of the citizen as against the forces of government if we are to preserve a free government.
A quotation from the citation read at the time of the conferring of the Doctor of Laws degree by the University of Michigan in 1934 succinctly sets forth his personal and judicial qualifications, and is a fitting memorial to him:
“A progressive exponent of the law, conscientious and courageous in the administration of justice, and esteemed by the citizens of his commonwealth, he maintains the authority and supremacy of the State in its conflict with the disruptive forces of society. Salle in his keeping are the traditions of an informed judiciary, on whose decisions rest the faith and hopes of democracy?”
When he died, on February 4, 1943, we—a1l of us—lost a friend and counsellor-—the State of Michigan, a great public servant.
I had the privilege of visiting with him frequently before his death. He was very happy in the association he had made after leaving the Court and thoroughly enjoyed the practice of the law. He did miss his close comradeship with the members of this Court and this attachment was very dear to him.
He was every bit as courageous in the face of death as he had been in life. His thoughts were always for others. He had an insatiable desire to serve: to be of help. The light of loving kindness that peered out from his expressive eyes and that twinkle that came in them when he was about to make a humorous remark will never be forgotten by those who knew him. He was modest and kind.
There was an indefinable something about him that made you at once respect him and at once love him.
Sometimes, I think the greatest eulogy you can pay a man is to say to him, sincerely, “I am glad you were born.” Certainly, we are glad that Louis HENRY Fead was born. His earthly career will serve as an inspiration to the lawyers and judges of Michigan for all time.
On one occasion when Justice FEAD was participating in a memorial service of this kind, he used the following language in speaking of two circuit judges who had died:
“Extended or fulsome praise would add nothing to their merits nor to the value of their splendid public services and private lives. Each was a lawyer and judge, maintaining the high traditions of the bar and bench. Each was of fine character and a good citizen. Each was a neighbor to his community. What more can be said of a man!”
It is concise and to the point; it summarizes every- thing in one short paragraph. We adopt it as our own concluding statement.
Chief Justice Boyles:
Thank you, Mr. Bonisteel. Your words find a ready response with the Court. I have heard reference made to the former service performed by Justice FEAD in his eleventh judicial circuit. Judge Runnels has very kindly gathered together the bar of the Upper Peninsula and performed a service for us by, as I have been informed, having the former judicial circuit of Justice FEAD represented here- perhaps with resolutions. Mr. Joseph J. Herbert, I understand you have been asked to represent Justice FEAD’S former circuit.
Mr. Joseph J. HERBERT:
May it please the Court:
On behalf of the bar of the eleventh judicial circuit, I have the honor to offer certain resolutions with reference to the life and death of a great lawyer, a great judge, and a great gentleman. The resolutions which I have before me were assigned for preparation to three most distinguished members of the bar of that circuit, all three of whom knew Louis HENRY FEAD well from the day that he started his practice in the upper peninsula of Michigan, and, with leave of Court, I should like to read and present this resolution:
“Forty-three years ago, there came to our judicial circuit a young man newly graduated from the law department of the University of Michigan, armed with his legal degree and unusually well-equipped by temperament and preparation for the practice of law and for those judicial honors and responsibilities which he was destined later to assume. “Louis H. FEAD came to Newberry, in the upper peninsula of Michigan, early in June, 1900, and began the practice of his profession there. Almost immediately after his arrival, he was nominated and elected prosecuting attorney, holding that office for the next succeeding 12 years and until his election as judge of the eleventh judicial circuit.
“This small village might seem to have offered very little attraction for an ambitious young lawyer, but it was a thriving, lusty and self-conscious community, as were many such towns in the lumbering district of the Upper Peninsula, with an intense local pride and cohesion. The young man appeared to have exactly fitted the community and to have affection of its civic and business leaders.
“From the first, he took an active part in the social and business affairs of his new home, and while he was sharpening his legal spurs, he was also participating in the business affairs of his community. In May, 1905, he joined the private banking firm of F.P. Bohn & Company, which was later organized as the Newberry State Bank, and the young lawyer became its first vice-president.
