Part 21

The science of Comparative Philology, which our Scholar has illustrated, may rank with shining pursuits. It challenges a place by the side of that science which received such development from the genius of Cuvier. The study of Comparative Anatomy has thrown unexpected light on the physical history of the animate creation; but it cannot be less interesting or important to explore the unwritten history of the human race in languages that have been spoken, to trace their pedigree, to detect their affinities,--seeking the prevailing law by which they are governed. As we comprehend these things, confusion and discord retreat, the Fraternity of Man stands confessed, and the philologist becomes a minister at the altar of universal philanthropy. In the study of the Past, he learns to anticipate the Future; and in sublime vision he sees, with Leibnitz, that Unity of the Human Race which, in the succession of ages, will find its expression in an instrument more marvellous than the infinite Calculus,--a universal language, with an alphabet of human thoughts.[163]

[163] Fontenelle, Éloge de Leibnitz: OEuvres, Tom. V. p. 493. Leibnitz, Opera, ed. Dutens, Vol. V. p. 7.

As the sun draws moisture from rill, stream, lake, and ocean, to be returned in fertilizing shower upon the earth, so did our Scholar derive knowledge from all sources, to be diffused in beneficent influence upon the world. He sought it not in study only, but in converse with men, and in experience of life. His curious essay on the Pronunciation of the Ancient Greek Language was suggested by listening to Greek sailors, whom the temptations of commerce had conducted to our shores from their historic sea.

Such a character--devoted to works of wide and enduring interest, not restricted to international lines--awakened respect and honor wherever learning was cultivated. His name was associated with illustrious fraternities of science in foreign nations, while scholars who could not know him face to face, by an amiable commerce of letters sought the aid and sympathy of his learning. His death has broken these living links of fellowship; but his name, that cannot die, will continue to bind all who love knowledge and virtue to the land which was blessed by his presence.

* * * * *

From the Scholar I pass to THE JURIST. JOSEPH STORY died in the month of September, 1845, aged sixty-six. His countenance, familiar in this presence, was always so beaming with goodness and kindness that its withdrawal seems to lessen sensibly the brightness of the scene. We are assembled near the seat of his favorite pursuits, among the neighbors intimate with his private virtues, close by the home hallowed by his domestic altar. These paths he often trod; and all that our eyes here look upon seems to reflect his genial smile. His twofold official relations with the University, his high judicial station, his higher character as Jurist, invest his name with a peculiar interest, while the unconscious kindness which he showed to all, especially the young, touches the heart, making us rise up and call him blessed. How fondly would the youth nurtured in jurisprudence at his feet--were such an offering, Alcestis-like, within the allotments of Providence--have prolonged their beloved master's days at the expense of their own!

The University, by the voice of his learned associate, has already rendered tribute to his name. The tribunals of justice throughout the country have given utterance to their solemn grief, and the funeral torch has passed across the sea into foreign lands.

He has been heard to confess that literature was his earliest passion, which yielded only to a sterner summons beckoning to professional life; and they who knew him best cannot forget that he continued to the last fond of poetry and polite letters, and would often turn from Themis to the Muses. Nor can it be doubted that this feature, which marks the resemblance to Selden, Somers, Mansfield, and Blackstone, in England, and to L'Hôpital and D'Aguesseau, in France, has added to the brilliancy and perfection of his character as a jurist. In the history of jurisprudence it would not be easy to mention a single person winning its highest palm who was not a scholar also.

The first hardships incident to study of the law, which perplexed the youthful spirit of the learned Spelman, beset our Jurist with disheartening force. Let the young remember his trial and his triumph, and be of good cheer. According to the custom of his day, while yet a student in the town of Marblehead, he undertook to read Coke on Littleton, in the large folio edition, thatched over with those manifold annotations which cause the best-trained lawyer to "gasp and stare." Striving to force his way through the black-letter page, he was filled with despair. It was but a moment. The tears poured from his eyes upon the open book. Those tears were his precious baptism into the learning of the law. From that time forth he persevered, with ardor and confidence, from triumph to triumph.

He was elevated to the bench of the Supreme Court of the United States, by the side of Marshall, at the early age of thirty-two. At the same early age Buller--reputed the ablest judge of Westminster Hall, in the list of those who never arrived at the honors of Chief Justice--was induced to renounce an income larger than the salary of a judge, to take a seat by the side of Mansfield. The parallel continues. During the remainder of Mansfield's career on the bench, Buller was the friend and associate upon whom he chiefly leaned; and history records the darling desire of the venerable Chief Justice that his faithful assistant should succeed to his seat and chain of office; but these wishes, the hopes of the profession, and his own continued labors were disregarded by a minister who seldom rewarded any but political services,--I mean Mr. Pitt. Our brother, like Buller, was the friend and associate of a venerable chief justice, by whose side he sat for many years; nor do I state any fact which I should not for the sake of history, when I add, that it was the long-cherished desire of Marshall that Story should be his successor. It was ordered otherwise; and he continued a judge of the Supreme Court for the space of thirty-four years,--a judicial life of almost unexampled length in the history of the Common Law, and of precisely the same duration with the illustrious magistracy of D'Aguesseau in France.

