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APPENDIX.

NO. I.

MR. SUMNER'S TRIBUTE TO MY FATHER. The following touching and beautiful tribute to my father's memory, from the pen of his intimate and cherished friend, Charles Sumner, Esq., appeared in the Boston Daily Advertiser, September 16th, 1845.

HOX. JOSEPI STORY.

I have just returned from the last sad ceremony of the interment of this great and good man. Under that roof, where I have so often seen him in health, buoyant with life, exuberant in kindness, happy in family and friends, I gazed upon his mortal remains, sunk in eternal rest, and hung over those features, to which my regards had been turned so fondly, and from which even the icy touch of death had not effaced all the living beauty. The eye was quenched, and the glow of life ex. tinguished; but the noble brow seemed still to shelter, as under a marble dome, the spirit that had fled. And is he, indeed, dead, I asked myself; he whose face was never turned to me, except in kindness; who has filled the civilized world with his name; who has drawn to his country the homage of foreign nations; who was of activity and labor that knew no rest; who was connected by duties of such various kinds, by official ties, by sympathy, by friendship and love, with so many circles; who, according to the beautiful expression of Wilberforce, "touched life at so many points," — has he, indeed, passed away? Upon the small plate on the coffin was inscribed, “ Joseph Story, died September 10th, 1845, aged 66 years." These few words might apply to the lowly citizen, as to the illustrious Judge. Thus is the coffin-plate a register of the equality of man.

At the house of the deceased we joined in religious worship. The Rev. Dr. Walker, the present head of the University, in earnest prayer, commended the soul of the departed to God, who gave it, and invoked a consecration of their afflictive bereavement to his family and friends. From this service we followed the body, in mournful procession, to the resting-place which he had selected for himself and his family, amidst the beautiful groves of Mount Auburn. As the procession filed into the Cemetery I was touched by the sight of the numerous pupils of the Law School, with uncovered heads and countenances of sorrow, ranged on each side of the road within the gate, testifying by this silent and unexpected homage their last respects to what is mortal in their departed teacher. Around VOL. II.

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the grave, as he was laid in the embrace of the mother earth, was gathered all in our community that is most distinguished in law, in learning, in literature, in station; the Judges of our Courts, the Professors of the University, surviving classmates of the deceased, and a thick cluster of friends. He was placed among the children taken from him in early life, whose faces he is now beholding in heaven. "Of such is the kingdom of heaven," are the words he had inscribed over their names, on the simple marble which now commemorates alike the children and their father. Nor is there a child in heaven, of a more childlike innocence and purity, than he, who, full of years and worldly honors, has gone to mingle with these children. Of such, indeed, is the kingdom of heaven.

There is another sentence, inscribed by him on this family stone, which speaks to us now with a voice of consolation. Sorrow not as those without hope," are the words which brought a solace to him in his bereavements. From his bed beneath he seems to whisper them among his mourning family and friends; most especially to her, the chosen partner of his life, from whom so much of human comfort is apparently removed. He is indeed gone; but we shall see him once more forever. In this blessed confidence, we may find happiness in dwelling upon his virtues and fame on earth, till the great consoler Time shall come with healing on his wings.

From the grave of the Judge, I walked a few short steps to that of his class. mate and friend, the beloved Channing, who died less than three years ago, aged sixty-three. Thus these companions in early studies — each afterwards foremost in the high and important duties which he assumed, pursuing divergent paths, yet always drawn towards each other by the attractions of mutual friendship, — again meet and lie down together in the same sweet earth, in the shadow of kindred trecs, through which the same birds shall sing their perpetual requiem.

The afternoon was of unusual brilliancy, and the full-orbed sun gilded with mellow light the funereal stones through which I wound my way, as I sought the grave of another friend of my own, the first associate of the departed Judge in the duties of the Law School, - Professor Ashmun. After a life crowded with usefulness, he laid down the burden of ill-health which he had long borne, at the early age of thirty-threc. I remember listening, in 1833, to the flowing discourse which Mr. Justice Story pronounced in the College Chapel, over the remains of his associate; nor can I forget his deep emotion, as we stood together at the foot of the grave, while the earth fell, dust to dust, upon the coffin of his friend.

