NOVEMBER 15, 1898
On the afternoon of Tuesday, November 15, 1898, the Honorable A. J. SAWYER, of Ann Arbor, presented to the court the following memorial of the Honorable THOMAS M. COOLEY, for many years a justice of the court:
Birth, Education, and Early Life.
THOMAS MCINTYRE COOLEY was born at Attica, New York, January 6, 1824.
His father, Thomas Cooley, was by occupation a farmer, and a man of limited means. Thomas McIntyre was one of a family of 15 children, and early in life was thrown upon his own resources, earning by manual labor the means necessary to enable him to attend school. His education, as the world reckons it, was confined to such instruction as he could obtain at the district school until he reached the age of 14 years, and after that to four terms of select, or private, school, taught by classical scholars. At the age of 17 he began teaching; and in after life, in speaking of his efforts as a pedagogue, he used to say he received more instruction than he imparted. He was his own great instructor, and of him it may well be said, “His attainments in learning were nourished for the most part by the solitary vigils of his own genius.” Nature gave him a legal mind and the judicial temperament, and from his boyhood he hopefully looked forward to the profession as the one ambition of his life; and to the mastery of the law he bent, with untiring zeal, all the great powers of his mind.
Before he had reached the age of 19 years he became a law student at Palmyra, New York, in the office of Theron K. Strong, who afterwards became one of the judges of the supreme court of New York. While Judge Strong had no time to devote to the instruction of his young law student, yet the industry and energy displayed by him, and the skillful and masterly manner in which he managed and disposed of the weighty matters submitted to his judgment, presented to his student a clear view of the only royal highway to professional success, and roused into activity that masterly energy and ceaseless industry which enabled him to accomplish so much in his after years.
In 1843, while in his twentieth year, he removed to Michigan, and took up his abode in the then village of Adrian. He entered the law office of Tiffany & Beaman, and there finished his preliminary study of the law, at the same time holding the position and discharging the duties of deputy county clerk.
Admission to the Bar, Marriage, and Family.
He was admitted to the bar in January, 1846, at the age of 22 years, and on the 30th day of December in the same year he was married to Mary Elizabeth Horton, daughter of Mr. David Horton. She was a most estimable lady, and in every way worthy of the man she wed; but the summons came to her first, and on the 30th day of August, 1890, she laid down the burdens of life, and peacefully passed to her rest. There were born of this marriage four sons and two daughters, viz.: Francis Eugene, Edgar Arthur, Fannie Carrie, Charles Horton, Thomas Benton, and May B.
Labors at the Bar and in Business.
As a practitioner, Judge COOLEY’S efforts did not disclose the abilities of which his after life as judge, author, writer, and lecturer proved him possessed. He was restless, and seemingly unable to brook the slow stages of progress and advancement which usually attend permanent success at the bar. Soon after his marriage, Judge COOLEY moved to Tecumseh, and there formed a co-partnership with the late Judge C. A. Stacy. In 1848 he again returned to Adrian, and became the junior member of the firm of Beaman, Beecher & Cooley, and afterwards the senior member of the law firm of Cooley & Croswell. During the period of his membership in these law firms he was also discharging the duties of editor of the Adrian Watch-Tower, a weekly newspaper, and of circuit court commissioner for Lenawee county, and recorder of the city of Adrian. The ordinary mind would have found abundant employment in the multiplied and diversified duties of attending to a law practice, editing a newspaper, performing the services of circuit court commissioner, and discharging the duties of recorder of the city of Adrian; but he was not satisfied, and in 1852, in search of broader fields of usefulness, he moved from Michigan to Ohio, and established himself in the practice of the law, at the same time uniting with J.W. Scott in the real-estate business, at Toledo. While there he accepted the nomination for circuit judge, but was defeated at the polls. Later he returned to Adrian, and from that time until the close of his eventful career he devoted himself to the law.
In personal appearance Judge COOLEY was of medium height, of slight build, never weighing over 130 pounds, of an effeminate voice, brown hair, and piercing black eyes. His head was large, and of a marked intellectual type; and, while his features were pleasing and attractive, they were nevertheless strongly marked, and at once challenged the respect of the beholder. His manner, without being at all diffident, was modest, gentle, and retiring; and, while he was never a trifler, he had a keen perception of the ridiculous, and a friendly view of the humorous side of life. While possessed of no early advantages, he was everywhere recognized as a man of more than ordinary literary culture. In politics he was necessarily a partisan, since all men under our system of government, who have anything to do with public affairs, must be partisan. But his partisanship began and ended with his allegiance for the time being to the, party that represented his political views and principles, and he always held that a political party was the mere servant of the citizen, and that under no circumstances could a good citizen serve as a mere slave of a party.
