Thomas McIntyre Cooley
The Michigan Alumnus 174-179, 236-242

THOMAS MCINTYRE COOLEY, 1824-1898


The following article on Judge 
Cooley is composed of excerpts from
 the biography, written by President 
Hutchins for the series "Great Amer
ican Lawyers," published by the John
. C. Winsten Co., of Philadelphia, un
der the editorial supervision of Wil
liam Draper Lewis, Dean of the Law 
Department of the University of 
Pennsylvania. The biography appears 
in the seventh volume. The following 
selections are intended in a measure 
to supplement the sketch by Mr.
 Hutchins, which appeared in THE
 ALUMNUS for October 1906. We 
take the liberty of reproducing the 
very interesting portrait of Judge 
Cooley which was then published for
 the first time. —Editor. 


EARLY LIFE


Thomas McIntyre Cooley was born
 January 6th, 1824, in Attica, New
 York, and died at his home in Ann
 Arbor, Michigan, September 12th, 
1898. He came of New England 
stock, his earliest paternal ancestor 
of whom we have any knowledge being Benjamin Cooley, a man of some 
local prominence in Massachusetts 
during colonial times. According to 
the family history, early in the last
 century, four Cooley brothers, one of
 whom was Thomas, the father of the 
subject of this paper, removed from
 Massachusetts to become pioneers in
 what was then the wilds of western 
New York. Settling near what is now 
the village of Attica, they became substantial farmers and men of consider
able influence in the neighborhood, 
 though none of them, so far as can be
 learned, ever held office or aspired to 
leadership in local affairs.

Thomas 
McIntyre was the tenth in a family of 
fifteen children. Simply to provide 
the necessities of life for such a family was no easy task for the pioneer 
farmer, and it is not a matter of surprise that he was able to furnish to his 
children only limited opportunities for
 education. As a boy, the future jurist 
labored upon his father's farm, and 
up to the age of fifteen years had only 
the educational advantages afforded 
by the district school of the neighbor
hood. These were meager in the extreme, but he seized upon them with 
that eagerness for learning that characterized his entire life.

He acquired
 with great ease and rapidity, and even 
during his district school days was
 looked upon as wise beyond his years. 
 It was in his case as in many others, 
the foundation of his learning rested 
in the habit, early formed, of continuous and discriminating reading. While 
yet a youth, he had become familiar
 with much that is best in our litera
ture.

His love of historical reading 
and study developed early. It is the 
tradition that as a boy his evenings 
were spent at home where, by the light
 of the open fire, he would absorb such
 standard historical authors as good
 fortune might throw in his way.

At
 fifteen young Cooley was a pupil in a 
school of the neighboring village, 
 called Attica Academy. This he at
tended with more or less regularity 
for three years, maintaining himself 
very largely and perhaps entirely
 through his own efforts. The summer 
found him at his work on the farm, 
 and it is known that he helped himself 
by teaching district school for several 
terms. While in the Attica Academy, 
 he studied the subjects ordinarily pur
sued in such a school, giving particu
lar attention to Latin, algebra and ge
ometry. 


Even as a youth, Judge Cooley had
 apparently determined upon a plan of 
life. It was his early purpose to become a lawyer and to fit himself for 
his life work by thorough prelim
inary training. His hopes for a college education were confided to his
 mother. She seems to have under
stood the boy, as the father apparently 
did not, and in her the son found a 
sympathetic adviser. She was a wo
man of more than ordinary parts, and
 although not educated herself, appre
ciated fully the advantages that a college training may give.

As is not in
frequently the case with those who are
 unfamiliar with that training, she may 
have exaggerated its importance. She
 could not know that this son had in
 him the stuff that would supply deficiencies and make opportunities; 
hence her anxiety that the best in the
 way of education should be his and
 her encouragement that his ambition 
might be realized.

The disappoint
ment of both was keen when they met 
with unyielding opposition in the 
father, based to some extent doubtless 
upon his inability to furnish the necessary funds, but largely upon his 
lack of sympathy with the ambition 
of his son. The father was an up
right man in all his dealings, respect
ed as a citizen and neighbor, but his
 horizon was a narrow one, and his
 mind had doubtless been cramped
 and warped by the hard experiences
 of a pioneer life. At all events, the
 ambitious plan of his son was to him 
not only an impossible one but in ev
ery way undesirable.