As judge, he was called to administer a most extensive jurisdiction, embracing matters which in England are so variously distributed that they never come before any one court; and in each department he has shown himself second to none other, unless we unite with him in deferring to Marshall as the greatest expounder of a branch peculiar to ourselves, Constitutional Law. Nor will it be easy to mention any other judge who has left behind so large a number of judgments which belong to the first class in the literature of the law. Some excel in a special branch, to which their learning and labor are directed. He excelled in all. At home in the feudal niceties of Real Law, with its dependencies of descents, remainders, and executory devises,--also in the ancient hair-splitting technicalities of Special Pleading,--both creatures of an illiterate age, gloomy with black-letter and verbal subtilties,--he was most skilful in using and expounding the rules of Evidence, the product of a more refined period of juridical history,--was master of the common law of Contracts, and of Commercial Law in its wide expanse, embracing so large a part of those topics which concern the business of our age,--was familiar with Criminal Law, which he administered with the learning of a judge and the tenderness of a parent,--had compassed the whole circle of Chancery in its jurisdiction and its pleadings, touching all the interests of life, and subtilely adapting the Common Law to our own age; and he ascended with ease to those less trodden heights where are extended the rich demesnes of Admiralty, the Law of Prize, and that comprehensive theme, embracing all that history, philosophy, learning, literature, human experience, and Christianity have testified,--the Law of Nations.

It was not as judge only that he served. He sought other means of illustrating the science of the law which he loved so well, and to the cares of judicial life superadded the labors of author and teacher. To this he was moved by passion for the law, by desire to aid its elucidation, and by the irrepressible instinct of his nature, which found in incessant activity the truest repose. His was that constitution of mind where occupation is the normal state. He was possessed by a genius for labor. Others may moil in law as constantly, but without his loving, successful study. What he undertook he always did with heart, soul, and mind,--not with reluctant, vain compliance, but with his entire nature bent to the task. As in social life, so was he in study: his heart embraced labor, as his hand grasped the hand of friend.

As teacher, he should be gratefully remembered here. He was Dane Professor of Law in the University. By the attraction of his name students were drawn from remote parts of the Union, and the Law School, which had been a sickly branch, became the golden mistletoe of our ancient oak.[164] Besides learning unsurpassed in his profession, he brought other qualities not less important in a teacher,--goodness, benevolence, and a willingness to teach. Only a good man can be a teacher, only a benevolent man, only a man willing to teach. He was filled with a desire to teach. He sought to mingle his mind with that of his pupil. To pour into the souls of the young, as into celestial urns, the fruitful waters of knowledge, was to him a blessed office. The kindly enthusiasm of his nature found a response. Law, sometimes supposed to be harsh and crabbed, became inviting under his instructions. Its great principles, drawn from experience and reflection, from the rules of right and wrong, from the unsounded depths of Christian truth, illustrated by the learning of sages and the judgments of courts, he unfolded so as to inspire a love for their study,--well knowing that the knowledge we impart is trivial, compared with that awakening of the soul under the influence of which the pupil himself becomes teacher. All of knowledge we can communicate is finite; a few pages, a few chapters, a few volumes, will embrace it; but such an influence is of incalculable power. It is the breath of a new life; it is another soul. Story taught as priest of the law seeking to consecrate other priests. In him the spirit spake, not with the voice of earthly calling, but with the gentleness and self-forgetful earnestness of one pleading in behalf of justice, knowledge, happiness. His well-loved pupils hung upon his lips, and, as they left his presence, confessed new reverence for virtue, and warmer love of knowledge for its own sake.

[164]

"Talis erat species auri frondentis opaca Ilice."

_Æneis_, VI. 208.

The spirit which glowed in his teachings filled his life. He was, in the truest sense, Jurist,--student and expounder of jurisprudence as a science,--not merely lawyer or judge, pursuing it as an art. This distinction, though readily perceived, is not always regarded.

Members of the profession, whether on the bench or at the bar, seldom send their regard beyond the case directly before them. The lawyer is generally content with the applause of the court-house, the approbation of clients, "fat contentions, and flowing fees." Infrequently does he render voluntary service felt beyond the limited circle in which he moves, or helping forward the landmarks of justice. The judge, in the discharge of his duty, applies the law to the case before him. He may do this discreetly, honorably, justly, benignly, in such wise that the community who looked to him for justice shall pronounce his name with gratitude,--

"That his bones, When he has run his course and sleeps in blessings, May have a tomb of orphans' tears wept on 'em."

