In Memoriam Flavius L. Brooke

JUNE 14, 1921

Upon the convening of court on Tuesday, June 14, 1921,  WILLIAM L. CARPENTER of Detroit, formerly a Justice of this court, presented the following resolution, prepared by a committee of the Wayne County Bar Association, and moved the court to place it on the records of the court.

May it Please the Court: FLAVIUS L. BROOKE, a Justice of the Supreme Court of Michigan, died very suddenly January 21, 1921, in the 63d year of his age, a few days after he had completed 20 years of service as a judge in Michigan courts.

He was a native of the Province of Ontario, Canada, and came to Michigan in 1885. In Ontario he had obtained a literary and professional education and he was admitted to the Michigan bar soon after he arrived in this State. Until he became a judge in 1901, he practiced his profession in Detroit. During part of this time he was associated with John Atkinson, William L. Carpenter and Henry A. Haigh, in the firm of Atkinson, Carpenter, Brooke & Haigh, and during part of the time he was associated with Hinton E. Spalding, in the firm of Brooke & Spalding.

He commenced his judicial career January 1, 1901, as a judge of the Wayne circuit court. Before he had been on the bench a year he proved himself an excellent judge and each year thereafter he became a better judge and sensibly increased his judicial reputation. In consequence of this, in 1908, when there was a vacancy on the Supreme bench, which according to custom should be filled by a Wayne county lawyer, his was the only name suggested and he was with practical unanimity selected to fill that high office.

What has already been stated concerning his career as a circuit judge may likewise be said of his career as a Justice of the Supreme Court. He was an excellent Justice from the beginning and became better each year, and at the time of his lamented death he occupied a place, and had demonstrated his right to occupy a place, in the first rank of judges.

Justice BROOKE’S success as a judge was not foreseen by the members of the bar who knew him best. They had not expected that he would be more than an ordinary judge. Their mistake was due in part to their attaching too much importance to the fact that he was not deeply learned in the law and in part to the circumstance that he possessed other qualities more important for judicial eminence which in his career as a lawyer he had never displayed. He possessed characteristics which distinguished him from other judges of his rank–those will be hereafter referred to–but those which did most to make him the extraordinarily good judge that he was were those which are possessed by all great judges. He had unusual natural perception of the meaning of legal principles and unusual ability to select and state the important facts in a case and, to apply to those facts the legal principles involved. With a generous sympathy for those of all classes and conditions and a kindly tolerance of human imperfections, his judgment both of men and of things was acute, dispassionate and independent.

His sense of justice was keen and it was informed and guided by the fundamental doctrines of the law, but did not greatly regard mere precedent. It was his determination to decide every case that came before him in accordance with that sense of justice. And it was, we repeat, these characteristics, particularly his determination to decide cases in accordance with his sense of justice which, more than anything else, made him the extraordinarily good judge that he was. He possessed a quickness of apprehension and facility for ready expression rarely possessed even by judges of his rank. There were few judges indeed who could so quickly reach a conclusion and so quickly write a creditable
opinion expressing that conclusion. These characteristics enabled him to, and he did, speedily dispatch judicial business.

It cannot be said that any decision he ever made lost the whole or any part of its value because its announcement was unduly delayed. Speedy dispatch of judicial business was a habit with him and was one of his conspicuous characteristics, and it contributed very much indeed to make his judicial services useful; useful to the parties to the controversy, useful to the court of which he was a member, and useful to the State.

He abhorred any process of technical reasoning which led to an absurd or an unjust conclusion and he frequently exerted his unusual talents in writing opinions justifying the rejection of such reasoning.

What sensibly contributed to making him an efficient judge was a trait in his temperament that made him interested in everything and in everybody. He was therefore never bored by, but was interested in, every case that came before him for consideration. He considered it not as an abstract problem, but with an intuitive appreciation of the concrete practical situation that it presented. His legal learning was indeed less than that usually possessed by judges of his ability. This however did not, as already stated, prove a serious handicap. In his case this defect was in part remedied by his keen sense of justice and it was more than compensated by his possession of other and more important judicial qualifications.

The careful student of his career and of the careers of other judges, some of them great judges, notably Chief Justice JOHN MARSHALL, will readily concede that of all the supposedly essential judicial qualifications that of legal learning is of least importance.

Justice BROOKE was a genial, cordial man, and possessed a charming personality. He was a generous man, an unselfish man, a courteous man, a considerate man, a public spirited man, a candid man, whose methods were always direct. He was an extraordinarily sincere man. These personal qualities were so marked that they were apparent to everyone who saw him, and they sensibly contributed to his success as a judge. They were more apparent, however, to those who were brought in immediate contact with him. They made for him a wide circle of friends in every class and in every rank of society, who, because of these qualities, entertained for him a heartfelt affection and mourn his loss with a sorrow that time alone will assuage. In his death the State, the community in which he lived, his associates, the bar and these friends, have sustained a great loss.

