Iowa Reports/Volume LXXXI/Austin Adams

The Honorable, a member of the Dubuque county bar, and one of the justices of the supreme court from January, 1876, to December, 1888, died at his home in the city of Dubuque on October 17, 1890. At the January, 1891, term of the supreme court, Mr. Louis G. Hurd, of Dubuque, addressed the court as follows:

With Your Honors' permission I rise to call to the formal notice of this court an event of which every occupant of this bench has personal knowledge. On October 17, 1890, the Honorable, a resident of the city of Dubuque, a member of the Dubuque county bar and an ex-member of this court, departed this life. Although his death was preceded by a tedious illness, which, in a measure, prepared us for the result which followed, it is nevertheless true that the announcement of his demise came to his friends with a shock none the less keen because it was not unexpected. No previous preparation could cause the knowledge of the death of to fall lightly upon those who knew him.

Ordinarily, in the death of a man, the only losers are the members of his family. Not so in this case. The legal profession and the state at large are sufferers by the death of Judge. Lawyers of his rank are too rare, the need for men of his caliber is too great, to permit his death to take place without consciousness of great loss.

A meeting of the bar of Dubuque county was at once held, and thereat, among other proceedings, were adopted the following resolutions, which, on behalf of the bar, I present to this court for its official action:

Resolved 1. That in the death of the Honorable , a member of this bar for over thirty-six years, and a judge of the supreme court of this state for twelve years, the bar and state have lost a fellow member and citizen, distinguished alike for uprightness, purity and unselfishness of character, for simplicity and courtesy of manner, for great industry and learning both within and without his profession, and for the highest attainments and usefulness as lawyer, judge and man.

Resolved 2. That we tender to the family of our deceased brother our sincere sympathy, and that a copy of these resolutions be sent to them.

Resolved 3. That a copy of these resolutions be presented to the state and federal courts for such action thereon as is usual and proper.

In thus obeying the direction of the Dubuque county bar, I may be permitted to say a word concerning the man. And as every view is governed by the point of observation which is occupied, perhaps I might premise by stating my opportunities for knowing Judge. Twenty years before his last illness, I entered bis office as a student. From that time until his death, my residence was within three squares of his, and, until he exchanged the bar for the bench, my office was either just across a hall, or just across the street from his. I might think that the warmth of my personal regard for him, which arose upon our first acquaintance, had, in some degree, warped my opinion of him, were it not for the fact that association with him in later life but served to confirm my early estimate of his character, and for the further fact that the judgment of others, whose opportunities for knowing him well were far better than mine, coincides with mine.

Judge was born May 24, 1836, in Andover, Vermont. His father, a soldier of the war of 1812, was a prosperous farmer for that country, and a prominent man among his fellow-citizens, having served in legislature, on school boards, etc. Very early in life, indeed, before he ever saw a court or a lawyer. Judge says that the profession of law had a perfect fascination for him, and to this natural inclination the legal profession is indebted for the benefit it has derived from his legal and judicial work. When he was thirteen years old, his teacher urged upon his father that the son should receive a better education than he could procure at the district schoolhouse which, with the small Baptist church, stood in the edge of a grove upon the father's farm. This counsel resulted in his being sent to an academy at Townsend, Vermont, and to Black River Academy at Ludlow, Vermont, where he prepared for college. At nineteen, he entered the sophomore class of Dartmouth, from which he graduated in the class of 1848. I have no doubt that at college he was an indefatigable dig. On one occasion, years afterwards, in referring to a college mate, he said to me, "Yes, we were in college at the same time, though I did not know him intimately then. The students were of two classes—boys and blues; he was a boy, I was a blue." After graduating, he attended Harvard law school for a time, and still later pursued his legal studies while principal of West Randolph Academy. Among the persons whom he there prepared for college was the late Honorable F. M., who, ten or fifteen years later, after both had removed to Dubuque, became his partner. In January, 1854, he was admitted to the bar at Woodstock, Vermont. From data furnished by his family, I find that he at once formed a law partnership with ex-Governor Coolidge. The firm lasted, however, but a few months; for, shortly after, the junior member became imbued with a desire to seek a home in the then promising West, and came to Dubuque. I think it must have been this partnership to which I heard him refer twenty years later. He was talking of the opportunities which his old Vermont home offered to young men, and the motive which had prompted him to come West. His then partner, he said, urged him to remain in Vermont, and, as an inducement, prophesied the building up of a joint practice, if he would stay, which would yield each member of the firm six hundred dollars a year.