In 1858 he was appointed official reporter of the Supreme Court, which position he held until he went upon the bench, in 1864. In 1859 the law department of the University was organized, at which time he removed to Ann Arbor, and was appointed Jay professor of law, which position he held until 1884, when the pressure of other duties compelled him to resign it. During the greater part of the time that he was connected with the law department, in addition to all other official labors, he was also dean of the department. In this position he was succeeded by Dr. Henry Wade Rogers, to whom your committee are much indebted for valuable assistance in the preparation of this memorial. Before his official relation with the law school terminated, he had the satisfaction and gratification of seeing it raised from an insignificant beginning to one of the largest, most successful, and best known law schools in the United States, sending forth more graduates than any similar school in the country, numbering among its graduates, not only citizens of every country but of the islands of the sea. He was a great teacher, successful not only in imparting knowledge of the law, but also in exciting in the students of his department a love of legal study, and a high sense of professional honor, and a desire to emulate, in part at least, his phenomenal industry and success. Thousands of his students, scattered all over the land, in every State, owe a great measure of their success to his teachings, and to the influence of his mind and character, his exalted sense of the citizen’s duty to the Commonwealth, and the spotless purity of his private life. While connected with the University of Michigan he taught constitutional law, the law of real property, uses and trusts, administration of estates, and domestic relations.
It is probable that no man in the United States has ever received so many and such flattering invitations from the law schools of the country as did Judge COOLEY. Upon the death of John Norton Pomeroy, he was invited to go to California as his successor in the Hastings College of Law. When the University of Texas was organized, in 1882, he was invited to accept a professorship in that institution. He was also invited to go to Baltimore, and organize in the Johns Hopkins University a department embracing history, law, and political science. He received an invitation from the Boston Law School, the law school of the University of Pennsylvania, the Cornell Law School, and the Columbian University, of Washington, D. C., all of which he declined.
In January, 1857, the state senate made selection of Judge COOLEY to compile the general statutes of the State, which labor be completed within one year. In 1864 he was appointed to fill a vacancy in the Supreme Court caused by the death of Judge MANNING, and was three times elected to succeed himself as judge of the Supreme Court of Michigan; and his associates said of him: “We were and continued to be more and more surprised and gratified by the ability he continued to exhibit as a judge the longer he continued upon the bench.” From 1864 to 1885 he was a member of the Supreme Court of Michigan, holding that office by successive elections, and from time to time during that period held the position of chief justice. In 1873 the University of Michigan conferred upon him the degree of doctor of laws. In 1877-8-9 he delivered a course of lectures before the Johns Hopkins University on torts, amendments to the Federal Constitution, and municipal government. In 1881, when the school of political science was established in the University of Michigan, he accepted the chair of constitutional and administrative law. Upon the resignation of Charles Kendall Adams of the chair of history in the University of Michigan, he was appointed to fill that vacancy, and from October, 1885, until he was appointed receiver of the Wabash Railway, in 1886, he was delivering lectures on political science and history in the University of Michigan. In 1886, at the celebration of its two hundred and fiftieth anniversary, Harvard College conferred upon him the degree of doctor of laws; and in 1896, on the occasion of the sesqui-centennial of Princeton University, he was offered the degree of doctor of laws from that institution, but he was offered the degree of doctor of laws from that institution, but he was obliged to refuse, as the condition of his health did not permit his presence at the ceremonies. In September, 1893, he was elected president of the American Bar Association, but, by reason of his health, his annual address to that association was read by Judge Hunt, of Cincinnati, Ohio, at Saratoga, in 1894.
It has been said of Judge COOLEY that, as a judge, he was not inferior to any; that his intellect always penetrated the “husks of discussion to the kernel of controversy.” His judicial opinions are distinguished by vigor and clearness of expression, as well as for their commonsense and comprehensive view of all the law and facts connected with the case.
When he became a member of the Supreme Court, the population of the State was little more than half a million. In the period of his long and continued service that population nearly quadrupled, and all the great material interests of the State, save agriculture, were practically created and developed. A new State Constitution had lately been adopted, which made radical changes in the methods of government, and the Supreme Court was frequently called upon to consider its language and to expound its principles. That work was so satisfactorily performed that, notwithstanding many opportunities have been offered for a modification of the Constitution of 1850, it still stands unchanged, except in unimportant particulars, as the organic law of the State. When Judge COOLEY left the bench, the rules of law governing commercial questions, and regulating the powers, rights, duties, and obligations of public and private corporations, were in no State of the Union more clearly and definitely settled than in Michigan. The decisions of her chief tribunal were cited by every court, National and State, always with profound respect, and nearly always with unqualified approval. His first opinion was pronounced in Laing v. McKee, 13 Mich. 124, and his last one in Selleck v. Lake Shore & Michigan Southern R. Co., 58 Mich. 195. And while all the opinions rendered by him disclose his intimate and critical knowledge of the law, and both interest and instruct the student, a careful study of the opinion in the case of Sutherland v. The Governor, 29 Mich. 320, by those to whom public trusts have been given, would have prevented many political crimes. He began with a natural judicial mind, and he continued to improve it so long as reason maintained her sway; and we join with his biographer in saying that perhaps this generation has not seen his superior upon the American bench as a writer of judicial opinions.