The personal characteristics described in the memorial I have just read contributed much less to Justice BROOKE’s success as a judge than did his purely judicial characteristics. None the less, those personal characteristics were in my judgment of far more importance than were his judicial characteristics. His judicial characteristics made him an extraordinary judge. His personal characteristics made him the most loyal and most serviceable of friends. I cannot speak on this subject impersonally. He was my intimate personal friend for three and thirty years. He rendered me all kinds of efficient and valuable service. But the greatest service he rendered was to give me his companionship and society. These to me were sources of great joy. His death to me is an irreparable loss. I am sure that in making this statement I am only saying what each of his innumerable friends would say.

Justice BROOKE took a peculiar pleasure in rendering kindly service to everyone with whom he came in contact, not only to those who were worthy or those who were attached to him by bonds of friendship. It was enough to him that one was in need of his assistance. Nor did he wait to be importuned. He was as vigilant to discover as he was ready to relieve distress. Nor did he content himself with rendering pecuniary assistance; though that he did render if it was the appropriate assistance. He gave himself. He took time to study each case and to devise the best remedy for relief and he spared no pains to make that remedy effectual.

After he became a Justice of the Supreme Court he came to my office one day and said, “Carpenter, we can by our united efforts get for a certain man a certain position,” which he named. It was a position of responsibility and honor and carried a good salary. I was not enthusiastic; I said that I did not think the man altogether worthy and I doubted if he would properly perform the duties of his position. He answered, “He has had hard luck, he ought to have another-chance and you must go along with me and help him.” I gave a reluctant consent and rendered the little aid he asked, but Justice BROOKE took hold of the matter with his characteristic vigor, gave several days of his time and finally succeeded in securing, the appointment. When he had done this he came into my office with a radiant face and asked me to rejoice with him over his success. I think he was even happier than was the recipient of his kindness.

I could relate many such instances. In consequence of this characteristic Justice BROOKE made friends not only among those of his own rank and standing, but of everyone with whom he came in contact. It happened that some of these friends were not respectable. Indeed some of them may fittingly be described as social outcasts. His friendship with these people shocked some fastidious persons and it led them to criticize him adversely. They seemed to forget that the Savior of Mankind was condemned by the Pharisees because He associated with publicans and sinners.

It is because these personal qualities created such friendships and led to the rendition of such services that I say they are more important because if we measure men by the proper standard we must admit that it is more important to be a true, loyal, and serviceable friend than it is to be an extraordinary judge. Whatever a man may have achieved, if he has not been a true and loyal friend and thereby acquired the true and loyal friendship of others, his life has not been a success. Occasionally we meet a man who has accumulated a great fortune but who never made a friend. He is an object of pity, not of envy. He has missed life’s greatest opportunities. He has not had life’s greatest joys. He has not acquired life’s choicest treasures. He has not done what he should to bring happiness to others, and failing in this he has failed to perform life’s real service.

But on this occasion our attention is particularly directed to the judicial characteristics of Justice BROOKE. To me what most conspicuously distinguished him from other good judges was his remarkable facility for writing opinions. He could sit down and as fast as he could write with a pen or dictate to a stenographer, compose an opinion, putting it in such a shape that it could, without material revision, stand as a judicial opinion. It was in this way that his opinions were habitually prepared and they are creditable opinions. They are clear, direct, concise and uniformly appropriate to the case under consideration. This talent of doing one’s best without laborious effort is a talent which Ruskin says, “is an important test of greatness.” One who possesses it, Ruskin says, “sees clearly and states what he sees plainly,” and he adds, “hundreds can talk for one who can think, but thousands can think for one who can see.” This talent, though it may be improved by practice, is one which I think cannot be acquired. It is a natural gift. Justice BROOKE did not acquire it, he had it from the beginning. The first opinion of his which is found in the Reports is that in the case of Mahan v. Michigan State Telephone Company, 132 Mich. 242. This opinion was prepared when Justice BROOKE was one of the circuit judges for the county of Wayne. It was prepared in the manner I have indicated and it was approved by all the judges of the circuit court. The case went to the Supreme Court of Michigan and this opinion, thus hastily prepared, was adopted by that court as its unanimous opinion, and it thus became the first opinion of Justice BROOKE found in our Reports. This talent contributed very much indeed to the value of his judicial services.

It is, however, none the less true that what did most to make Justice BROOKE the extraordinarily good judge that he was was not the talent I have just described, nor any other of the qualities which distinguished him from other good judges. What most contributed to his excellence were qualities possessed by all good judges, particularly his determination to decide every case which came before him in accordance with his sense of justice. No consideration of self interest, no consideration of popularity, could swerve him from his determination. This is and must be and always has been a characteristic of all good judges. A judge who lacks it, whatever other characteristics he may have, cannot be a good judge. Lacking it, he is not entitled to be entrusted with the awful responsibilities of judicial office. Good judges may differ in many respects but in this respect, in the determination to decide controversies as in their judgment they should be decided, undeterred by all extraneous considerations, they are all alike, and this, I repeat, is what does most to make them good judges.