But the function of lawyer or judge, both _practising_ law, is unlike that of the jurist, who, whether judge or lawyer, examines every principle in the light of science, and, while doing justice, seeks to widen and confirm the means of justice hereafter. All ages have abounded in lawyers and judges; there is no church-yard that does not contain their forgotten dust. But the jurist is rare. The judge passes the sentence of the law upon the prisoner at the bar face to face; but the jurist, invisible to mortal sight, yet speaks, as was said of the Roman Law, swaying by the reason, when he has ceased to govern by the living voice. Such a character does not live for the present only, whether in time or place. Ascending above its temptations, yielding neither to the love of gain nor to the seduction of ephemeral praise, he perseveres in those serene labors which help to build the mighty dome of justice, beneath which all men are to seek shelter and peace.

It is not uncommon to hear the complaint of lawyers and judges, as they liken themselves, in short-lived fame, to the well-graced actor, of whom only uncertain traces remain when his voice has ceased to charm. But they labor for the present only. How can they hope to be remembered beyond the present? They are instruments of a temporary and perishable purpose. How can they hope for more than they render? They do nothing for all. How can they think to be remembered beyond the operation of their labors? So far forth, in time or place, as any beneficent influence is felt, so far will its author be gratefully commemorated. Happy may he be, if he has done aught to connect his name with the enduring principles of justice!

In the world's history, lawgivers are among the greatest and most godlike characters. They are reformers of nations. They are builders of human society. They are fit companions of the master poets who fill it with their melody. Man will never forget Homer, Virgil, Dante, Shakespeare, Milton, Goethe,--nor those other names of creative force, Minos, Solon, Lycurgus, Numa, Justinian, St. Louis, Napoleon the legislator. Each is too closely linked with human progress not to be always remembered.

In their train follow the company of jurists, whose labors have the value without the form of legislation, and whose recorded opinions, uttered from the chair of a professor, the bench of a judge, or, it may be, from the seclusion of private life, continue to rule the nations. Here are Papinian, Tribonian, Paulus, Gaius, ancient, time-honored masters of the Roman Law,--Cujas, its most illustrious expounder in modern times, of whom D'Aguesseau said, "Cujas has spoken the language of the law better than any modern, and perhaps as well as any ancient," and whose renown during life, in the golden age of jurisprudence, was such that in the public schools of Germany, when his name was mentioned, all took off their hats,--Dumoulin, kinsman of our English Queen Elizabeth, and most illustrious expounder of municipal law, one of whose books was said to have accomplished what thirty thousand soldiers of his monarch failed to do,--Hugo Grotius, filled with all knowledge and loving all truth, author of that marvellous work, at times divine, at other times, alas! too much of this earth, the "Laws of War and Peace,"--John Selden, who against Grotius vindicated for his country the dominion of the sea, supped with Ben Jonson at the Mermaid, and became, according to contemporary judgment, the great dictator of learning to the English nation,--D'Aguesseau, who brought scholarship to jurisprudence throughout a long life elevated by justice and refined by all that character and study could bestow, awakening admiration even at the outset, so that a retiring magistrate declared that he should be glad to end as the young man began,--Pothier, whose professor's chair was kissed in reverence by pilgrims from afar, while from his recluse life he sent forth those treatises which enter so largely into the invaluable codes of France,--Coke, the indefatigable, pedantic, but truly learned author and judge, Mansfield, the Chrysostom of the bench, and Blackstone, the elegant commentator, who are among the few exemplars within the boast of the English Common Law,--and, descending to our own day, Pardessus, of France, to whom commercial and maritime law is under a larger debt, perhaps, than to any single mind,--Thibaut, of Germany, earnest and successful advocate of a just scheme for the reduction of the unwritten law to the certainty of a written text,--Savigny, also of Germany, renowned illustrator of the Roman Law, who is yet spared to his favorite science,--and in our own country one now happily among us to-day by his son,[165] James Kent, the unquestioned living head of American jurisprudence. These are among jurists. Let them not be confounded with the lawyer, bustling with forensic success, although, like Dunning, arbiter of Westminster Hall, or, like Pinkney, acknowledged chief of the American bar. The jurist is higher than the lawyer,--as Watt, who invented the steam-engine, is higher than the journeyman who feeds its fires and pours oil upon its irritated machinery,--as Washington is more exalted than the Swiss, who, indifferent to the cause, barters for money the vigor of his arm and the sharpness of his spear.

[165] Hon. William Kent, recently appointed Royall Professor of Law in Harvard University.