The father was 
a farmer and the son should be a far
mer. This was the decision, and argument became useless. The outlook 
for the youth was certainly not encouraging. It would have disheart
ened an ordinary spirit. But this boy
 had red blood in him and an indom
itable will. He could not be conquer
ed by poverty, neither could the fath
er's opposition crush him. He was 
alive to the fact and understood its 
full significance, that if he was to 
take a place in the world, he must 
make it for himself.

To a man of 
natural parts, a realization that his fu
ture depends upon his own exertion, 
becomes a spur to action that is al
ways pushing him forward to new 
achievement. Judge Cooley in his ma
ture years often expressed regrets that 
he did not have a thorough prepara
tory training and early social advan
tages, yet a deficiency in these respects was never apparent in him as 
a man. As one of his colleagues in 
the Law Faculty of the University of 
Michigan has said: 


Somehow Judge Cooley attained a 
better education than nine-tenths of 
the college graduates. He learned 
from reading and the great school of 
life, where most of us get the disci
pline, which is most useful. And it
 may be that this was the best school 
for him. 


The training of the schools is, with
out doubt, harmful to some natures, 
 as it stimulates in them feelings of 
self-consciousness, distrust and self-
depreciation, always fatal to the high
est success. One cannot, for exam
ple, read the story of Lincoln's life
 without being impressed with the no
tion that any other education than 
that, which he had, might have dwarf
ed his rugged strength. And it is 
quite possible that through the disci
plinary and refining processes of for
mal education, there would, in Judge
 Cooley's case, have been a loss of that
 independence in thought and judg
ment and action, and of the construc
tive power that so conspicuously characterized his mature life. It may have 
been fortunate for him and for the 
world that necessity made Judge
 Cooley his own instructor.

It is apparent that even before he 
left the Attica Academy, young Cool
ey realized that the most valuable part 
of an education consists in the contin
ued use and development of one's 
powers by independent thought and
 action. For he was not content with
 accomplishing simply the assigned 
tasks, but was continually doing things
 that required initiative and the exer
cise of independent thinking. He was
 active in the literary exercises of the 
school, appearing upon several public
 occasions. He began to have definite 
ideas upon some of the public ques
tions of the day, and occasionally ar
ticles from his pen appeared in the
 local press. Indeed, it is said, "he
 wrote passable verses, some of which
 were published in the Attica Demo
crat." But it was as a writer of prose 
that he excelled, even as a youth, and
 no small part of his success in life 
was due to his ability, constantly ex
ercised, to express his ideas in com
pact, clear and forceful English. Na
ture gave to Judge Cooley the power 
to think clearly, and thinking clearly, 
 he wrote clearly. No one could ever 
be in doubt as to his meaning. 


Abandoning with keen regret his 
hopes for a better preparatory train
ing, young Cooley began the study of 
law in the summer of 1842 in the
 office of Theron K. Strong, at Pal
myra, New York. His preceptor 
was afterwards a judge of the Su
preme Court of the state, but at this 
time he was a practitioner of standing 
and influence, busily engaged with the
 demands of his numerous clients. 
From him the young student could 
expect little aid other than directions 
in regard to clerical work in the of
fice and occasional suggestions as to 
the order of his reading.

But in his 
preceptor the young man had before 
him what certainly was of great val
ue, an example of professional indus
try and masterfulness; for Judge
 Strong was a practitioner who believ
ed in the genius of hard work and
 who devoted to the large interests 
committed to his guidance the best efforts of which he was capable. Few
 of the details of this apprenticeship 
have come down to us, but it is not 
improbable that the great energy and
 ceaseless industry which became the 
prominent characteristic of the future
 jurist, were aroused in no uncertain
 way by this early influence.

Why it
 was that young Cooley suddenly, in
 1843, started for the west, does not 
distinctly appear. It has been stated, 
 though perhaps without sufficient authority, that the opposition of the 
father to the son's plan for a profes
sional career, was really the influence 
that prompted the change. Doubtless 
the opportunities that a new and un
developed country would afford, had
 much to do with it.

Although he is 
said to have had in mind Chicago as
 an objective point, the young man 
stopped in Adrian, Michigan, appar
ently for no other reason than that his
 means for further travel had become 
exhausted. Here he at once resumed 
his law studies in the office of Tiffany 
and Beaman, where he remained un
til he was admitted to the bar in Jan
uary, 1846.

