Page:Legal Bibliography, Numbers 1 to 12, 1881 to 1890.djvu/99

 5 JUDGE METCALF. Therox Metcalf. author of Principles of the Law of Con- tracts, a new edition of which is announced in this number, was born in Frani<lin, Mass., Oct. i6, 1784. He graduated in 1805 at Brown Uni- versity, and in 1807 at the Litchfield (Conn.) Law School, then the only school of law in the United States. Returning to Massachusetts, he practised law in his native town, and afterwards in Dedham, the county- seat of Norfolk County. During the thirty years of his residence there, he occupied many positions of dignity and trust. In 1828 he began to give courses of lectures to law students in Dedham. The course upon Contracts, afterwards published in successive numbers of the "American Jurist" (1838-41), forms the foundation of Metcalf on Contracts. In 1820 he edited an excellent edition of Yelverton's Reports. In 1826 he edited the first American edition of Starkie on Evidence ; and in 1831, the second American edition of Russell on Crimes. In 1832 he edited a condensed edition of Maule and Selwyn's Reports. He was one of the Commissioners appointed to revise the Statutes of Massachusetts in 1835. In 1839 he was appointed Reporter of the Massachusetts Supreme Court, and published between 1840 and 1847 the thirteen volumes which bear his name. In 184S he was appointed an Associate Justice of the State Supreme Court, — an office which he held for seventeen years. Thirty-eight vol- umes of Reports by Cushing, Gray, and Allen, during this period, contain seven hundred and ten opinions from his pen. In August, 1865, he re- signed his seat upon the Supreme Bench, and lived in retirement in Bos- ton until his death in November, 1875, '^t the age of ninety-one. The resolutions adopted by the Bar of the Commonwealth, shortly after his death, speak thus of Judge Metcalf : — " The members of the Bar of the Commonwealth, called together by the death of the most aged of our number who has held judicial office, desire not so much to e.xpress a sense of immediate loss, — for we know that he had passed beyond the time for useful labor, — as to bear our testimony to the great services which Theron Metcalf rendered the science of jurisprudence, to the simplicity of his character, the courtesy and kindness of his manners, the fidelity with which he discharged every public duty, and his almost unique devotion of a long life to the profession of his choice. /"While the traditions of his courtesy, geniality, and quaint humor, of his patience, indefatigable labor, tenacious memory, and deep affection for all that concerned the learning or administration of jurisprudence, may not survive so "ong as we could wish, we are confident that he has established, by his labors as an author and a judge, in his treatises, annotations, and judicial opinions, a repu- tation that will not pass away. We believe that other generations of lawyers will recognize and admire, as we have, the rectitude of his judgment, the clear- ness and directness of his intellectual processes, the unusual terseness and purity of his style, and the entire trustworthiness of his statements." Judge Gray, of the Massachusetts Supreme Court (now a Justice of the Supreme Court of the United States), spoke as follows, in receiving for the Court the resolutions of the Bar : — " Gentlemen of the Bar : The Court heartily joins in your tribute of respect to one who was in so many ways a teacher of the present Bench and Bar of the Commonwealth in the rules and principles of the common law. " Judge Metcalf was an e.xcellent common lawyer. I doubt whether those who hear me have ever known a better. His deep and accurate knowledge was the result of the training of a clear intellect by years of unwearying study and much thought. Early in his professional life, he collected a nearly complete library of the old Reports and Commentaries, and, as he once admitted to me, read them all ; and his notes and references in the volumes themselves mark how careful and tliorough his reading was. His acquaintance with the sages of the law was so familiar and intimate that he had imbued himself, not only with their wisdom and learning, but with their spirit, and almost seemed one of them, in mastery of legal principles and rules of pleading, in pith and compactness of phrase, and in quaint humor. Even in personal aspect, as we remember him, he recalled the frontispiece of a folio of Croke or Hobart. The evidence of his legal knowledge and attainments, as well as of his sense of the duty which every man owes to his profession, is patent to all — in the re- cords of his arguments at the Bar, beginning more than a hundred volumes back in the series of our Reports ; his annotations of Velverton, published in 1820, of which forty years afterwards he would say in private that he was not ashamed, but which he shrank from hearing cited by his own name ; his editions of English te.xt-books, of which it is sufficient to mention Starkie on Evidence, in which he doubled the number of authorities referred to ; his Essay on Con- tracts in ' The American Jurist ; ' the first volume of the United States Digest, which, if he had completed the five volumes, might well have taken the same place in