“In his business, an in his professional relationships, he showed the same sound judgment of men affairs as in his legal reasoning. Unconsciously, he was laying the foundation of those qualities of sound business judgment and affairs that were to shine later through his judicial pronouncements, and at this early period, as throughout his admirable career, he showed that remarkable capacity for friendship which characterized his life’s work.
“During his entire career, he inspired the esteem and deep affection of his entire judicial circuit. He continued always a part of it, always the friend and counselor.
“Louis H. FEAD was elected judge of the eleventh judicial-circuit of Michigan in 1912, and started actively on January 1, 1913, upon a judicial career which continued until his retirement as Justice of the Supreme Court in 1937. At the time of his election to the bench, he was one of the youngest, if not the youngest, circuit judge in Michigan. If, during his early career as judge, he lacked maturity in years, it was more than compensated by the maturity of his judgment and throughout his entire judgeship, he maintained the unbroken esteem and confidence of the bar of our circuit and the deep affection of his circuit court officers.
“On March 1, 1928, Judge FEAD became Justice FEAD of the Supreme Court of Michigan by Governor Green’s appointment, to fill the vacancy caused by the death of Justice Flannigan, also of the Upper Peninsula, and continued as Justice of the Supreme Court until 1937.
“As circuit judge, he was indefatigable in his study of the law and never hesitated to disregard technicalities in his search for justice. His reported decisions as Justice of the Supreme Court show the same painstaking search after substantial justice and the same fearlessness in the abandonment of inept precedents. His decisions were more sound than spectacular. In his work, as in his life, he kept the even tenor of his way. Out of Justice FEAD’s abounding energy, he was able to devote time and service to the social activities of his State, aside from his business and personal activities.
“He served as captain in the American Red Cross overseas during the first world war, and was Grand Master of the Grand Lodge of Michigan Masons during 1917 and 1918. In addition to his fraternal activities, he was an active and honorary member of the Rotary, Kiwanis, and Lions Clubs.
“Judge FEAD was married to Marion McPherson, of Howell, Michigan, and is survived by his widow and four children.
“He was an active member of the Episcopal Church and from time to time participated in its service as lay reader.
“To us of his home district, he has left the fragrant memory of an honorable gentleman and the lasting sorrow of a true friend departed. The record of his career is an inspiration to his successors.
“Therefore, we, the members of the bar of the eleventh judicial circuit, respectfully present this appreciation of our friend, associate and neighbor and resolve that it be spread at length upon the court proceedings of the respective counties in the circuit, Chippewa, Schoolcraft, Luce and Alger, and that a copy of the same be respectfully presented to the Supreme Court at its memorial service on April 6th.
“Resolved further, that a copy of this memorial be sent to Mrs. Fead and the children.”
This resolution is signed by
“HERBERT W. RUNNELS
“FRANK P. SULLIVAN
“ROBERTS P. HUDSON”
Chief Justice Boyles:
Thank you, Mr. Herbert. The resolutions will be spread at large upon our records, and published. And the Court would consider it quite appropriate if it would hear from someone of the Detroit Bar where Justice FEAD concluded his long service and profession. Is Mr. Ferris Stone present?
Mr. Ferris Stone:
Yes, your Honor.
Chief Justice Boyles:
Mr. Stone, will you speak for the Detroit Bar?