In order to support him
self during this apprenticeship, he did
 any kind of work that offered, wheth
er professional or not. He copied
 records for the county, and for a time
 discharged the duties of deputy coun
ty clerk. It is the tradition that he identified himself with the interests
 of the village and was popular with his fellow townsmen. An extract 
from a local paper of the time shows 
that he was a member of a village
 military organization, known as the
 Adrian Guards, whose muskets and 
cross-belts were said to have been 
brought over from France by Lafay
ette.


On the thirtieth day of December, 
1846, the year of his admission to the 
bar, Judge Cooley was married to
 Mary Elizabeth Horton. He was then
 twenty-two years of age and she was 
sixteen. The union proved a most 
fortunate one. Mrs. Cooley was the
 ideal wife, a helpmate in every sense
 of the word. She appreciated the
 work of her husband and was a constant source of encouragement to him. 
A devoted mother, she yet found the 
time to meet and discharge in a most
 gracious way her many social obliga
tions and public duties. Her death 
in 1890 was a stunning blow to the 
husband and family, and made deso
late what had always been an excep
tionally happy home. 


THE MICHIGAN STATUTES. 


In 1857 Judge Cooley was in his 
thirty-fourth year. He was still a
 country practitioner, and while be
coming fairly well known in South
ern Michigan, he cannot be said to 
have gained an extended reputation
 as a lawyer. Up to this time his name 
appears but once in the Supreme
 Court reports of the state. But he
 was soon to be accorded recognition, 
 and this was to come quite as much 
through his ability to write clear, accurate and forcible English, as 
through his ability as a lawyer.

In
 1857 two statutes were passed by the
 Legislature of Michigan that were to
 have a distinct influence in the life of 
this young man. They gave to him 
opportunities for which he had been
 waiting and fitting himself. The one 
provided for a compilation of the laws 
of the state and the other for the independent Supreme Court of the 
state. The Legislature appointed him 
compiler of the laws. Doubtless po
litical influence had something to do
 with his appointment, for Judge Cool
ey was acting with the dominant par
ty, and was always considerable of a 
politician, though never an extreme
 partisan. But it was urged that he
 was well fitted for the duties of the 
office on account of his literary abil
ity and his capacity for accurate and
 rapid work. The execution of this commission proved that the claims of 
his friends were well founded. It was
 done within the short time fixed by 
law, nine months, and in such a way
 as to meet with general commenda
tion and to give to the young com
piler a state reputation. The work in
volved great labor, great accuracy 
and great discrimination. The logical 
mind is apparent in the arrangement, which has been the model for every 
subsequent compilation. The entire
 work bears the stamp of an accom
plished lawyer and the man of correct literary taste and judgment. 


The successful completion of this 
work meant much to the compiler. 
 The accurate and comprehensive 
knowledge of the statute law of the
 state thereby acquired, was to be of
 great assistance to him in his sub
sequent career, as lawyer, judge 
and jurist but its immediate service lay in the fact that it brought 
his name prominently and favorably 
before the profession of the state 
and particularly before the judges 
of the court of last resort.

When, 
 therefore, in 1858, Mr. Cooley was 
appointed by this court the repor
ter of its decisions, the selection
 was generally recognized by the 
profession as most fitting. It was
 very soon apparent that the court had
 found the ideal reporter. The work
 was to Mr. Cooley's taste, and he
 brought to it not only the never-flag
ging energy that characterized his en
tire active life, but powers of analysis 
and discrimination that are rarely 
found in t he court reporter. He had, also, what the court reporter too often 
lacks, the ability to write with terse
ness and accuracy.

His syllabi are 
models of comprehensiveness, compactness and lucidity. In reading 
them, one is never in doubt as to what 
the reporter thinks the court has de
cided, and one soon finds that a verifi
cation of the reporter's conclusions is 
not necessary. It is not a matter of 
surprise to find that the volumes, 
 eight in number, issued by Mr. Cool
ey, appeared promptly and that they 
stand as excellent examples of court 
reporting. 


TEACHER AND WRITER.


Upon accepting the law professor
ship, Mr. Cooley removed to Ann Ar
bor, the seat of the State University, 
 and that city continued to be his residence during the remainder of his 
life. He identified himself at once
 with the interests of the University and the city, and although de
voting much time and great energy 
to his duties as professor, he also re
tained his office as reporter. He was 
continuously in the service of the De
partment of Law for twenty-five
 years, and during twenty years of that
 time, he also served upon the Supreme Bench of the state. With the
 exception of a single year, he was un
interruptedly on the teaching staff of 
the University from the time of his
 appointment as professor in the Department of Law until his death, a 
period of nearly forty years. 