His name has been frequently mentioned in connection with an appointment to the bench of the Supreme Court of the United States. His fitness for that position has been everywhere recognized and acknowledged. When Justice SWAYNE was about to resign his seat, the Central Law Journal, of St. Louis, said:
“Among those frequently mentioned as worthy candidates for the place are ex-Senator MATTHEWS, of Ohio, and Mr. Chief Justice COOLEY, of the Michigan Supreme Court. No one will deny the well-earned reputation for ability and learning of Mr. MATTHEWS, and, were his competitor other than he is, his appointment would not be one to cavil at; but Mr. COOLEY’S qualifications for this position are so transcendent that we think there ought to be no hesitancy as to a choice between the two men.”
The Albany Law Journal, referring to the proposed nomination of Judge COOLEY, said:
“This is an eminently fit nomination. It may be doubted whether any other could be suggested that would find so large and unhesitating a concurrence among the lawyers of this country.”
He did not begin his law writings until he had been upon the bench a number of years. It is said that to him may properly be assigned the most important legal treatise, that has been produced in this country. Neither Kent, Greenleaf, Story, nor any subsequent writer has produced a work superior to his Constitutional Limitations. Of this work Judge Seymour D. Thompson says:
“If I were called upon to name the most important legal treatise which has been written, I suppose I would say Kent’s Commentaries. If I were put upon oath, I am afraid I would have to say Cooley’s Constitutional Limitations. I believe it has done more to educate the legal profession in this country in a knowledge of the principles of the government under which we live than all the other works used by them.”
The first original contribution to legal science emanating from his pen was his Constitutional Limitations upon Legislative Power. This work was published in 1868. It was followed in 1870 by Cooley’s Blackstone’s Commentaries, and in 1874 by his edition of Story’s Commentaries on the Constitution, and in 1879 by his work on Torts, and in 1880 by his Manual of Constitutional Law. These works have established more than a national reputation for their author, and they are cited as authority wherever the English language is spoken and the common law is administered.
Judge COOLEY has been a contributor to the leading periodicals of the country. For years he was connected with the Law Register, upon the cover of which his name appears as one of the editors. He was also associate editor of Appleton’s Encyclopedia. He wrote the law articles for the last edition of that work. He wrote for the Southern Law Review, in 1876, an article entitled “The Cases in Which a Master is Liable for Injuries to his Servants,” and for the same periodical, in 1878, he wrote an article upon the principles that should govern in the framing of tax laws, and in 1886 he wrote two articles for the American Law Review upon the codification of laws.
But his literary work has not been confined to the writing of law books and law articles. In 1885 he contributed a history of Michigan to the popular series of volumes on American Commonwealths. The great interest in this work is in the account which it gives of the constitutional development of Michigan under the French, English, Territorial, and State governments. During the period when the country was aroused over the Louisiana and Arkansas difficulties he published his article on the guaranty of order and republican government in the States. Upon invitation of the editor of the North American Review he discussed the question of presidential inability with Lyman Trumbull, Benjamin F. Butler, and Prof. Theodore W. Dwight. In 1885 the editor of the Century invited him, in conjunction with Senator Edmunds, Francis Wharton, and others, to express his views upon the questions, “What shall be Done with our ex-Presidents?” In this article Judge COOLEY takes strong ground in opposition to the suggestion that ex-presidents should be made life senators with large salaries, and his conception of the dignity of the title “American Citizen,” as therein expressed, will scarcely find a parallel elsewhere. He says:
“Allow them [ex-presidents] gracefully and with dignity, if they will, to enjoy the proud position of ‘first citizen of the republic.’ Their lives in retirement, if they be such as belong to an illustrious career, will be a continuous and priceless public benefaction. If they bore themselves worthily in office, party asperities will begin immediately to wear off, for their virtues will be exalted in public estimation, and their homes will become pilgrim shrines of patriotism. If they have been incompetent or otherwise unworthy, the shortest dismission to oblivion is best for them and best for the country.”
He also prepared an article on the methods of electing the president, in which he discussed seven methods which have been suggested as proper to be pursued in the election of a president of the United States. He also prepared an article on limits to state control of private business, which is one of the ablest of his contributions to periodical literature.
Frequent calls were made upon Judge COOLEY, from different quarters of the country, for public addresses. In many cases he responded to the call. In 1881 he read a paper before the American Bar Association, at Saratoga, on the recording laws of the United States. In 1882 he delivered an address at the Michigan state convention of surveyors and engineers on the judicial functions of surveyors. In 1885 he delivered an address before the Tennessee Bar Association on the duty of the legal profession to make laws accomplish justice. In 1886 he delivered the annual address before the State Bar Association of South Carolina on the subject of the influence of habits of thought upon our institutions. The same year he delivered the historical address at the semi-centennial of the State of Michigan. In 1887 he delivered the annual address before the Georgia Bar Association, at Atlanta, on the subject of the uncertainty of the law. The same year, before the Indiana Historical Society, he delivered an address on the acquisition of Louisiana. In January, 1889, he delivered the annual address before the New York State Bar Association, at Albany, on the subject of the comparative merits of written and prescriptive constitutions.
