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 The Green Bag VOL. XVIII.

No. 6

BOSTON

JUNE, 1906

MR. JUSTICE BROWN BY CHARLES H. BUTLER IN October 13, 1890, the Supreme Court of the United States met after the summer vacation. It reassembled, as the chief justice announced, in immediately adjourning the court and postponing the visit customarily paid on the opening day of the term to the President of the United States, under the shadow of a great afflic tion. Samuel Freeman Miller, then the senior justice of the court and one of its most distinguished members, lay danger ously ill in his Washington home. That afternoon he died and the court entered upon the term with a vacancy.1 He had been appointed twenty-eight years before by President Lincoln, and, as AttorneyGeneral Miller said a few days later, in presenting to the court the resolutions of respect and sympathy by the Bar, "the finding of such a judge by the President was only less fortunate than the finding of such a President by the country." Congress did not meet until December and on the twenty-third of that month President Harrison sent to the Senate, as Justice Miller's successor, the name of Henry Billings Brown, then judge of the United States District Court for the East ern District of Michigan, in the Sixth Cir cuit. The nomination was confirmed unani mously forthwith and the commission dated the twenty-ninth, but the court had ad1 The court at that time consisted of the present chief justice, from Illinois, and, in the order of their seniority, Justice Field from California, Justice Bradley from New Jersey, Justice Harlan from Kentucky, Justice Gray from Massachusetts, Justice Blatchford from New York. Justice Lamar om Mississippi, and Justice Brewer from Kansas.

journed for the Christmas holidays and so it was not until the opening of the court, on January 5, 1891, after the recess, that he formally took the oath prescribed by law, and, as Mr. Justice Brown, took the seat on the extreme left of the Bench which is always left vacant for the justice last sworn in, and which had been last occupied by Justice Brewer, Justice Brown's immediate senior who thirty-four years before had graduated with him in the same class at Yale College. The rule of seating the associate justices by order of seniority — the oldest sitting on the right of the chief justice, the next in order on his left, the next on the right of the senior associate, and so on, has pre vailed in the court since its organization, and whenever a justice retires his seat is occupied by his immediate junior, the seat so vacated being taken by the one next in seniority, and so on, thus always leaving vacant for the last appointee the chair on the extreme left. It is only those justices who survive all of their seniors who finally reach the chair on the right hand of the chief justice. Since the formation of the court this has happened in fifteen cases. Of the fifty-four associate justices who have sat upon the Bench since its organization, only Justices Rutledge, Paterson, Gushing, Chase, Washington, Miller, Johnson, Duval, Story, McLean, Wayne, Nelson, Miller, Field, and Harlan, have occupied the chair assigned to the senior justice. At the time of his appointment Justice Brown was somewhat over fifty-four years of age, having been born in South Lee,