Wandering through this silent city of the dead, I called to mind those words of Beaumont on the tombs in Westminster:

Here's an acr

an acre sown indeed,
With the richest, royall'st seed
That the earth did e'er suck in,
Since the first man died of sin,
Here are sands, ignoble things,

Dropt from the ruined sides of kings. The royalty of Mount Auburn is of the soul. The kings that slumber there were anointed by a higher than earthly hand.

Returning again to the grave of the departed Judge, I found no one but the humble laborers, who were then smoothing the sod over the fresh earth. It was

late in the afternoon, and the upper branches of the stately trees that wave over the sacred spot, after glistening for a while in the golden rays of the setting sun, were left in the gloom which had already settled on the grass beneath. I hurried away, and as I reached the gate the porter's curfew was tolling, to forgetful musers like myself, the knell of parting day.

As I left the consecrated field, I thought of the pilgrims that would come from afar, through long successions of generations, to look upon the last home of the great Jurist. From all parts of our own country, from all the lands where law is taught as a science, and where justice prevails, they shall come to seek the grave of their master. Let us guard, then, this precious dust. Let us be happy, that though his works and his example belong to the world, his sacred remains are placed in our peculiar care. To us, also, who saw him face to face, in the performance of all his various duties, and who sustain a loss so irreparable in our own circle, is the melancholy pleasure of dwelling with household affection upon his transcendent excellences.

His death makes a chasm which I shrink from contemplating. He was the senior Judge of the highest Court of the country, an active Professor of Law, and a Fellow in the Corporation of Harvard University. He was in himself a whole triumvirate ; and these three distinguished posts, now vacant, will be filled, in all probability, each by a distinct successor. It is, however, as the exalted Jurist, that he is to take his place in the history of the world, high in the same firmament whence beam the mild glories of Tribonian, of Cujas, of Hale, and of Mansfield. It was his fortune, unlike many who have cultivated the law with signal success on the European continent, to be called as a Judge practically to administer and apply it in the actual business of life. It thus became to him not merely a science, whose depths and intricacies he explored in his closet, but a great and godlike instrument, to be employed in that grandest of earthly functions, the determination of justice among men. While the duties of the magistrate were thus illumined by the studies of the Jurist, the latter were tempered to a finer edge by the experience of the bench.

In attempting any fitting estimate of his character as a Jurist, he should be regarded in three different aspects; as a Judge, an Author, and a Teacher of jurisprudence, exercising in each of these characters a peculiar influence. His lot is rare who achieves fame in any single department of human action; rarer still is his who becomes foremost in many. The first impression is of astonishment that a single mind, in a single life, should be able to accomplish so much. Independent of the incalculable labors, of which there is no trace, except in the knowledge, happiness, and justice which they helped to secure, the bare amount of his written and printed works is enormous beyond all precedent in the annals of the common law. His written judgments on his own circuit, and his various commentaries, occupy twenty-seven volumes, while his judgments in the Supreme Court of the United States form an important part of no less than thirty-four volumes more. The vast professional labors of Coke and Eldon, which seem to clothe the walls of our libraries, must yield in extent to his. He is the Lope de Vega, or the Walter Scott of the common law.

We are struck next by the universality of his juridical attainments. It was said by Dryden of one of the greatest lawyers in English history, Heneage Finch,

Our law, that did a boundless ocean seem,

Were coasted all and fathomed all by him. But the boundless ocean of that age was a mare clausum compared with that on which the adventurer embarks in our day. We read, in Howell's Familiar Letters, the saying of only a few short years before the period of Finch, that the books of the common law might all be carried in a wheelbarrow. To coast such an ocean were a less task than a moiety of his labors whom we now mourn. Called to administer all the different branches of law, which are kept separate in England, he showed a mastery of all. His was Universal Empire; and wherever he set his foot, in the wide and various realms of jurisprudence, it was as a sovereign ; whether in the ancient and subtle learning of real law; in the criminal law; in the niceties of special pleading; in the more refined doctrines of contracts; in the more rational system of the commercial and maritime law; in the peculiar and interesting principles and practice of Courts of admiralty and prize; in the im. mense range of chancery; in the modern but important jurisdiction over patents; or in that higher region, the great themes of public and constitutional law. There are judgments by him in each of these branches, which will not yield in value to those of any other Judge in England or the United States, even though his studies and duties may have been directed to only one particular department.