He reached Dubuque early in the high tide of prosperity which preceded the panic of 1857. Like many others, he was drawn into real-estate transactions, and, like them, suffered from the depreciation of values which came with the crash. From this time forward, speculations had no attraction for him, and I think he thereby became the more faithful lover and the more complete servant of the profession to which he was attracted so early in life. I remember, early in the seventies, his partner offering him an interest in a small purchase of real estate, which gave excellent promise of a large percentage of profit; but Mr. said, "No, I have already had all the profits of real-estate transactions I can afford." On arriving at Dubuque, his natural liking for books and study cropped out at once. During the first winter of his residence there, he conceived the idea of organizing a public library, and solicited the donation and loan of books from private libraries to that end. He also delivered a series of lectures, the proceeds of which were devoted to the same purpose. The books thus procured were kept at first in his own office, and from this nucleus has grown our Young Men's Library Association, which is a leading institution of its kind in Iowa, and one of which Dubuque is justly proud. Early in his residence in Dubuque, he took a prominent part in a movement which, to those who knew him only in later years, seems strange indeed. He was one of the organizers of the Republican party in Dubuque, and, with Honorable O. P., the late H. A. Wiltse and others, took an active part in the Fremont campaign. Those who know how little natural taste he had for political life can see that in this course he was prompted solely by his belief in the principles of early republicanism, and by his consciousness of his duty in that regard. In 1861, the Young Men's Christian Association of Richmond, Virginia, made an appeal to all its kindred organizations in the north, for co-operation in a movement which should permit "the erring sisters to go in peace." This circular letter reached the Young Men's Christian Association of Dubuque, and Judge, then one of its officers, replied in a letter so scathing and so unanswerable as to cause it to be copied into almost every loyal paper in the north.

I doubt if any man in Iowa has received greater recognition of his intellectual endowments and scholarly attainments than Judge. For many years he was president of the non-partisan board of education of his adopted city, and in its entire history it never had a more valuable member than he. He was instrumental in the organization and maintenance of The Round Table, a gentlemen's literary club, which flourished in Dubuque for nearly, if not quite, a quarter of a century. He was an active member of the Iowa Institute of Science and Arts, an organization the object of which is told in its name. For seven years he was a regent of the University at Iowa City, for about the same length of time a trustee of Humboldt College, and for fourteen years he was one of the professors in the Law Department of the State University. Early in the sixties he had acquired an enviable reputation at the bar, and prior to 1870, when I first knew him, his fitness for a seat in this court was recognized by the entire bar of the state. In 1876, he became a judge of this court, which place he occupied twelve years. In 1888, his college, Dartmouth, conferred upon him that which he richly deserved, the degree of LL. D. During the years of his residence in Dubuque, upon special request, he prepared and delivered public addresses upon intellectual topics, which, if printed, would fill a volume. These acts of public recognition are not meaningless, and in no case could they more fully attest the merit of the recipient than in his.

This skeleton of the events of his career does not give even an indication of his real life. It is impossible to speak or think of him as a lawyer, independently of his position as a citizen and a man.

As must be seen, his studies did not end with his graduation from college. Indeed, with him, his college course was but the preparation for a life of study. In all of the intellectual growth and development which has taken place during the last fifty years, Judge kept abreast of the foremost, and, during all that time, no lover of true education could pass an hour in his society without being the gainer thereby. Such a man could not live in a community for thirty-six consecutive years, without leaving thereon an indelible impression of his worth.

To such a mind as his, law was a delight. His manner in the presentation of facts to a jury was not only clear and lucid, but analytical and convincing. In his argument upon the law of a case to a court, his style was even happier. For fustian and clap-trap he had no use. He never tried a case to the back seats. In a trial, he had but one object in view,—to win his case by the greater weight of law or evidence, and never by those artifices, unfortunately too frequently employed, which tend to lower rather than to raise the standard of professional ethics. If he had a failing in this regard it was that he inclined to deal with his adversary as using only the weapons which he, himself, employed, and that a discovery that the methods of his antagonist were not morally commendable did not always have the effect to prepare him for a similar means of warfare upon a subsequent occasion. He was always in earnest—never in fun; yet he had a keen sense of genuine humor, which at times he employed with excellent effect. That he was strictly honorable in all things, goes without saying.

