October 6, 1998
CHIEF JUSTICE MALLETT: Good morning ladies and gentlemen. Welcome to the first day of the October 1998 session. We are grateful that all of you have come to join us yet again. It is our tradition to open our term in this room, in what is the old Supreme Court facility, to make familiar to all of the people of the State of Michigan with the work that we do by examining regularly the history that this Court is responsible for. Our partner in that effort is the Michigan Supreme Court Historical Society, whose president is Mr. Wallace Riley, who has presided at these events any number of times. We are always grateful for his participation and effort on our behalf to make clear what the Court has done and to celebrate with us the achievements of the Court. At this time, it gives me great pleasure to introduce the president of the Michigan State Supreme Court Historical Society, Mr. Wallace Riley.
MR. RILEY: Thank you, Your Honor. Mr. Chief Justice and justices of the Supreme Court assembled here today for the opening of the 1998-99 Court term, members of the bar in attendance, and ladies and gentlemen, as the Chief pointed out, this is now the fourth consecutive year that you have held the opening of Court in these old Supreme Court chambers. As you know, the last regular session of this Court was held in these chambers on March 3, 1970, with Chief Justice THOMAS E. BRENNAN presiding. Then on October 10, 1995, we began what is becoming a tradition of hearing the first oral argument of the term in these chambers. This Court knows from past reports that we have been actively involved among our many activities of commissioning and presenting new portraits of justices, as well as cataloging and photographing all the existing portraits of former justices. We have set forth with the Court’s blessing the criteria for the custody and care and location of these important items of state property. In earlier times before such a standard of care and concern existed, some portraits or their framings were seriously damaged. We have undertaken to restore these treasured portraits with the professional assistance of Mr. Ken Katz and his organization, Conservation and Museum Services. This portrait and the frame restoration effort has gone on now for over a year, so that today we are able to return to the Court the restored portrait of your sixteenth justice, the Honorable NATHANIEL BACON, who served from 1855 to 1857. So it seems only fitting that you receive this portrait and that as you receive it you should become reacquainted with some of the history of your colleague of an earlier time, who served on your Court, but served even before these chambers were built. So with the Court’s permission for that introduction, I would call now upon former Chief Justice THOMAS E. BRENNAN to tell you about Justice NATHANIEL BACON.
JUSTICE BRENNAN: Mr. Chief Justice, justices, may it please the Court. On June 4, 1901, Mr. Frederick Bacon of St. Louis, Missouri, presented to the Michigan Supreme Court a portrait of his father, NATHANIEL BACON, who was one of the circuit judges who served on the original Supreme Court of Michigan. Then-Chief Justice ROBERT MONTGOMERY accepted the painting on behalf of the Court, and he ordered it hung in this very courtroom. How long it remained on exhibit here no one really knows. But sometime during the intervening ninety-seven years the portrait was taken down and relegated to dusty storage. Ultimately it became the victim, if not of deliberate vandalism, at least of gross indifference to its care and preservation. In 1996, the Executive Director of the Michigan Supreme Court Historical Society, Ellen Campbell, came upon the damaged portrait during an inventory of the Court’s artwork. The canvass was literally shredded in a dozen pieces. I have a picture of it here, if the Court please, and you can see readily from the markings on it how badly it was ripped up. Through the loving and meticulous restoration of Mr. Katz, the portrait has been renewed, and the Society is pleased to return this valuable piece of art to its rightful place of honor.
This is an occasion, if it may please the Court to indulge me, when men and women of sensibility to historic perspective will find themselves contemplating the threads of human existence that connect this sitting Court to the man’s whose likeness has been renewed and returned. NATHANIEL BACON was a New Yorker of English puritan descent. His son described him as kind and charitable, strong, earnest, industrious and upright, but also somewhat austere. A man of simple taste, few pleasures, and a sense of duty that kept him on the straight and narrow path. Volume 124 of the Michigan Reports, which contains the record of the BACON portrait presentation, was published more than thirty years after his death. Still it holds a number of interesting tidbits for us to think about as we connect in this brief moment with our collective past. Scougale v Sweet, page 311 of that volume, for example, reminds us of a day when the playing of baseball on Sunday was a misdemeanor, punishable by a fine of $10. Of a day when the State of Georgia was able to prohibit the movement of freight trains on Sunday, even those engaged in interstate commerce. Indeed, of a day when Chief Justice KENT was quoted with approval in defense of laws against public blasphemy, saying we stand equally in need now as formerly of all that moral discipline and of those principles of virtue that help bind society together. Both Scougale and the later case of Eikhoff v Gilbert, at page 353, recall a time when public officials were still able to bring libel actions against those whose false publications defamed their good names and reputation, and scurrilous negative campaign leaflets could lead to their authors being hauled to the bar of justice. And then there was Renaud v Bay City, at page 29, a suit for personal injuries resulting in a miscarriage, in which the Court held that the plaintiff, a married woman, could not be asked if she had sexual intercourse with her husband after the accident. Such testimony, the Court said, would be inadmissible as to public policy. Browsing through these and other cases through the musty buckram bound reports in my office yesterday afternoon, I could not help but ruminate about the flow of human history that the Twentieth Century has witnessed. It is as though this portrait of BACON had been like that of the fictional Dorian Gray, its visage twisted and corrupted with the passing decades as our state and nation drifted farther and farther from those puritan notions of propriety that Judge BACON and his contemporaries so cherished. To be sure no one today would suggest that a Sunday afternoon Tiger baseball game is an unlawful assembly. Of course the constitutional question may well be moot since the statutory minimum of thirty riotous persons might be hard to find at Tiger Stadium considering their record. But there was a simplicity and an innocence in the hearts and the words of people a century ago that is etched in painful contrast to the ugliness and amorality of public life in America today. And the contemplation of it makes us yearn for a better time when decency and civility and integrity may be restored to our public institutions and to our social discourse. So on behalf of the Michigan Supreme Court Historical Society and the men and women whose generosity has made this day possible, I tender this rehabilitated portrait of NATHANIEL BACON in the hope that its return here in pristine condition might in some way symbolize our own capacity to be renewed and inspire us in a common resolve to do whatever we can do to restore public respect for the dignity of public servants. Mr. Katz, would you be kind enough to unveil the restored portrait of Justice NATHANIEL BACON.
MR. RILEY: Things old become new.
CHIEF JUSTICE MALLETT: Thank you Mr. Riley. Ladies and gentlemen, I hope you have seen why these events on my Court schedule are very important. Why the members of the Michigan Supreme Court look forward to this day as not just the opportunity to see friends that we have not seen in awhile, but in fact to be part of an historical occasion. Having today the return of a portrait of a member of our collegial body, and yet again an opportunity to acknowledge the extraordinary work of our own sister here, PATRICIA J. BOYLE. We have the opportunity to recognize the presence of Chief Justice THOMAS BRENNAN, former Michigan Supreme Court Justice JOHN FITZGERALD. To share this opportunity and this day with the Executive Director of the State Bar, Larkin Chenault, and our new president, Tom Lenga. Ladies and gentlemen, this is the new president and leader of the lawyers in our state. We also want to recognize one of the litigants, one of the persons who has an extraordinary interest in the outcome of the case that will be presented here this morning, mayor of our host city, David Hollister. I want to also pay recognition to the Executive Director of the Michigan Supreme Court Historical Society, Ellen Campbell. She really does manage an extraordinary operation, and we are grateful for her efforts on our behalf.