His judgments are remarkable for their exhaustive treatment of the subjects to which they relate. The common law, as is known to his cost by every student, is to be found only in innumerable "sand-grains” of authorities. Not one of these is overlooked in his learned expositions, while all are combined with care, and the golden cord of reason is woven across the ample tissue. Besides, there is in them a clearness, which flings over the subject a perfect day; a severe logic, which, by its closeness and precision, makes us feel the truth of the saying of Leibnitz, that nothing approached so near the certainty of geometry, as the reasoning of the law; a careful attention to the discussions at the bar, that the Court may not appear to neglect any of the considerations urged; with a copious and persuasive eloquence which invests the whole. Many of his judgments will be landmarks in the law; they will be columns, like those of Hercules, to mark the progress in jurisprudence of our age. I know of no single Judge who has established so many. I think it may be said, without fear of question, that the Reports show a larger number of judicial opinions, from Mr. Justice Story, which posterity will not willingly let die, than from any other judge in the history of English and American lav.

But there is much of his character, as a Judge, which cannot be preserved, except in the faithful memories and records of those whose happiness it was to enjoy his judicial presence. I refer particularly to his mode of conducting business. Even the passing stranger bears witness to his suavity of manner on the bench, while all the practitioners in the Courts, over which he presided so long, attest the marvellous quickness with which he habitually seized the points of a case, often anticipating the slower movements of the counsel, and leaping, or, I might almost say, Aying to the conclusions sought to be reached. Napoleon's perception in military tactics was not more rapid. Nor can I forget the scrupulous care with which he assigned reasons for every ion of his opinions, showing that it was not he who thus spoke with the voice of authority, but the law, whose organ he was.

In the history of the English Bench, there are but two names with combined eminence as Judge and as Author, - Coke and Hale; - unless, indeed, the Orders in Chancery, from the Verulamian pen, should entitle Lord Bacon to this distinction; and the judgments of Lord Brougham should vindicate the same for him. Blackstone's character as a Judge is lost in the fame of the Commentaries. To Mr. Justice Story belongs this double glory. Early in life, he compiled an important professional work; but it was only at a comparatively recent period, after his mind had been disciplined by the labors of the Bench, that he prepared those elaborate Commentaries, which have made his name a familiar word in foreign countries. They, who knew him best, observed the lively interest which he took in this extension of his well-earned renown. And truly he might; for the voice of distant foreign nations seems to come as from a living posterity. His works have been reviewed with praise in the journals of England, Scotland, Ireland, France, and Germany. They have been cited as authorities in all the Courts of Westminster Hall; and one of the ablest and most learned jurists of the age, whose honorable career at the Bar has conducted him to the peerage, Lord Campbell, in the course of debate in the House of Lords, characterized their author as " The first of living writers on the law.”

To complete this hasty survey of his character as a Jurist, I should allude to his excellencies as a teacher of law, that other relation which he sustained to jurisprudence. The numerous pupils reared at his feet, and now scattered throughout the whole country, diffusing, each in his circle, the light which he obtained at Cambridge, as they hear that their beloved master has fallen, will feel that they individually have lost a friend. He had the faculty, rare as it is exquisite, of interesting the young, and winning their affections. I have often seen him surrounded by a group, - the ancient Romans would have aptly called it a corona of youths, — all intent upon his earnest conversation, and freely interrogating him on any matters of doubt. In his lectures, and other forms of instruction, he was prodigal of ex. planation and illustration ; his manner, according to the classical image of Zeno, was like the open palm, never like the clenched fist. His learning was always overflowing, as from the horn of abundance. He was earnest and unrelaxing in his efforts, patient and gentle, while he listened with inspiring attention to all that the pupil said. Like Chaucer's Clerk,

And gladly wolde he lerne, and gladly teche. Above all, he was a living example of a love for the law, — supposed by many to be unlovely and repulsive, — which seemed to grow warmer under the snows of accumulating winters; and such an example could not fail, with magnetic power, to touch the hearts of the young. Nor should I forget the lofty standard of professional morals which he inculcated, filling his discourse with the charm of good

Under such auspices, and those of his learned associate, Professor Greenleaf, large classes of students of law, larger than any in England or America, have been VOL II.

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ness.

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