As an illustration of this self-evident truth I venture to refer to two other judges of high rank known to all of us, whom it may be said accompanied Justice BROOKE as he passed over the boundary that separates this life from the life beyond. You all know that I refer to the late ex-Justice GRANT of this court and to the late Judge Hosmer of the Wayne circuit court. These three Michigan judges were closely associated and were intimate friends. Each had a distinct individuality; each differed much from the others, but they were all alike in this: Each of them was determined that every case in which he participated should be decided in accordance with his sense of justice (or to state the same thought in different words), in accordance with his judgment of the applicable principles of law, and nothing whatever could swerve him from carrying out this determination. This is what made these men honored and respected by the State, by the bar and by their associates. This made each of these judges a model for those who come after them. The career of each of these judges proves, too, that the way for a judge to acquire the popularity that endures–and no other popularity is real or is desirable–is to pursue the course he pursued.

 The Honorable RICHARD I. LAWSON, of Detroit, spoke as follows:

May It Please Your Honors: In support of the adoption of the resolutions on this occasion submitted by Judge CARPENTER, permit me to say:

That the life work and character of Justice BROOKE which impressed me most, perhaps, was his generous, wholesome, practical nature. To me, it distinguished him from every other man I ever met. He was not a theorist nor an idealist, yet he was not devoid of either of these qualities in their better sense. He had them both and he used and practically applied them with the addition of his own rare common sense, to the many great legal judgments which he pronounced in his time. An ideal or a theory which could not be made to serve a useful, practical purpose was of small consequence to him.

He believed that human laws were made to serve the purposes of human beings; he believed that the Constitution and fundamental laws of the State were made to advance the cause of the people and the State, and he always construed them with that object in mind. He could express his thoughts with uncommon felicity and clearness. It was no effort for him to deliver an opinion once he had mastered the facts in connection therewith. His power to master and marshal facts connected with any matter was marvelous. It is a delight to read his opinions today as it will be a delight for those who come after us, because of their clearness, their fairness, and their logic. They are so readily understood, it is not necessary to infer the thought they contain; he has expressed it in language pure and simple–the child and the philosopher may understand alike when they read.

He was as loyal to his friends as he was to his profession, as he was to his State, and no man ever lived, I believe, who possessed these virtues to a greater degree. He always extended a helping hand to the younger members of the bar and always rendered assistance to those who endeavored, by fair means, to improve their conditions.

When Justice BROOKE died the State lost a valuable citizen, one who had contributed much to her development and advancement, and his friends lost a magnificent companion.

 Chief Justice STEERE spoke as follows:

The memorial resolutions which have been presented and words of tribute which have been spoken so fully picture Justice BROOKE’ S personal characteristics, public services and ability it seems little can be added in that behalf, but in closing these exercises we would offer as his due a few words touching more directly his relations with his associates and this court as such.

For members of this court who have served with Justice BROOKE in the intimate relations its duties involve we can first truthfully say the dominant thought these exercises give rise to is one of sorrow at the unexpected loss of a genial, helpful, ever cheerful associate and cherished friend. He was instinctively a companionable, helpful man, always kindly thoughtful of others. As he thought so was he. No man could long be associated with him as a member of this court without forming a sincere personal attachment and admiration for him as an amiable, considerate co-worker and most efficient judicial officer—an upright judge with a well balanced judicial conscience.

But one of the present members of this court served with him during the entire period of his incumbency. It is a sobering reflection that of the eight members constituting this court when he entered upon his duties here a little over 12 years ago all but one have passed away, most of them unexpectedly and with little warning as in his case.

The many opinions of this court written by Justice BROOKE are to be found distributed through 55 volumes of its Reports,–from the 155th to 213th inclusive. They speak for themselves, and fully verify what has already been said of his power of graphic expression, alert apprehension and direct mental processes; but beyond them his participation and influence in the work of the court exists, though less clearly disclosed, in the many other decisions those volumes contain. His active interest in the cases assigned to others was as keen as in his own and seldom lagged; he was equally earnest to understand them and assist in their right disposition. His quick discernment of the controlling issue and ready reasoning to application of what he regarded as the governing rules of law were always helpful, if not always concurred in. He was good natured in debate though often earnest, possessed the saving grace of a wholesome sense of humor, had few delusions and was eminently endowed with the genius of common sense, which Justice CHRISTIANCY once aptly said “is the highest form of human genius, almost the only form which produces permanently useful results.”

He entertained a high conception of the responsibility of his judicial office, to which he more than once made reference, on one occasion expressing his conception of it in his comprehensive style of clear and direct expression as follows:
“It does demand a patient attention that cannot be fatigued into indifference or blunted by the monotony of dull detail. It demands a sense of controlling principles that is not disturbed by those nice distinctions so attractive to certain acute minds, or clouded by those mists of feeling sometimes mistaken for principles of equity. It occasionally demands courage. It always requires the ability to co-operate with others, foregoing pride of opinion while abiding by conviction, and above all it demands the will and capacity for grinding labor. Judicial excellence, in short, results from the possession of common qualities in an uncommon degree.”

He will be measured up to that standard.

The resolutions which have been presented, and other tributes of appreciation which have been offered in that connection so far as available, will be spread upon the minutes of this court and published in its Reports.