Ordinarily, he did not pass for a man of the people. He was not a "hail fellow, well met." A peculiarity of vision had the effect to withdraw him somewhat from that companionship with the public generally, which enables some men to maintain such large followings. This enforced restricted companionship was, at once, a loss and a gain, to both him and to his fellow men. In so far as it prevented him from knowing other people and other people from knowing him, it was a loss to both. But it had the effect to force him more frequently to seek his own thoughts for companionship than he might otherwise have done. This brought about in him that high mental polish which so few people attain, and in this he and his intimate friends were decidedly the gainers. As a matter of fact, however, he was a man of the people. The young men of the Dubuque bar ever found in him a kindly adviser and a considerate friend. The ordinary marks of rank, such as are conferred by wealth and the like, were nothing to him. By the simplicity of his living he proved that the best things in this life can be enjoyed with very little money, and that it is not necessary to spend all one's energies to amass wealth in order to acquire culture and refinement. True worth and merit, regardless of their surroundings, never passed him unrecognized.

But it was reserved for those who knew him in his private and his family life to take his full measure. He sought illuminated souls rather than illuminated houses. The motives which guided him in his household could be the motives of the humblest and the poorest man—divine life, with cheap living. It has been said that his grave aspect and reverend counsel covered a heart glowing with the sweet kindnesses and charities of domestic life. He was an intensely religious man, but not in the ordinary acceptation of the term. There was about him no cant, no manifestation of outward forms. Sacred things with him were not necessarily Asiatic or Roman. His religion was of the most rational type. For years it was his habit—not known to the world—to put upon paper little gems of thought which came into his mind when it was in its most receptive mood. Among the lines thus preserved are these, taken from the body of a little poem: And these from the same: On being asked to make a contribution to the columns of a legal magazine, he sent the following lines, which have been termed almost playful in their adaptation of legal phraseology to a graver subject: For all that is the very best in culture and in the betterment of the intellect, his house was the home, and for it his door was ever open wide. In his family he sought to show, by precept and example that every thought and act, whether good or bad, must bear fruit, that excellence was attained only by constant attention to the present, and that the acme of excellence was open to all. In this vein was written his lines, entitled Of his judicial labors others will speak. His decisions which form a part of the written law of this state show the character of the monument he builded for himself, and words upon that branch of his life would illy become me in this presence.

Yes, is dead; but, as I move that these resolutions be spread upon the records of this court, there comes unbidden to my mind a thought voiced upon a similar occasion. No, he is not dead. The effect of such a life as he lived cannot pass away. His deeds do not go down into the grave with him. While to his face, his form, his frame, we say, regretfully, "Farewell! Goodnight," to his precepts, to his example, to his efforts toward the elevation of his kind, to his work upon the jurisprudence of the state of which he was so proud, we may confidently say, "Hail! Good morning!"

Upon the conclusion of Mr. Hurd's remarks the court was further addressed by Honorable, as follows:

May it please the court: I should do violence to my own feelings, should I remain silent when a tribute of respect is being offered to one whom I knew so long and well, and esteemed so highly. It was my good fortune to be associated with Judge in a judicial capacity from the first of January, 1876, for a period of eight years. It has always been a source of gratification to me, that I enjoyed in so large a measure, as I believe I did, his confidence and regard. He was a man of accurate learning, and superior general culture. He was a profound student, and a clear, methodical and correct writer. His reasoning was astute and convincing. His pen was a Damascus blade, which he wielded with the precision of an Apollo, and the strength of a Hercules. His love of justice dominated every other purpose and object. The perpetration of a wrong jarred upon his sensitive nature, like a discord upon the ear of a skilled musician. He set before himself no other object, he was actuated by no other purpose, than the attainment of exact truth, and to this he bent all his energies regardless of popular approval or clamor. He was never the exponent of any particular doctrine or the champion of any particular idea. During the whole period of my association with him, I never heard him suggest the popular effect of a decision as a reason for, or against, any proposed line of determination, and such considerations, I am convinced, had no influence upon him whatever. It has been said that a block of marble endowed with intellect would present the most complete example of a perfect judge. There is a sense in which this is true, and a sense in which it is not true. A judge needs not be oblivious to the weaknesses and the sufferings of humanity, but he must not permit his sympathies to warp his judgment, or his feelings to dethrone his reason. Judge held the scales of justice with an absolutely even hand. In his adjudications the blindfolded goddess had no reason to fear partiality or complain of prejudice. He was no more swerved from what he believed to be right, by the hope of popular applause, or the fear of popular displeasure, than would be a marble statue. Over the entrance to a cemetery at one of the national fortresses, where sleep in unmarked and undistinguishable graves thousands of the Confederate dead, who, honest, but misguided, laid down their lives in defense of a defenseless and "lost cause," is inscribed this charitable maxim of the ancients: De mortuis nil nisi bonum.