Judge Cooley was undoubtedly a 
great teacher. He had the teaching
 power to a remarkable degree. He
 was a thorough master of his subjects 
and always gave to his students the
 best of which he was capable. Al
though not an orator in the popular
 sense, he at once challenged and held 
the attention of his large classes by 
the absolute clearness and simplicity 
of his exposition. In slow and meas
ured utterances, his enunciation perfectly distinct, his English a model of
 lucidity, he would so unfold the sub
ject that inattention was impossible. 


The thin voice was forgotten and per
sonal peculiarities were unnoticed. 
 His hearers were dominated solely by 
the intellectual power of the man. No 
student ever left Judge Cooley's lec
ture room without feeling that he had 
listened to a great expounder of the 
law, and no student who came under 
his instruction and influence ever left 
the University without being con
scious of a debt of gratitude to this 
great teacher. When we remember 
the thousands who, during his long
 term of service sat under his instruc
tion and the places of importance and 
influence that many of them have held
 and are now holding, not only at the
 bar but also upon the bench and in 
legislative and executive fields, we
 can realize in some degree the extent 
of the indirect influence of Judge
 Cooley upon the legal thought and life 
of our times. But his contact with 
the students was not confined to the 
classroom.

During almost the entire
 period of his service in the Depart
ment of Law, he was the only resi
dent professor, and during practically 
all of that period he was its Dean. 
 He was thus brought more directly in 
contact with the life of the students 
than were his associates, and in this
 way became to a very large degree 
the molding force in the Department. 
"The largest share of the success of 
the school," says one of his associates 
upon the Faculty, "must be attributed 
to him."


To one of scholarly temperament, 
 a university connection offers much
 that is attractive and affords oppor
tunities that one can rarely command
 if absorbed in active professional or 
business life. At the University, 
 Judge Cooley found, not only most
 congenial society, but also an environ
ment that undoubtedly stimulated his
 natural taste for literary work. Al
though he continued to give his chief
 energies to the law, his studies in the 
allied fields of history and political
 science were such as to bring to him 
distinguished recognition.

From boy
hood his interest in American history 
had been intense, but he now devoted 
to the subject extended and systematic study. His attainments in the 
historical field were such that in 1885, 
 after his retirement from the Depart
ment of Law and from the Supreme
 Bench, he was elected professor of
 History and Dean of the School of Political Science in the Literary Department of the University. Previous
 to that time he had for several years 
given courses in the School of Politi
cal Science, in which from 1881 to
 1884 he held the professorship of 
Constitutional and Administrative
 Law.

In 1886 he was made Profes
sor of American History and Consti
tutional Law and Dean of the School
 of Political Science. But the public
 demands upon his time were such that
 in 1887 he was obliged to discontinue 
regular work in the University, 
 though he thereafter gave occasional
 brief courses upon legal and histori
cal subjects, as long as his health
 would permit.

Judge Cooley's fame 
as a lecturer upon legal and allied
 subjects was by no means confined to
 his own university. His services were 
frequently sought by the leading universities of the country, but his engagements were such that he was 
obliged to decline the invitations ex
cepting in two instances. For three
 successive years he lectured in Johns 
Hopkins University upon Constitu
tional Law and Municipal Govern
ment, and he also delivered a series
 of lectures on the Interstate Commerce Law before the law students of
 Yale University.

In November 1864, Mr. Cooley 
was elected to fill a vacancy upon the
 Supreme Bench of the State, caused
 by the death of Mr. Justice Manning. 
The nomination came to him unsolicited, as did every summons to official
 station during his entire life, and his
 election followed as a matter of 
course. His efficient services as re
porter, his recognized standing as a 
painstaking and scholarly lawyer of 
judicial temperament, and his reputa
tion as an accurate and rapid worker 
commended him at once to the pro
fession as a man eminently qualified
 for the place.

As one of his associates upon the Supreme Bench has 
said, he "was chosen as if by a sort 
of natural selection to fill the block 
in our judicial temple torn from its 
place by the death of Justice Manning." Judge Cooley continued to be 
a member of the court until his res
ignation, in 1885, and in discharging 
the functions of his high office he 
rendered to the state and to jurispru
dence most distinguished service.