Mr. Ferris Stone:
If the Court please:
It is a high privilege to pay the respects of the Detroit Bar Association to the memory of one of its great members. Judge FEAD came to Detroit, after having been a member of this Honorable Court, at the very height of his career and at the zenith of his mental powers. He stepped at once into a well- deserved place of leadership at our Bar. And fortunately, he found great work to do, as you gentlemen of this bench well know. Happy, indeed, were we in Detroit to have him among us, He freely gave his counsel, not only to his immediate associates to whom his curbstone opinion was the best law we could find, but to his brethren of the bar at large. To many a story told by a bewildered brother lawyer he listened with patience. Some- times his advice was that the case but for a miracle was lost—but, having been a judge himself, he never quite gave up his belief in miracles. Many a brief we have found in his office in cases with which he had no formal connection but in which he had been consulted and in which he gave his good counsel. He served the Detroit Bar Association for a number of years as chairman of its very important judiciary committee, a most difficult task, where his judicial experience was of very great value. He filled a unique place among us. We shall not be able to fill his shoes, for men of his calibre are not born every day. It is a tragedy to us that he has been cut off at a time when his usefulness to us of the Detroit Bar was at its flood tide. His great career has been dealt with here today by men who are more adequate than I to appraise it. But I wish to say personally, this tribute to my brother at the bar, my partner, and my very dear friend. I think Louis Fead’s life is a ringing challenge to those of us mortal men who become overwhelmed and oppressed by the littleness of life, by its brevity, by the helplessness of man when confronted by the vastness of his universe. The psalmist caught this note of the smallness of life when he contemplated the stars, and cried out “What is man that Thou, O God, art mindful of him’?” Man’s life span seems so insignificant. It creates a profound pessimism from which he can find comfort neither in the dogmas of religion nor in the great hypotheses of science.
John Burroughs, that very great and loving soul, facing the mystery of death without hope, says in his Sundown Papers:
“I know that I am a part of the great cosmic system of things and that all the material and all the forces that make up my being are as indestructible as the great Cosmos itself. * * * But consciousness—the real Me * * * It is really no more a thing than ‘a child’s curlicue out by a burnt stick in the night’ and as the one is evanescent, why not the other?”
I say that Judge Fead’s life is an answer to all this pessimism. His life proclaims the majesty and worthwhileness of human lite, curlicue though it may be when compared with the vast reaches of time. For Judge Fiske, life was a great adventure. He went forth as did Odysseus of old, with a faith in himself, with a confidence in the goodness of things. Like Odysseus, he visited the land of the lotus-eaters but he did not tarry there. He stalked Cyclops in his cave; he heard the Siren’s song, not I think entirely devoid of feeling; he outwitted crafty Circe; he sailed fearlessly and successfully between Scylla and Charybdis. He lived, and into 65 years he packed great accomplishments and great adventure. His life is an example of what American youth may yet do. And while we mourn him and deplore his too early passing, who among us shall say that his life was not completed? Who may say that he did not complete that spiritual structure, the building not made with hands?
It is, I think, the fate of every judge, be he great or otherwise, that his work in the law is bound to lose its individual identity and become merged in the great corpus juris. You upon the bench of this (lonrt, and those who have preceded you, and those who in the future will come, are in a great sense followers of Buddha. Your opinions will, by and large, End their places in Nirvana. They will be absorbed into the great unity of the law. Great as the work of Judge Fun upon this Court was, his will likely meet the same fate. It must be in the greatness of his life, and in his friendship, that we must enshrine him in our hearts, and many a man I think may say of him, as did Bright of Cobden with whom he had worked so many years, “after 20 years of intimate—almost brotherly—friendship with him, I little knew how much I loved him, till I had lost him.”
Chief Justice Boyles:
Thank you, Mr. Stone. The Court appreciates that eulogy very much. Perhaps it would be proper if we should hear from another member of the law firm with which Justice FEAD was associated in the practice in Detroit. Can we expect Mr. Macdonald to say something? Mr. Edward Macdonald.
Mr. EDWARD MacDONALD:
May it please the Court:
I undertake this task with some diffidence. To attempt to extol the virtues and appraise the char- acter of a dear friend upon such an occasion as this is bound to leave one with a sense of futility. To epitomize in a few words the impressions of a life- time is impossible. Louis Fead and I first met 30 years ago. He was a young judge; I was a young lawyer. To be more specific, he was 36 and I was 29. The circumstances which served as the occasion for that meeting are not of importance now; no doubt they are entombed in the dusty records of Alger county. But they were of enormous importance to me then and perhaps that is why the impressions which that young trial judge made upon me were so lasting. Those first impressions were never changed during the years I practiced before him. In recalling and endeavoring to evaluate now the qualities which, in my opinion, gave him preeminence as a judge of the circuit court, I am remembering that first meeting when he was a young judge, learning his job, and I was a young lawyer learning mine.