In January, 1882, the trunk-line railways of the United States— the Baltimore & Ohio, the Erie, and the New York Central— selected Judge COOLEY, Senator THURMAN, of Ohio, and E. B. WASHBURN, Of Illinois, as an advisory commission to investigate the subject of differential rates, and advise them in relation thereto. This commission visited the seaport towns and the important commercial centers of the United States, and held public sittings, and summoned before them the representatives of all the business interests. When the commission reached its conclusions, notwithstanding the other eminent and distinguished gentlemen who were made members of that commission, Judge COOLEY was selected to draft the report of the commission.
In December, 1886, Judge GRESHAM, Of the United States circuit court, appointed Judge COOLEY receiver of the Wabash Railway. In announcing the appointment Judge GRESHAM said:
“I have had several names suggested, but cannot appoint any of those who have been suggested. I shall name one to have charge who, so far as this court is concerned, cannot fail to be received with satisfaction by all,—Judge COOLEY, of Michigan.”
This appointment was made without consultation with Judge COOLEY, but he accepted it, and continued in the office until he was appointed chairman of the Interstate Commerce Commission, in March, 1887.
In 1887 congress passed an act entitled “An Act to Regulate Commerce,” and on February 4, 1887, this act received the approval of the president. On March 22, 1887, the president named, as members of that commission, THOMAS M. COOLEY, to serve for the long term of six years and WILLIAM R. MORRISON, of Illinois, AUGUSTUS SCHOONMAKER, of New York, A. F. WALKER, of Vermont, and WALTER L. BRAGG, of Alabama, as his associates. When this appointment was made public it gave universal satisfaction. Harper’s Weekly declared that the president had succeeded in selecting a board which, for personal character and experience, and trained ability for the work, it would be difficult to surpass, that “Judge COOLEY, of Michigan, is a gentleman whose name carries the greatest weight as that of a wise, estimable officer.”
The New York Herald editorially congratulated the president, and said:
“Judge THOMAS M. COOLEY, of Michigan, will be the head of the commission, being appointed for the long term, six years. The president was fortunate to secure for the country the services of so able a jurist and so great and acknowledged an authority on corporation law.”
The New York Independent declared that the president, had shown much wisdom in his choice of commissioners, and expressed itself as grateful to the commission for accepting the position. In the course of the article it pronounces Judge COOLEY one of the most eminent jurists of the country.
The Evening Post said:
“The manner in which the Interstate Commerce Commission has been filled has, however, apparently caused the president’s enemies greater embarrassment than anything which has gone before. All over the country his enemies in fact admit that he has behaved abominably well.”
While in discharge of his duties upon this commission, Judge COOLEY seems to have slackened in no degree his great energy and laborious industry. He was found at the rooms of the commission early in the morning, before any of the clerks had arrived, and late in the afternoon, after they had gone away.
Probably no man has manifested greater industry or closer application than has Judge COOLEY. He was an utter stranger to idleness; he seemed never to weary; and, the heavier the burdens cast upon him, the greater ability he displayed. He never seemed to need recuperation and never appeared weary. While upon the Supreme Bench he was ever found at his rooms at the court chambers long before the lawyers who were to try the cases before him were out of bed. While at Ann Arbor, engaged in his work as law professor and writer, he was regularly at his desk from 8 o’clock in the morning until 5 or 6 o’clock in the afternoon, only stopping an hour for lunch at noon, and then at night work was resumed in his private library. There is a limit to man’s endurance, and this limit was at length sorrowfully found by Judge COOLEY, and he fell a victim to his own industry. His wonderful powers at length gave way, and on the 12th day of September, 1898, at his home in Ann Arbor, the great soul of THOMAS MCINTYRE COOLEY winged its everlasting flight.
In the death of Judge COOLEY the University of Michigan has lost one of its greatest and most successful teachers, the Bar of this State its most learned and renowned member, and the Nation a pure, upright, and devoted patriot, and faithful and zealous servant.
A. J. SAWYER,
EDWIN F. CONELY,
GEO. P. WANTY,
THOMAS A. WILSON,
Mr. SAWYER said:
May it Please the Court:
Once more have I made the pilgrimage to this presence, charged by the bar of Washtenaw county with the sad duty of bringing to this court official information of the demise of still another of its distinguished members. But a few months ago, as president of our bar, I appeared before your honors, charged with the duty of presenting the memorial of Hon. ALPHEUS FELCH, then lately deceased. Since that time the Silent Messenger has again entered our professional brotherhood, and borne from us the next oldest and most distinguished member of our bar, THOMAS MCINTYRE COOLEY. I come laden also with the duty of presenting to this court the memorial prepared by the order of the State Bar Association of this State, which I have the honor to present, and respectfully move the court for an order directing the same to be made of record in this court.