A 
place upon a state court of last resort 
is one of prime importance, and de
mands ability and preparation of high 
order, yet it is not one that under or
dinary circumstances attracts public at
tention or brings more than local recognition even in the profession. The 
people generally know that they have
 a court of final appeal, but the major
ity of them utterly fail to appreciate
 its influence as a restraining and mold
ing force in the state. While a court
 may be regarded by the best informed
 in the profession as exceptionally able, 
or some member thereof may be 
known to them as the writer of learn
ed and exhaustive opinions, neither 
the court nor the individual judge re
ceives the general public recognition 
that is accorded to one who has suc
cessfully exercised public functions in
 the executive or legislative fields or 
to one who has ably treated public
 questions in the field of authorship. 
 The reason is not far to seek. The
 courts of this order are numerous, 
 their decisions are bewilderingly so, 
and the questions considered in the
 majority of cases are not such as to
 challenge public attention. The im
mediate bearing of a decision is upon
 private rights and interests, and a
though it may be of special signifi
cance and importance to the people
 as settling some general principle of
 law within the jurisdiction, it fails to
 attract public attention because its
 public bearing is not appreciated. And 
so it happens that while the judges
 of a court of last resort are declaring 
the law under which the people are 
to live and by which their rights, in
terests and liabilities are to be deter
mined, the great work of these public 
servants is little understood by the 
general public and by such work alone 
one rarely acquires fame or general 
recognition even in the profession. 


The Supreme Court of Michigan during the time that Judge Cooley was a
 member of it was undoubtedly one
 of the ablest of the state courts. Its 
judges were not only men of great 
learning and great industry, but they
 were men of large experience in the
 affairs of life. They had, moreover, 
 the judicial temperament in a marked
 degree. Their opinions, as a rule, 
 were scholarly and exhaustive discussions of the principles involved, and
 in the most of them we find not simply the decision of the individual case
 but a positive contribution to juris
prudence. It was indeed fortunate
 for the state that at a time when there
 were so many unsettled questions to be
 determined by its court of last resort; 
the men upon the bench were of the 
masterful and constructive type.

But
 while the opinions of the court at this 
time undoubtedly influenced to a very
 considerable extent the law of other 
jurisdictions, particularly in the west, 
 where they were freely cited and fol
lowed, its reputation in the country
 generally was probably due very
 largely to the fact that Judge Cooley
 was upon the bench. Not that he was 
more able as a judge than were his
 associates, for he was not; they were
 all men of exceptional judicial capacity; but the attention of the profession generally the country over had 
been challenged by Judge Cooley's
 great work upon constitutional sub
jects, and that attention was natur
ally directed to the court of which he
 was a member. If, like his associates, 
he had confined his energies entirely 
to judicial duties, it is probable that 
his name would not have been better 
known than theirs and that the court
 would not have had the high national 
reputation that it enjoyed during the
 period that he was upon the bench. 


But it is not intended by the writer 
to convey the impression that because
 Judge Cooley did not, in his opinions, 
 display greater judicial ability than his
 associates upon the bench, he was not, 
 therefore, a great judge. He was a 
great judge, as were his associates. He
 was a great judge but with only the 
opportunities afforded by a state tri
bunal. Whatever he did in the field, he 
did thoroughly well. But his chief ti
tle to distinction lay in his ability as an 
expounder of constitutional questions, 
and this he exercised as an author 
more largely than as a judge.

Could 
he have had the opportunities that 
Marshall had, such was his grasp up
on fundamental principles and such 
his ability for logical, forceful and
 exact statement that he would un
doubtedly have been the equal of 
Marshall upon the bench. It is, how
ever, with Judge Cooley as he was
 upon the bench and not as he might 
have been, that we have to deal. And 
it is no exaggeration to say that he
 was the ideal judge. He combined in
 a rare way the qualities that go to
 make up the judicial temperament. 


No one who appeared before him
 could forget the careful and painstak
ing attention with which he followed 
the argument of counsel. He was
 preeminently a good listener, and one 
always felt that his occasional ques
tions were a positive aid in the devel
opment of the subject under discussion. He moreover always gave the
 impression that he was bringing to the 
consideration of the case his best 
thought and best judgment. No one ever detected in him the slightest tinge
 of prejudice. He always preserved
 the judicial attitude. He was kind
ness itself upon the bench, particularly to the young practitioner, although
 always dignified and scrupulously just.