No such maxim needs be invoked by him who speaks of the life and character of Judge. No one who truthfully speaks can say aught but good of our departed friend. His life was exceptionally pure and blameless. During a period of eight years I never heard him suggest a thought, or utter an expression, which would have been out of place in a drawing room of the most polite society. It was his misfortune to ask a continuance of popular favor at a time when popular prejudices were in the ascendant, and when the tempest of popular passion was accustomed to uproot everything that did not bow before it. It may even yet be too soon to expect exact justice to be done to his excellences as a man, or his merits as a judge. But when passion and prejudices have subsided, when sober reason resumes her wonted place, the future historian will rank Judge amongst the purest, wisest, ablest of the judges of the court which I now address.

Affectionate friends may rear to his memory marble column or granite shaft, but the most enduring monument to his fame is found in the thirty-two volumes of the decisions of this court, which contain his opinions. Whilst letters endure, and civilization remains, his fame is there secure. He has there "a monument more lasting than brass, and more sublime than the regal elevation of pyramids, which neither the wasting shower, the unavailing north wind, nor an innumerable succession of years, and the flight of seasons shall be able to demolish."

His lifework, nobly done, securely awaits the judgment of the future.

I second the request that the resolutions reported be spread upon the journals of this court.

Mr. Justice, on behalf of the court, responded to the resolutions and addresses of counsel as follows:

In the year 1876, and myself became members of this court, and he remained for twelve years. During that time we were engaged in the same work, side by side, and literally "went in and out together." The relation of judges in the same court is sometimes designated as that of brother. The nature of the occupation is such that the term is not inappropriate in a social sense. It involves close and almost continuous personal association. Judge impressed a stranger as a man of great dignity, amounting almost to austerity, and yet, when approached, he was the most genial, companionable and unselfish of men. No man excelled him in his consideration, sympathy and charity for others.

He was a most valued member of the court in consultation. He always expressed his views on any question under consideration in such a way as to impress his associates with the thought that he understood the matter in hand precisely, and while slow to come to a final conclusion, and patient in investigation, when his mind became satisfied as to the proper decision to be made, he maintained his position with great firmness and supported it by the most convincing reasoning. He was never garrulous, never wandered from the very question to be determined, and never attempted to evolve the law from his mere "inner consciousness." He paid due respect to precedent, but determined for himself the soundness of the reasoning upon which precedents were based. He always sought to reach some controlling principle upon which to base his conclusion. He was for four years the chief justice of this court. As a presiding officer he was remarkable for his courteous manner and uniform kindness to the bar and the public.

It is well known that he was not only profoundly learned in the law, but was a most accomplished classical scholar. He pursued the classics as a student in college, and he taught the classics for a time as an educator, and he never abandoned his literary studies even while engaged in the arduous and exacting labors required of him as a member of this court.

The opinions of this court as prepared by Judge will be found from the forty-second to the seventy-third volumes of our reports. These opinions are models of pure English, and command the respect of the bar and the public as correct expositions of the law, ably, clearly and concisely expressed. One feature of his opinions worthy of mention is that although learned in the classics he never resorted to quotations from the Latin or any other language than the English. He believed that as the English language was employed in the courts of this country, it was pedantry to attempt the use of any other. He never at any time put his scholarly attainments on parade. His natural modesty and simplicity of character precluded an exhibition of learning, unless for some reason it became necessary.

He was not dogmatic; his opinions all through show that kindliness of heart which was ever present with him, and, as one side in every legal controversy must suffer defeat, he always endeavored to administer the law without harshness of expression, and with courteous and at times sympathetic language. One instance of his charity for others I may relate. On one occasion an attorney engaged in presenting his case to the court was very vehement in his language and gesticulations, and failed to present any points worthy of consideration. While the argument was in progress, I said to Judge, in a whisper: "Why can't we see ourselves as others see us?" referring to the effort of counsel. The reply was, "It would never do; if we did, many of us would go out and hang ourselves."

Judge was always of frail physical organization, and yet he retained all of his mental vigor until within a few hours of his death. Some time before that sad event I visited him, and, although he had then suffered intensely for many weary months, I found him in the full possession of all his mental power.

He was in that tranquil state of mind by which he was enabled to And as I stood by his open grave and cast in a sprig of evergreen, I thought of the closing words of the masterly oration which was spoken over his dead body: "Hail! noble brother of a noble race, and, for awhile, farewell."

After some further remarks by Chief Justice, who testified to his high appreciation of Judge ' ability as a member of that bench, the resolutions presented by Mr. Hurd were ordered spread upon the records.