Having for so many years lived neighbor to Judge COOLEY, and so long enjoyed the benign influence of his home life, and experienced his sympathy and kindness in the hours of my bereavement, and received his powerful aid and assistance in time of danger, I beg the indulgence of the court while in a few words I express my deep sorrow at his demise and my profound respect to his memory. It would be impossible to convey to this court an adequate conception of the influence for good that flowed out from his home life. The lowest and humblest of his neighbors were at home in his presence, and ever found a welcome ear and sympathetic heart and an open hand. The heroic struggles of his early life, and the scenes of privation and want of his childhood and youth, wrought in him an inexpressible tenderness that ever flowed out towards the unfortunate. Of him President Angell says:
“His private life was most simple and beautiful. He was a most affectionate and devoted husband and father, and seemed never so happy as when the large group of children and grandchildren were all gathered under his roof; and he had a wonderful gift of making them all happy also. Simplicity, sincerity, and kindness were the characteristics of his private life. He was also most generous in his treatment of those whom he could help, whether in gifts of money or of time and counsel. I used to think that he sometimes allowed himself to be imposed upon by persons who came to him for advice on all sorts of questions. All his students will bear witness to the freedom and good nature with which he gave them his time in advising them about their work. No private life could have been more sweet and pure and beautiful than his.”
This same kind and gentle treatment of every one in distress was ever present with him, even upon the bench. Many a young man who, with faltering step and trembling lip, attempted to present his maiden brief to the court, learned to love Judge COOLEY for the friendly look and encouraging word that enabled him to stumble through his first effort.
I would not if I could, and could not if I would, forget my first appearance before the Supreme Court. The court was then composed of Judge GRAVES, Chief Justice, and Judges COOLEY, CAMPBELL, and CHRISTIANCY, Associate Justices. It was in the case of Elliott v. Herz. I found myself upon my feet, brief in hand, but unable to utter a word. The simple formula, “May it Please the Court,” lodged in my throat and refused to be uttered. I seemed to feel the earth open beneath me, and was upon the point of taking my seat when I heard the voice of Judge COOLEY, full of gentle encouragement, calling my attention to a certain case I had cited in my brief, and asking if I had the volume before me. The ice was broken, and I proceeded with the argument.
Judge COOLEY’S success in life was not the result of accident, not a freak of fortune, but the natural, logical sequence of the life of industry to which he devoted himself, and all the honors so thickly bestowed upon him were dearly earned and richly merited. His public life is an open book, “known and read of all men,” and the fruits of his labors fall upon us like a benediction. His devotion to the Republic, his labors to establish more firmly the foundation upon which it must forever rest, have justly made his name illustrious. But the unerring certainty with which he administered justice, in all the affairs of life that came before him in his official capacity, has endeared him to his fellow citizens. The public respects and admires Judge COOLEY for the great service he has rendered to it, and to the full meed of praise bestowed upon him by a grateful people he is justly entitled; but his friends loved him for the purity of his private life, the nobility of his soul, and the kindness of his heart. He loved his friends, and never lost an opportunity to serve them. Neither in private nor official life was his honesty or integrity ever questioned. “The smell of corruption was never upon his garments.” While his decisions were at times severely criticized by an opposition press, yet they have stood the test of time, and appear wiser and more beneficent as their effects are more and more experienced. In all the varied and exalted places of trust in which his labors were performed, the confidence of the people was never for a moment betrayed.
In politics he was a partisan and a Republican; yet that party could only control his vote by being right, by the adoption and advocacy of such principles and measures and the developing of such policies as tended, in his judgment, to the advancement of mankind, and the stability of a republican form of government. Like the great commoner, Henry Wilson, his political bonds and party predilections were not strong enough to bind him against his judgment. He chose to follow the dictates of his own conscience and the light of his own reason, rather than the leadership of those whose political wisdom began and ended with the manipulation of caucuses and conventions. He believed nothing could be politically right that was morally wrong, no matter what political party advocated it.
Judge COOLEY was of that type of lawyer that is fast passing off the stage. His knowledge of the law was acquired in the unaided study of the authorities in a law office, and in their application in the courts, and not in a law school. He learned the principle from the books, and at the same time learned the application and practical enforcement thereof in the daily affairs of life, thereby securing more accurate and well-defined knowledge of the principle and its usefulness than is usually obtained in any other way. The knowledge thus obtained enabled him with such clearness, accuracy, and vigor to apply the law to the many and diversified controversies that came before him, and, aided by that immense good sense and kindness of heart which was so characteristic of him, he was ever able, not only to administer the law to the facts but so to temper his decisions with mercy that even the vanquished party recognized the justice of his defeat.
But THOMAS MCINTYRE COOLEY is dead. The great soul that so bravely bore him fearlessly through all the controversies and contentions of life has joined the innumerable hosts that have passed on before. These halls that have so often witnessed his efforts, and hung with such breathless anxiety upon his utterances, will never more welcome him to this august presence. The great Bar of this State will never more rise and remain standing and uncovered while he shall assume his position upon this bench. But the record he made, the principles of law and the practice that he so wisely aided in establishing and administering, the spirit of fairness and boldness with which be defended the right and punished the wrong, still live, and will continue to live and sway the affairs of men until the end of time.