"I have a keen recollection," said
 one of the distinguished members of 
the bar upon the occasion of the me
morial exercises in the Supreme 
Court, "of the encouragement which, 
 as a young practitioner, I received 
from Judge Cooley's careful attention
 and evident sympathy during the ear
lier arguments I made before this tri
bunal." And upon the same occasion 
another said: "I would not if I
 could, and I could not if I would, for
get my first appearance before the 
Supreme Court. The court was then 
composed of Judge Graves, chief-jus
tice, and Judges Cooley, Campbell, 
 and Christiancy, associate justices. 
I found myself upon my feet, brief
 in hand, but unable to utter a word. 
 The simple formula, 'May it please
 the court,' lodged in my throat and 
refused to be uttered. I seemed to 
feel the earth open beneath me, and 
was upon the point of taking my seat 
when I heard the voice of Judge Cool
ey, full of gentle encouragement, calling my attention to a certain case I 
had cited in my brief, and asking if 
I had the volume before me. The ice 
was broken, and I preceded with the
 argument."


While the qualities to which reference has been made are important in
 the appellate judge and tend to gain 
for him the confidence, respect and 
esteem of the bar, the judicial meas
ure of the man is nevertheless to be 
found very largely in the record of 
his judgments. And measured by his 
standard, Judge Cooley must be ac
corded a place in the front rank. In 
his haste he occasionally made mis
takes and sometimes, perhaps, reached wrong conclusions, but such de
fects were rare.

I am very sure it
 may be said that Judge Cooley never
 wrote a poor opinion. He wrote very 
many good ones and some of exceptional excellence. Probably no judge 
upon a state supreme bench ever left
 a record that, all things considered, is 
superior to his. In reading his opin
ions, one is impressed first by the
 power of the man to reach at once
 the real merits of the case, to dispose
 of the questions in their logical order, 
 giving to each only such attention as 
its importance demands, and by his 
lucid and forceful English. From 
premise to conclusion his argument is
 always logical, compact and definite. 
Legal principles are stated with the 
utmost clearness and precision and
 are marshaled in such a way as to 
show distinctly the basis of his con
clusions. One feels that the opinion
 came out of the brain of the man
 who wrote it, and that it is not the 
mere reflection of another's learning, 
 and furthermore one is never in doubt
 as to what the writer means. To lum
ber opinions with long quotations, or 
to turn aside into the confusing field
 of obiter dicta are sins of which 
Judge Cooley was never guilty.

An
other quality that impresses the read
er is the independence of the writer 
in thought and judgment. It is per
fectly apparent that while precedents
 were useful to him, they were not his
 master. Judicial authorities were his
 guides and helps, but he had the good
 sense to understand that such author
ities should be interpreted in the light
 of the conditions that gave them being
 and that their conclusions should be 
followed only when it clearly appears
 that similar conditions demand their
 application.

Yet Judge Cooley's opin
ions clearly indicate a safe conserva
tism. It has been truly said, "He
 was slow to disturb the settled trend
 of the law to meet the requirements 
of special cases." He recognized ful
ly the difficulties and dangers that in
evitably follow a departure from the 
fundamental principles of our juris
prudence. But notwithstanding his 
conservatism, it is distinctly apparent
 in his opinions that his mind was al
ways on the alert to discover the equi
ties of the case. While he would
 enforce a hard and fast rule of law 
that was grounded in principle if the 
case came squarely within its provis
ions, yet his sense of justice would not
 allow this if oppression would follow 
and there were equities with which he 
might temper his conclusions.

This 
quality of the man is well illustrated 
in the very first opinion that he wrote, 
 wherein he refused to allow a case to 
be governed by the letter of the statute of frauds, the facts clearly indi
cating that to do so would convert the 
statute into an instrument of fraud. 
 It has been well said by an associate 
upon the bench that his opinions "are
 lasting monuments of his legal attain
ments, his love of justice and his
 broad and correct views of the law in 
its application to the affairs of men."


HIS "CONSTITUTIONAL LIMITATIONS."


Although he had great ability as an 
appellate judge and made a name up
on the bench that few have equaled, 
 Judge Cooley's national reputation began with, and is still largely based up
on his law books, and particularly up
on his great book upon Constitutional
 Limitations. His permanent fame as 
a distinguished jurist will undoubted
ly rest upon this great work.