our law as that of Chief Baron Comyns in the law of England ; his Reports of decisions of this Court, which have been the model and the despair of his successors; and his judicial opinions during the seventeen years that he held a seat upon this bench, which are unsurpassed for purity of style and clearness and e.actness of expression." In a paper read before the Massachusetts Historical Society by George S. Hale, one of the leaders of the Boston Bar, he describes Judge Metcalf's characteristics as an author thus : — ■' He knew the common law, and — speaking as one having just authority — he declared it with a positive and grateful clearness. The language in which he p.aises his former teacher, Judge Gould, may be aptly applied to his own pro- ductions. In presenting what we may accept as his ideal of such composition, he unconsciously describes his own, and shows how successfully he labored to reach that ideal. " ' What the law 02ight to be, and what the law is,' are, he once said, ' two en- tirely different questions ; ' and he did not sympathize with or approve the dis- position to confound them in a treatise upon the law. " 'Mr. Gould, on the contrary,' he wrote, 'does not accumulate decisions, as if a point were to be settled numeris, non ponderibus, as if he had no opinion of his own, and did not expect the reader to be able to form one for himself ; but he lays down the principle — gives the rationale — refers to the authority, and passes on, without stopping to render dubitable all he has said, by telling us that it has been denied or overlooked by divers judges at sundry times, and that though such xuould seem to be the proper state of the matter, yet the law is gloriously uncertain, and on the whole there is nothing, either in principle or authority, that can safely be relied on, and considered as settled. We are grateful for a book that contains no such stuff as this ; we are thankful for a guide that pre- cedes us with a firm and unfaltering step, giving us confidence in our course by the steady light which he throws on it, and relieving us from the timidity and perplexity which darkness and cross-lights produce, and which his own unassured groping would inevitably enhance.' " A very excellent and characteristic portrait of Judge Metcalf is given on the first page of this paper. A NEW AND GOOD MASSACHUSETTS DIGEST. It seems rather singular that a Massachusetts Digest superior in some respects to all its predecessors should come out of New York : but it is J a fact that Throop's Digest of Massachusetts Reports, the author of which is a resident in Albany, N.Y., and is well known in New York legal literature, has attained a sudden popularity and an extensive sale since its publication in October last. The author's preface explains his plan, as follows : — " In the preparation of this work, the author, in order to render the substance of the decisions clearly and easily accessible and intelligible, has endeavored to avoid too much diffuseness on the one hand, and too much condensation on the other ; each of which tends, in a different mode, to confusion, difficulty, and ob- scurity. To that end, he has not contented himself with transcribing the head- notes of the cases ; but each case, with the exceptions presently mentioned, has been subjected to a careful original condensation by him, so as to present clearly and concisely the points decided, unless the head-note of a case has already made a condensation which he was unable to improve. " Where a decision lays down general principles applicable to a variety of cases, presenting differences of detail, he has permitted himself to use greater fulness of statement of such principles, than where a case is of more limited application. With respect to those cases, unfortunately too numerous, where the head-notes give long statements of facts, such statements have been so condensed as to pre- sent only an outline of the facts, upon which the decision necessarily turned ; but where that could not be done so as to present the result compactly, the case is merely referred to, with a statement of the general nature of the controversy, I suflicient to enable the inquirer to determine whether it bears upon the subject ! of his inquiry, so that he may, if necessary, examine it in the volume of reports. '■The pruning-knife has been freely applied to obsolete cases. Where the I author has thought that such a case might shed light upon a living question, it has been stated with sufiicient fulness to indicate the particular points presented; but j cases which appear to have entirely survived their practical utility have been (not omitted, but) grouped together, under a general statement of the subject to which they relate. ' " Great care has been bestowed upon the cross-references, so that those whose minds grasp a subject of investigation from a point of view different from the I author's may be readily directed to the place where the subject is treated." 1 Throop's Massachusetts Digest (2 vols., S12.00 net) is so concise. ■ so well arranged, so easily used, and so satisfactory, that even lawyers who have previous digests feel that they must have this one also, in order to save time and insure accuracy in their researches.