As president of the State Bar Association I have been requested to offer some remarks upon the pending motion. But for my official connection with the association, it would have been well that one better equipped by longer professional association with Judge COOLEY should have been chosen for this task. But I have a keen recollection of the encouragement which, as a young practitioner, I received from Judge COOLEY’S careful attention and evident sympathy during the earlier arguments I made before this tribunal, and I had the honor to be the opponent of the distinguished judge upon the last occasion when he appeared before this court as an advocate. Those present will remember the dramatic scene at that time. The case involved questions particularly within the learning and special bent of the judge’s mind, and, although feeble in bodily health at the time, his earnestness, and the depth of his philosophy, reminded one of his treatment of like subjects in earlier days.
Two qualities of the distinguished jurist come pre-eminently before me at this time: First, his independence in thought and judgment, and, second, his conservatism. While precedents were useful to him, they were not controlling. In the assertion of a principle, and its application to a difficult case, he was guided by philosophy, which used authorities only as helps, and not as conclusions. He was bold in his advocacy of those underlying principles which, in his judgment, made for freedom. He was slow to disturb the settled trend of the law to meet the requirements of special cases. With him the law was pre-eminently a science. Its conclusions were to his mind the infallible tests of human rights; yet he reached his conclusions, not by academic methods, but by the judgments of a practical man of affairs. His opinions will remain as a clear exposition of the strength of the English common law. His conservatism was manifested by many decisions which demonstrate his distrust of temporary sentiment, and his jealousy of interference with the established order of things. He was a good listener, as those who made their first arguments before him will remember. His aim was to hear and determine. He was entitled to the honors he received, and his memory is worthy of the tributes we bestow.
A great heart has ceased to beat; a great life is ended. He has left behind him the legacy of a great example for the encouragement and instruction of those who still follow him. His life was a drama within itself. Who can look at the early days of poverty and toil, the struggle for an education, the aspirations which filled the heart of the youthful school-teacher as he looked toward the lofty seats which had been filled by a Kent, a Story, a Marshall, and the firm resolve to overcome every obstacle, and by his own unaided energy to reach the highest rung of judicial distinction, without being filled with admiration at his indomitable will and noble ambitions?
Let us look at the successive steps this intrepid youth trod until he reached the highest pinnacle of judicial honor, and laid down his task, having become one of the foremost jurists and legal authors of his age, whose fame justly extends beyond the confines of a continent, and is recognized wherever courts administer justice under the rules of law. At the age of 14 he had mastered the studies taught in the common or district school; then four terms in grammar schools completed his schooling in public and private institutions. We next see him, at the age of 16, teaching in the district school; and also in the winters of 1841 and 1842 following. This teaching was of great value to him. It tended to fix in his memory those rudiments of an English education he had studied, and gave him what was of use to him in after years,— an insight into human nature. There is no place better adapted to acquire that knowledge than the school-room, where human nature is constantly exemplified before contact with the world has taught us to conceal our natural feelings and impulses from the view of others. His taste for the law was not acquired; it was a natural predilection, and long before he had left the common schools he had determined to follow that profession. Whether his physical development had anything to do with his choice we do not know; but certain it is that he was not physically strong. He was slim and narrow-chested, with a voice approaching feminacy, indicating a want of lung power; his frame was surmounted by a large, shapely head, exhibiting great brain power; bright, intelligent eyes, a firm and expressive mouth, and kindly, genial countenance. At 19 he had entered a law office at Palmyra, New York. After a few months’ reading he determined to cast his fortunes in the then far West, and accordingly started for Chicago; but his means for travel became exhausted when he reached Adrian, and so he stopped there, and resumed his legal studies in the office of Tiffany & Beaman. He liked the place and he liked the people, and came to like one young woman in particular, and concluded to make Adrian his residence. He was appointed deputy county clerk. In January, 1846, at the age of 22, he was admitted to practice law. He was married to Elizabeth Horton on December 30, 1846. This was an important step in his career. Fortunately for him, in her he found a helpmeet worthy of his ambitions, and the years that followed, until her recent death, were years full of domestic felicity and happiness.
Mr. COOLEY went to Tecumseh and formed a partnership with C.A. Stacy, and in 1848 was back again at Adrian. He knew that hie pras merits would be appreciated if he could become known to the people, and he cultivated their acquaintance. He became editor of the Adrian Watch-Tower. He was elected recorder of the city of Adrian, a judicial office and second to mayor, and acted as such in his absence. He was secretary of the Lenawee County Agricultural Society. this was in 1850. He was then 26 years old, and he was becoming acquainted. But the opportunity he was seeking had not materialized, and we find him searching for it in Toledo, in the law an real-estate business, in 1852. A few years’ residence at Toledo satisfied him that Michigan presented better opportunities to him, and he returned to Adrian and resumed the practice of the law. He was now pretty well known in southern Michigan.
In 1857 two acts of the legislature were passed which were destined to have a great influence over his future life. By one the laws of the State were to be compiled, and by the other the independent Supreme Court was established. Here were opportunities which opened to him, and which he was not slow to seize.
“There is a tide in the affairs of men
Which, taken at the flood, leads on to fortune.”