The lawyer is the honored artisan of the law. Tokens of worldly success surround him; but his labors are on the things of to-day. His name is written on the sandy margin of the sounding sea, soon to be washed away by the embossed foam of the tyrannous wave. Not so is the name of the jurist. This is inscribed on the immortal tablets of the law. The ceaseless flow of ages does not wear off their indestructible front; the hour-glass of Time refuses to measure the period of their duration.

Into the company of Jurists Story has now passed, taking place, not only in the immediate history of his country, but in the grander history of civilization. It was a saying of his, often uttered in the confidence of friendship, that a man may be measured by the horizon of his mind, whether it embraces the village, town, county, or state in which he lives, or the whole broad country,--ay, the world itself. In this spirit he lived and wrought, elevating himself above the present, and always finding in jurisprudence an absorbing interest. Only a few days before the illness ending in death, it was suggested to him, that, as he was about to retire from the bench, there were many who would be glad to see him President. He replied at once, spontaneously, and without hesitation, "that the office of President of the United States would not tempt him from his professor's chair and from the law." So spoke the Jurist. As lawyer, judge, professor, he was always Jurist. While administering justice between parties, he sought to extract from their cause the elements of future justice, and to advance the science of the law. Thus his judgments have a value stamped upon them which is not restricted to the occasions when they were pronounced. Like the gold coin of the Republic, they bear the image and superscription of sovereignty, which is recognized wherever they go, even in foreign lands.

Many years ago his judgments in matters of Admiralty and Prize arrested the attention of that famous judge and jurist, Lord Stowell; and Sir James Mackintosh, a name emblazoned by literature and jurisprudence, said of them, that they were "justly admired by all cultivators of the Law of Nations."[166] He has often been cited as authority in Westminster Hall,--an English tribute to a foreign jurist almost unprecedented, as all familiar with English law will know; and the Chief Justice of England made the remarkable declaration, with regard to a point on which Story differed from the Queen's Bench, that his opinion would "at least neutralize the effect of the English decision, and induce any of their courts to consider the question as an open one."[167] In the House of Lords, Lord Campbell characterized him as "one of the greatest ornaments of the United States, who had a greater reputation as a legal writer than any author England could boast since the days of Blackstone";[168] and, in a letter to our departed brother, the same distinguished magistrate said: "I survey with increased astonishment your extensive, minute, exact, and familiar knowledge of English legal writers in every department of the law. A similar testimony to your juridical learning, I make no doubt, would be offered by the lawyers of France and Germany, as well as of America, and we should all concur in placing you at the head of the jurists of the present age."[169] His authority was acknowledged in France and Germany, the classic lands of jurisprudence; nor is it too much to say, that at the moment of his death he enjoyed a renown such as had never before been achieved, during life, by any jurist of the Common Law.

[166] Letter of Sir James Mackintosh to Hon. Edward Everett, dated June 3, 1824: Life and Letters of Story, Vol. I. p. 435.

[167] Letter of Lord Denman to Charles Sumner, Esq., dated September 29, 1840: Life and Letters of Story, Vol. II. p. 379. The case to which Lord Denman referred was that of _Peters_ v. _The Warren Insurance Company_, 3 Sumner's Rep. 389, where Mr. Justice Story dissented from the case of _De Vaux_ v. _Salvador_, 4 Adolph. & Ellis, 420.

[168] Hansard, Parl. Deb., LXVIII. 667.

[169] Life and Letters of Story, Vol. II. p. 429.

In this recital I state simply facts, without intending to assert presumptuously for our brother any precedence in the scale of eminence. The extent of his fame is a fact. It will not be forgotten, as a proper contrast to his fame, which was not confined to his own country or to England, that the cultivators of the Common Law have hitherto enjoyed little more than an insular reputation, and that even its great master received on the Continent no higher designation than _quidam Cocus_, "one Coke."

In the Common Law was the spirit of liberty; in that of the Continent the spirit of science. The Common Law has given to the world trial by jury, _habeas corpus_, parliamentary representation, the rules and orders of debate, and that benign principle which pronounces that its air is too pure for a slave to breathe,--perhaps the five most important political establishments of modern times. From the Continent proceeded the important impulse to the systematic study, arrangement, and development of the law,--also the example of Law Schools and of Codes.

Story was bred in the Common Law; but while admiring its vital principles of freedom, he felt how much it would gain from science, and from other systems of jurisprudence. In his later labors he never forgot this object; and under his hands we behold the development of a study until him little known or regarded,--the science of _Comparative Jurisprudence_, kindred to those other departments of knowledge which exhibit the relations of the human family, and showing that amidst diversity there is unity.

I need not add that he emulated the law schools of the Continent,--as "ever witness for him" this seat of learning.