No
 American law book was ever accord
ed more marked recognition, and none 
ever had or probably ever will have a
 more extended influence. And yet
 the book was probably the result of an 
incident that at the time of its occur
rence made little impression upon the
 minds of those concerned. I give it
 in the words of one of the associates
 of Judge Cooley upon the bench. He
 was speaking of the organization of 
the work in the Department of Law 
of the State University, as it had to
 do with Judge Cooley. 


"As the topics for each lecturer 
were at first arranged, constitutional 
law was not in the series. It was not 
added until the next year. To
 show what circumstances, small and
 untoward in themselves, often will
 turn the trend of our fortunes and 
make or unmake us, I will relate the
 circumstances, as I heard them from
 Judge Cooley, which originated, de
veloped, and brought out 'Cooley's
 Constitutional Limitations.' He said 
that, in consultation, the Faculty determined that this subject should be 
added to the course; that, in his own 
mind, he had immediately felt that
 Judge Campbell, owing to his great 
knowledge of the law, his experience
 in the practice of it, and his great abil
ity upon the bench, was the best qual
ified to lecture upon that subject, and 
he so suggested; and Judge Walker
 was of the same opinion. But Judge
 Campbell absolutely declined to take 
the subject, stating that he had his
 own ideas of constitutional law, and
 was aware that they differed from
 those of many eminent jurists, and
 that he absolutely declined to lecture
 upon that subject.

Judge Cooley then
 suggested that Professor Walker take
 the subject, when he also absolutely 
declined, and nothing was left but for
 Judge Cooley to take it up and lecture 
upon it. These lectures and his study
 of the subject culminated in 'Cooley's 
Constitutional Limitations,' which
 first appeared in 1868, and established 
the reputation of Judge Cooley as one
 of the greatest living authors upon 
one of the greatest living subjects of
 the day. This opportunity was not
 seized, but was thrust upon him, and 
the performance of the task attests at once his genius and ability as a jurist 
in this almost untrodden field of 
thought."


The circumstances that compelled
 Judge Cooley to give careful and stu
dious attention to constitutional sub
jects were not only fortunate for him 
but for jurisprudence as well. His 
mind was naturally adapted for the 
study and development of such subjects, and he was well-fitted for
 the task by his previous system
atic reading in American history 
and his deep sympathy with the
 constitutional restraints that the 
abundant caution of the fathers had
 imposed. That he was a firm believer
 in the fundamental doctrine of our in
stitutions, is unmistakably apparent 
in every chapter of the book. He
 wrote, as he says in his preface, "with 
greater faith in the checks and bal
ances of our republican system, and
 in correct conclusions by the general 
public sentiment, than in a judicious, 
prudent, and just exercise of un
bridled authority by any one man or 
body of men, whether sitting as a leg
islature or as a court." The result
 was a book that is safely conservative 
but at the same time abundantly sug
gestive. He necessarily covered fields 
that were wanting in the guides that 
judicial interpretation furnishes, and 
in this part of the work, the great con
structive ability and sound judgment 
of the man stand out in bold relief. The fact that the courts in subsequent decisions have almost without excep
tion adopted his views upon questions
 considered by him that had not re
ceived judicial determination at the 
time that he wrote, is a testimonial of
 excellence probably never before ac
corded to the same extent to a legal
 author.

This and the further fact that 
in the treatment of questions that had 
been settled by the courts, he stated 
the law as it had been settled, clearly
 and fully and without any attempt to 
interpose his own views, have commended the book to the profession 
and the courts as an authority of the
 very highest order. In the field of 
constitutional construction it stands
 without a rival; in form and sub
stance, it is and always will be a great
 legal classic. It has been said with
 truth that this great work "has made 
Judge Cooley's name respected where ever men study American constitu
tional law."


But before the verdict of the pro
fession had settled the question, 
 Judge Cooley apparently had a very
 modest idea of the value of his work. 
 This was characteristic of the man. 
 In his uncertainty, he submitted the 
manuscript to two of his associates 
upon the bench and their enthusiastic
 comments gave him greater confi
dence. This, however, was soon to be 
shaken. The book had been written 
without a publisher in view. And he 
soon found that publishers as well as
 he doubted its value. It was rejected
 by the first to whom it was submitted, a mistake the senior member of the 
firm once said to the writer that he
 would never cease to regret to his dy
ing day. It looked for a time as
 though the author must be his own 
publisher if the book were to see the 
light. But the manuscript was finally, 
though with considerable hesitation, 
 accepted by a prominent house, the 
members of which were surprised as
 well as gratified by the immediate and 
great success of the book. 