The legislature appointed Mr. COOLEY the compiler, and his work resulted in the Compiled Laws of 1857, which brought his name prominently to the attention of the profession in the State. The Supreme Court also appointed him reporter of the opinions of the court. Both of these duties he performed to the entire satisfaction of the judges and of the profession. Reporting was especially congenial to his taste, and the syllabi written by him are remarkable for their terseness and accuracy. His legal ability now began to be generally recognized, and his practice greatly increased, especially in the Supreme Court; and it is a flattering evidence of his popularity that, from the time he was appointed reporter to the time he was elected to the Supreme Bench, covering a period of seven years, he had argued in that court over 40 cases, which number, it is estimated, equaled, if it did not exceed, that of any other practitioner at that time.
In 1858 the tide had set in his favor. From that time the current of events swept him on irresistably. He had toiled ever onward and upward, but the upward incline was slow and toilsome. He had eaten the bitter bread of disappointment. He had, at times, stepped aside from the straight road of a lawyer’s practice, and attempted to better his condition by other pursuits. He had tried farming; he had tried real estate; he even ran for an office in Toledo, but was defeated. But the weary waiting for success was over. He had become known, and his worth was appreciated. In the same year (1858) the law department in the University of Michigan had been organized and its functions put in operation. The regents selected three law professors to deliver lectures to that department. With wise foresight for the future of the University they selected three of the most eminent lawyers in Michigan, namely, JAMES V. CAMPBELL, C.I. WALKER, and last, though not least, THOMAS M. COOLEY. He was a favorite and a popular lecturer. He held his position until he resigned, in 1884. The first lectures were delivered in 1859. As the topics for each lecturer were at first arranged, constitutional law was not in the series. It was not added until the next year. These lectures on constitutional law were the germs that ripened into his great reputation as a law writer.
To show what circumstances, small and untoward in themselves, often will turn the trend of our fortunes and make or unmake us, I will relate the circumstances, as I heard them from Judge COOLEY, which originated, developed, and brought out “Cooley’s Constitutional Limitations.” He said that, in consultation, the faculty determined that this subject should be added to the course; that, in his own mind, he had immediately felt that Judge CAMPBELL, owing to his great knowledge of the law, his experience in the practice of it, and his great ability upon the bench, was the best qualified to lecture upon that subject, and he so suggested; and judge WALKER was of the same opinion. But Judge CAMPBELL absolutely declined to take the subject, stating that he had his own ideas of constitutional law, and was aware that they differed from those of many eminent jurists, and that he absolutely declined to lecture upon that subject. Judge COOLEY then suggested that Prof. WALKER take the subject, when he also absolutely declined, and nothing was left but for him to take it up and lecture upon it. These lectures and his study of the subject culminated in “Cooley’s Constitutional Limitations,” which first appeared in 1868, and established the reputation of Judge COOLEY as one of the greatest living authors upon one of the greatest living subjects of the day. This opportunity was not seized but was thrust upon him, and the performance of the task attests at once his genius and ability as a jurist in this almost untrodden field of thought.
In August, 1864, Mr. Justice MANNING died, and in November following Mr. COOLEY was elected to fill the vacancy caused thereby. His judicial term commenced until he resigned, in 1885. At the time of his election he had not acquired any reputation as a law writer, and was chosen as if by a sort of natural selection to fill the block in our judicial temple torn from its place by the death of Justice MANNING. His decisions upon the bench form charming illustrations of his judicial temperament; of his deep insight into the underlying principles of justice, which is the foundation of all civil rights. The very first opinion he wrote, Laing v. McKee, 13 Mich. 124, was a case where his sense of justice overcame the technical rules of law, and demonstrated that, where he presided, it took “more than 12 men to steal a man’s farm” on a tax title acquired by bad faith and fraud. the opinions which he delivered are contained in Michigan Reports from and including volumes 13 to 58. The yare lasting monuments of his legal attainments, his love of justice, and broad and correct views of the law in its application to the affairs of men.
After his resignation from the bench, in 1885, he was appointed reciever of the Wabash system of railways, and later, in 1887, a commissioner under the interstate railroad act. Although much of his time was taken up by his jusidical duties while on the bench, which duties to most men would tax all their energies and consume all their time, yet so active was his brain, and so great was his mental resource, that he found time to edit a new edition of Blackston’s Commentaries, of Story on the Constitution, a text-book on Taxation, and a text-book on Torts, and other legal works, besides a history of Michigan, while he delivered public addresses and wrote upon special topics of the law, which were published, and, if collected, would more than fill a volume. It seemed as if his voice and pen were never idle, and the word “rest” was a stranger to his vocabulary. His active mind, under a nervous temperament, could not rest. His apparently weak and attenuated body seemed insufficient to bear the burthen placed upon it, or furnish nutriment to the brain constantly in action.
I have followed the main features of the life of Judge COOLEY somewhat minutely, from boyhood to the pinnacle of his fame, for the lesson that it teaches; and it is a great lesson. It shows that wealth is not a necessary prerequisite to the attainment of honor and fame. It teaches that energy and perseverance wil overcome every obstacle to the acquisition of the highest place in our profession, when backed by ability and nobility of character. No others deserve success. The lesson of his life is a legacy to the people, not of pecuniary value, but for what he has accomplished and the example he has set for the young to follow.