First of all, patience—patience to listen to the dull and the stupid, to the fumbling beginner as well as to the experienced, practitioner, to bear the tedious monotony of a long court day with equanimity and good humor. “From duty’s path, how- ever steep, he asked no release.”
Next, courtesy—that sense of propriety and innate decency which governed the conduct of his courtroom and so ordered his relations with the bar that the amenities which prevail among gentlemen were always preserved. He never humiliated counsel by ill-timed, irritable or sarcastic observation.
Then, understanding—not of the intellect but of the heart, a compassionate, tolerant, humorous understanding of the frailties of mankind, that essential quality of judgeship to which Portia ap- pealed and without which wisdom is vain. “Wisdom,” said the psalmist, “is the principal thing; therefore get wisdom, and with all thy getting, get understanding.”
When to these desirable qualities are added, as was certainly true of Judge FEAD, a fine legal mind, all of the elements most apt for ideal administration of justice are conjoined.
Perhaps the conditions which prevailed in the practice of law in the upper peninsula of Michigan contributed to the development of the judge as well as the lawyer. The holding of a term of court was the occasion for gathering of lawyers from many different counties. They prepared their cases well, they tried them hard, and when the day’s work was ended they met together in the evening, the judge included, for rest and recreation. These extra— judicial contacts of the judge and the lawyers bred a mutual liking and respect which carried over into court the following day.
The upper peninsula of Michigan has sent many of its able trial judges to this Court—Grant, Stone, Steere, Flannigan, and Fead. I knew them all. None ever achieved to a greater degree the distinction which Judge FEAD himself once described as the test of a successful life—to be a neighbor to his community.
He was proud of his service on this Court of which, as an institution, would hear no criticism. When he laid aside his judicial robes and entered upon the practice of the law he did not leave the Court behind, he took it with him. He was a judge to the end.
I was with him when he got the bad news. “I can’t believe it,” he said, “so far as the way I feel is concerned I am just as good a man as I ever was.” And with foreboding in my heart, I might have given expression to the unspoken thought—”And you are exactly the same friendly, cheerful, helpful man you were when I met you 30 years ago in that little courtroom looking out on the blue waters of Lake Superior, and the world was young for both of us.”
He would have liked to hear the nice things we have been saying about him today; let us hope he is listening.
Chief Justice Boyles:
Thank you very much indeed. I see so many members of the Circuit bench and other Courts of record here, it seems rather the Court should feel if nothing further is to be offered, Justice Wiest, who sat with Justice FEAD so many years on this bench, will speak for the Court. Justice Wiest.
This is memory’s hour, when tributes of our respect and esteem for the departed are placed upon the records of this Court.
He possessed eminent judicial qualifications- such as legal attainments, keenness of perception, an analytical mentality, clearness of expression, pleasing personality, and a fixed determination to maintain and apply public and private law. He was an esteemed member of this bench for 10 years, coming here with 15 years’ experience as a judge of a northern circuit. The opinions of this Court, written or approved by him, are to be found in 42 volumes of our decisions. There stands his monument, amid the annals of living law, recording judicial work of lasting benefit to the State and of future guidance to the Court and to the profession he honored.
In his departure, the State has lost a sterling citizen; the law, an outstanding advocate; the judiciary, a splendid exemplar; and each of us, a personal friend.
When the last solemn rites of his beloved church were held, we could Well say of him in the Words of the old hymn,
“The pains of death are past, / Labor and sorrow cease; / And life ’s long warfare closed at last, / His soul is found in peace.”
Chief Justice Boyles:
All that has been said here today will he spread upon the records of this Court and published in the bound volume of the opinions of this Court.
In honor of the memory of Justice FEAD, the Court will now rise and stand adjourned until tomorrow morning.