At the time this work was pub
lished, Judge Cooley's name was prac
tically unknown in the field of legal 
authorship. He had then, to be sure, 
been upon the Supreme Bench of the
 state for three years and had written 
some excellent opinions. He had 
been a member of the Law Faculty 
of the State University for nearly ten
 years, and had attained an extended 
reputation as a lecturer of great abil
ity and power, particularly upon constitutional subjects. He had also contributed occasional articles to legal
 periodicals and had published a digest 
of the decisions of the State Supreme 
Court. He was, moreover, known to 
the profession of the state as a thor
ough student of the law and as a 
writer of exceptional clearness and 
force. But he had never before at
tempted a sustained work covering an 
entire field of jurisprudence. That his
 first effort should result, as it un
doubtedly did, in the great work of 
his life, was due to several causes that 
it may not be inappropriate to con
sider. 


The field was practically a new one. 
 Judge Cooley preempted it and his oc
cupation was so thorough and com
plete in every particular that no one 
has since appeared to question his 
title, accorded to him by the united
 opinion of the profession, as the great 
authority upon constitutional limita
tions. Much had been written upon
 American constitutional law, but it 
had been chiefly upon the interpre
tation of the national Constitution. It
 was left for Judge Cooley at a com
paratively late date to discuss the lim
itations imposed by the national Con
stitution and the constitutions of the 
states upon the legislative power of 
the states. The opportunity was ex
ceptional. The time of publication, moreover, was fortunate, for the peo
ple, particularly in the south, were 
then intensely interested in constitu
tional questions.

Judge Cooley had
 the ability to discover the opportunity 
and he had what was of more importance, the good judgment to plan a
 work and the constructive power to 
execute a work that would be of gen
eral application. The men capable of 
grasping such a situation and master
ing it are few. The difficulties in the
 way had probably prevented an ear
lier work upon the subject. By reason of their differences in detail, the
 state constitutions would ordinarily 
be thought to present separate and
 distinct fields, each peculiar to itself; 
 and the ordinary student would con
clude that a treatise upon the state
 constitutions would involve the sepa
rate consideration of each instrument.


Such a work would necessarily be of
 great length and would not appeal to
 the profession as a whole. This Judge 
Cooley appreciated. He, therefore, 
 wisely concluded to omit details, ex
cepting by way of occasional refer
ence, and to confine the discussion to
 the great general principles that are
 common to all the constitutions. This
 plan enabled him to develop in a large
 way such general and fundamental
 subjects as the formation, amendment 
and construction of state constitu
tions, the powers of the legislative de
partment, the enactment of laws, the
 circumstances under which a legisla
tive act may be declared unconstitu
tional, the several grades of municipal
 government, constitutional protections 
to person and property and to personal liberty, protection of property by 
the "law of the land," liberty of 
speech and of the press, religious lib
erty, the power of taxation, eminent
 domain, the police power of the states,
 and the expression of the popular
 will. As introductory to the fore go
ing he presents a brief but comprehensive view of the powers and re
strictions of the national Constitution. 


But it is one thing to hit upon such 
a plan and quite another to execute it
 effectively. This requires construc
tive ability and powers of generaliza
tion of a high order; it requires also
 a sense of proportion and literary 
skill. These qualities, as already sug
gested, Judge Cooley possessed in no
 ordinary degree. He had, moreover, 
 what is quite as essential, a genius of 
hard work. It has been truly said of 
him "nature gave to him an unusually clear and analytical mind, and
 a courage undaunted by any difficulty 
or mountain of labor."

To the prepa
ration of this volume he devoted years
 of systematic study and careful 
thought. It represents the most thor
ough and exhaustive work of his life. 
 That there was a demand for such a 
book, particularly at the time of its 
appearance, was a circumstance that 
undoubtedly contributed somewhat to its success, but the principal reason for its commanding and continued influence is to be found in the fact that upon every page it bears the impress of masterly ability and conscientious and thorough work. The writer who calls it “the chiefest law book of this generation,” does not exaggerate.