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dition, he took a slight cold, which was followed by a violent internal stricture, from which he was not relieved until after many hours of great suffering. But now his exhausted system could not rally. His strength daily declined, in spite of the best medical advise and the most careful nursing, and he died, without consciousness or pain, on the 10th of September, 1846, at the age of sixty-seven years.
The news of his death threw a gloom over the community, all the deeper from the fact that none but those who lived in his immediate neighborhood were prepared for it. Resolutions were adopted, and speeches expressive of the highest respect and admiration were made at the opening of every court over which he had presided, and also of the Supreme Court at Washington. On the 18th of September, the sixtyseventh anniversary of his birth, a beautiful and impressive eulogy was delivered by his colleague, Professor Greenleaf, before the pupils of the Law School. In the Courts of the United States, in New York, Pennsylvania, Tennessee, Louisiana and Mississippi, his death was appropriately noticed.
Judge Story was about five feet eight inches in height, with rather broad shoulders, and a compuct and active figure. He was very animated in his movements, and to the last, maintained the elastic step of youth. His complexion was fair, bis eyes were blue. His hair in youth was auburn, but in early manbood he became bald. His mouth was large and full of expression. His countenance was easily lighted with smiles, and glowed with kindliness and unaffected sympathy. His manners were simple, unassuming and cordial.
He was a man of large capacity and various faculties; and with such intellectual force, that whatever might bave been the sphere allotted to him, he could hardly have failed to have risen to eminence in it. His perceptions were wonderfully quick, and his knowledge was as enduring as it was readily acquired. His memory was "wax to receive and marble to retain." His crowning and conspicuous quality was his industry, wherein few equalled and none excelled. Many men will work hard in order to secure the prizes of life, wealth, office or fame; and when these are won, they begin to grow self-indulgent,
and are content to live on their intellectual capital, without adding to its stores. Not so Judge Story; for labor was a necessity of his nature, and he must have ceased to live before he ceased to work. The profession of the law, which he chose, was that which afforded the best scope and sphere to this persevering industry; for of eminence in the law it is not too much to say, that three parts out of four are made up of hard work.
There is, in our opinion, a moral to be drawn from the manner of his death, which should not be lost upon the judges of our day, and especially in this City. Had Judge Story performed, during the last twenty years of bis life, but two-thirds of the labor which he did, more than twenty years would probably have been added to a career already glorious, but which by a prudent expenditure of vital energy, would then have been at its zenith.
Judge Story, though fond of general literature, was mainly, almost exclusively, a lawyer, and presented an example of undeviating devotion to his profession, more common in England than in this country. Here professional eminence is apt to prove the stepping-stone to the more showy, and to many natures the more tempting, honors of politics.
That Judge Story was a great lawyer, both in the original force of his mind and in his prodigious attainments, is what no man competent to judge, and free from prejudice, will for a moment deny. Judge Prescott, a man careful of his words, and not inclined to overpraise, said of him, in a letter written in 1840: “I believe him the greatest jurist now living in either country,” meaning England or America. That this would not be too much to claim for him, even in England, may be inferred from the fact that Lord Campbell, in the course of a debate in the House of Lords, characterized him as “the first of living writers on the law.” If among his contemporaries there were some who were not inferior to him, if there were some who were even superior to him in grasp of legal principles, in logical power, in accuracy of legal perception, and in simplicity and clearness of expression, there was no one who equaled him in the range and depth of his learning.
In England, the division of legal employments limits the professional attainments of their lawyers and judges to a narrower sphere. One man devotes himself to equity law and one to common ļaw, and neither intrudes upon the province of the other. Take the two brothers, Lord Stowell and Lord Eldon, for instance; the former was confined to ecclesiastical and admiralty law, and the latter to equity law. But the jurisdiction of the courts of the United States compelled Judge Story to range over a far wider region of legal investigation than any English judge. He had to hear and determine questions in equity law, in commercial law, in admiralty law, in criminal law, in constitutional law, in the law of copyright, and patent law. In all these departments his learning was accurate, ready and profound. He was at home, also, in the technical and recondite learning of real property. He had made himself master of the uncouth lore of “Coke'upon Littleton.” With every department of equity law he was familiar—with the obsolete science of special pleading he was perfectly acquainted, and his opinions on constitutional law have in their careful analysis, luminous exposition, and vigorous grasp, but few rivals, and no superiors, unless it be the immortal judgments of Marshall. In knowledge of admiralty law, alike of its origin, history, and practical application, there is no one but Lord Stowell to rival him; and in learning, at least, the finished opinions of this great lawyer and accomplished scholar are not superior to those of Story.
To the important department of patent law. as administered and understood in America, Judge Story's contributions were more abundant and weighty than those of any other judge, or perhaps those of all the judges on the bench during his time. The system of patent law was wanting in symmetry and proportions. The courts of America at that time had contributed almost nothing to the science. It was a department of the law which he took particular pleasure in studying and administering, where his quickness of apprehension and discriminating faculty found a congenial sphere.
Upon the kindred subject of copyright, several important questions came before him during his judicial life; and his
opinions on them bave the same merits of liberal interpretation and equitable construction as mark his judgments in patent cases.
To understand Judge Story's merits as a lawyer and a jurist, be must be studied in his opinions, as contained in the reports of Gallison, Mason, Sumner and Story, exclusively devoted to his own.circuit, as well as those found in the volumes of Cranch, Wheaton and Peters, of the U. S. Supreme Court Re ports. His text books, admirable as they are-affluent in learning, luminous in exposition, and abundant in illustration
- can hardly claim the same comparative rank as his recorded opinions. No man in America has done more to determine the law; and there is no one whose conclusions have been accepted with more general assent by the profession.
Some of his conclusions, however, though they were the law in his time, must be looked upon, especially in these Western States, only as connecting links between the common law and that more complete modification of it which is necessary to adapt it to our social and political condition.
As a nisi prius judge, presiding over jury trials, Judge Story was remarkable for the quickness of his perceptions and the correctness of his decisions, and for the uniform courtesy with which he treated all who appeared before him. He never indulged in sneers or sarcasm, and did not allow himself those judicial sallies, which, though they may make the by-standers smile, rarely fail to disconcert a seusitive advocate, and when too frequent, detract from the dignity of the bench.
He was sometimes accused of indicating, in his charges to the jury, a little too distinctly on which side be thought their verdict ought to be. A similar criticism has been made of the charges of some of the most eminent jurists of this State. The fault is a very natural one. The abler the judge and the clearer his views of the law, the more danger of his falling into it. As the jury, being accustomed to dealing with facts, are apt to consider more closely the facts, so the judge, being more accustomed to consider questions of law, is apt to give to them his closest attention, and, auxious that the verdict should be in accordance with the law when applied to the facts as he views
them, he sometimes does not leave to the jury sufficient latitude in determining the facts themselves. Though he may base his charge upon hypothetical conclusions of fact, in such a way that the charge is legally unobjectionable, he couches it in such language as to foreshadow his actual opinion as to what the verdict should be.
Whether we view Judge Story in his private and social life -as a lecturer—as a writer—as a lawyer—as a jurist—as a judge upon the bench, in all these respects he was great; and while some have been his equals and superiors in one or another of these departments, yet when all are taken and viewed together, it is safe to give him pre-eminence in those respects, among the men whom our country has produced.