“Merits like his,
the fortune of the mind,
Beggars all wealth.”
Of his associates upon the bench when he resigned, I alone survive. Endowed with a musical voice and charming manner, personal contact and conversation with him was a pleasure. His affability removed all restraint, and made one feel at east. With his associates he was congenial, and was ever ready in consultation to assist with his advice in the solution of the many intricate questions which were presented.
“He was a man, take him for all in all,
I shall not look upon his like again.”
“His life was gentle, and the elements
so mix’d in him that Nature might stand up
And say to all the world, ‘This was a man!’”
I heartily concur in the sentiments expressed in the memorial, and would write in letters of gold above his portrait, looking down upon us from the wall of this court-room, these words: “Unrivaled as they merit be thy fame.”
Chief Justice GERANT resonded as follows:
Gentlemen of the Bar:
Your memorial and addresses have so fully and ably set forth the work, character, and career of the late Justice COOLEY that little else need be said. This is not the occasion to write his biography or to deliver an extended eulogy. Your and our purpose is to record upon the journal of this court, and to preserve in the court Reports, a brief statement of his career, and the estimate which his cotemporatries of the bar and the bench place upon the works, services, and character of so distinguished a jurist, author, and citizen of the State, to extend our sympathy to his relatives, and to show our respect for an upright life.
It would not be accurate to say that Justice COOLEY possessed genius, as that word is commonly understood and defined. Lowell wrote: “Talent is that which is in a man’s power; genius is that in whose power a man is.” Nature, however, gave him more than ordinary talent, and an unusually clear and analytical mind. To this were added an excellent physical constitution, capable of enduring great labor, and a courage undaunted by any difficulty or mountain of labor. He acquired no habits to interfere with the full exercise of his great talent and the complete use of his indomitable evergy. thus equipped he fearlesslyentered upon his labors, and reached the highest attainable results.
It is not my purpose to speak of his judicial decisions or at length of his constitutional and legal treatises. Undoubtedly his greatest work was that on Constitutional Limitations. One writer calls it “the chiefest law book of his generation.” The field of labor was new. He had no precedents to guide him. The work was accomplished when he was 44 years of age. If we may judge by his own statement, he did not appreciate the importance and value of the book. the first edition was soon exhausted, and in 1871, in his preface to the second edition, he wrote that “the unexpected favor with which the work has been received has made a new edition necessary.”
He had but one habit which cannot be commended, and that was the habit of never resting. He had a marvelous capacity and love for work. his work was his recreation. He never took a vacation. He recognized his mistake when it was too late. Three years ago last September I called on him at his home in Ann Arbor. He was reclining near a window in his study, too weak to arise. I had just returned from a few weeks’ recreation in the country. I told him that I had learned how to rest, and what I had done. He sorrowfully looked out of the window for a moment, and then said, “I am glad of it; I ought to have done it long ago, but it is too late now.” He spoke as one who knew that his work was done, but who awaited with the utmost calmeness the arrival of the grim messenger.
He worked incessantly. More than 20 years ago he told me that many was the night in which he slept only four hours. He had a light arraanged at the head of his bed, so that when he was not asleep he could read and work. Such was the daily life of this great man. Measured by calendar years, his life was short; measured by his accomplishments, few men ever lived so long. At the age of 68 his capacity to labor was practically ended, and his life work was over. Most men would have broken down under such work at a much earlier age. While he had a physical constitution equal to that of GLADSTONE, the latter was an active worker for 10 years longer than the former. His untiring devotion to labor impaired his health of both body and mind. While Justice COOLEY was the loser by such a course of life, the world was the gainer. Possibly it is well that it was so. Providence may control and direct the conduct of men to accomplish His own beneficent purposes.
It is of his personal character that I care most to speak. He left to posterity the priceless boon of an innocent, honest, pure life. Like the great AGASSIZ, he had not time to get rich, and died in moderate cirumstances. He was as innocent as a child. His mind was free from even an impure thought. Vulgar and profane expressions never issued from his lips. His private and domestic life was without a stain. The present and future generations of lawyers will do well to heed the lesson of his life, and to learn from it the value of personal character as an essential to the highest success in our profession. I knew him personally from 1860 to his death, and for 10 years lived in the same city with him. In 1865-6 I was his pupil in the law department of our University. I can say of him, as he said four years before his death of another eminent lawyer, judge, and citizen, ALPHEUS FELCH “I am proud to have been one who sat at his feet, and was taught, not simply by what fell from his lips, but by the great lesson of his life.”
I do not think it too much to say of him what JOSEPH H. CHOATE recently said at the unveiling of the statue of his uncle, RUFUS CHOATE, the great lawyer, at the courthouse in Boston: “Pure, honest, delivered absolutely from all the temptations of sordid and mercenary things, aspiring daily to what was higher and better, loathing all that was vulgar and of low repute, simple as a child, tender and sympathetic as a woman: So let the statue stand as notice to all who seek to enter here that the first requisite of all true renown in our noble profession-renown not for a day or a life only, but for generations-is character.”
The memorial will be received, entered at large upon the journal of this court, and published in the Reports.