THOMAS M. COOLEY AS WRITER AND TEACHER.

By Andrew C. McLaughlin, '82.


On the morning of September 12th, there died at his home in Ann 
Arbor, Michigan, one of the greatest American jurists of the century. Although he had not held a position on the supreme bench of the United 
States, and his work was carried on in large measure in one of the western 
states, he achieved more than national reputation, and it is not an exaggeration to say that the name of Cooley is now placed beside those of Marshall, 
 Story and Kent. His opportunities for laying down new and fundamental 
principles were not those of Marshall; nor could he be, like the great Chief
 Justice, a statesman as well as a judge. Perhaps he did not have the 
philosophic insight and comprehension or the broad learning and scholarly 
attainments of Story. But he had his own field of work in which he was 
the acknowledged master. So thoroughly was this work done that he has 
not only no rival, but no competitor. As Marshall laid down the great 
principles of construction in dealing with the constitution of the United
 States, Cooley in a similar but distinct field marked clearly out the fundamentals of state constitutional construction and interpretation. This work 
was done not simply as a judge upon the bench; but chiefly in his great 
treatise on Constitutional Limitations, probably the most signal contribution
 to legal literature that America has produced; certainly the chiefest law
 book of this generation.

If one should endeavor to discover the reason for this book's surpassing merit, he would at first find difficulty in clearly seeing its distinguish
ing characteristics; and one must admit, when all is said, as he must when 
passing judgment on any masterly product of human genius, that the
 whole defies analysis and carries its worth and its power within its whole
 self. Wholeness and symmetry in the structure of a law book are as neces
sary as in any other work, if it is to approach perfection or make a lasting 
impression. It must be remembered that, in the study of state constitu
tional law, practically nothing had been done when Judge Cooley entered 
upon his task. The state constitutions were even then changing and bearing 
the impress of new movements in Society and of varying industrial conditions. The constitution of the eighteenth century was short, terse and
 general, a character of government distributing authority and confiding, 
 with slight restrictions if any, full legislative power to legislative chambers. 
 The all important fact, that the people were the sovereign authority and that 
the government was only their agent, had not found full expression in these 
documents, nor had the people themselves, as yet, come to the full realiza
tion of their power. The modern constitutional convention, an American 
instrument of government, had not as yet shown its capabilities, had hardly 
made its essential character manifest. As the nineteenth century went by, 
 the state constitutions were enlarged, restrictions were placed on govern-
mental authority, and the legislative itself was bound about by regulations 
and limitations, which were intended to prevent hasty and unjust action; 
and the people, not content with grants of power and with limiting the 
authority granted, legislated for themselves on scores of subjects which
 were not at all within the scope of the earlier constitutions. Perhaps there 
is in existence no better index of the social and industrial development of 
the American people in the last hundred years than that furnished by the 
scores of state constitutions which have been enacted; and, if the consti
tutions of the eighteenth century were new and strange, those of the 
nineteenth are even more essentially novel, unlike anything that history 
has to offer. 


In writing a treatise, therefore, on the " Constitutional Limitations 
which rest upon the Legislative Power of the States," Judge Cooley, thirty
 years ago, was entering upon a new field of study, and, even as he wrote, 
 conditions were changing. He was not called upon to formulate well 
known and established principles of the common law, and to show, as did
 Kent, how American conditions had altered and modified them. He was 
not able even to reach back into the past for a mass of material that called 
for analysis and orderly arrangement. He had, one might almost say, 
 to seize the present, and to exhibit the principles on which men were acting; in organizing his material he could not follow the example of previous writers, but must himself survey the whole field, and analyze, 
 classify and arrange. 


Now many, if not the majority of law books, are little more than 
copious digests. The text often contains the language of the decisions. 
 The cases are collected and gathered into divisions and the results formulated. Sometimes the writer has not the talent to discern the general prin
ciples that the cases have established, much less to announce them with 
precision. A book that is more than a digest, must contain more than an 
assortment of decisions. It must make plain the nature of the decisions; 
while it recognizes the force of authority, it must not hesitate to criticize 
the conclusions of the courts or to point out that established rules are based
 on bad reasoning or upon hastily considered opinions. Its generalizations 
must be real generalizations; they must be more than a mass of particu
lars. That the Constitutional Limitations was, from this point of view, a 
great law book, the careless student would see at a glance. Here is the
 work of a master, who, while not a doctrinaire intent upon the assertion
 of cherished theories, does not hesitate to distinguish between authority 
and the teachings of reason and sound judgment. But the Limitations
 did more than merely criticize and discuss the opinions of the courts. One 
hesitates to say that the author formulated principles and the judges of the
 land took up the task of furnishing decisions to support his conclusions; 
but there is in reality some truth in such an assertion. If one looks over
 the decisions cited in the foot-notes of the later editions of this work, he
 will find in many instances that a decision, instead of furnishing the data 
from which the principles of the text were drawn, was itself rendered by 
a court acknowledging the weight of Judge Cooley's opinion and the co
gency of his reasoning.


It is unnecessary probably to say that, if language is intended to con
vey ideas and not conceal them; Judge Cooley was a master of legal style. 
 So perfectly plain and lucid is his statement that many a student has been
 misled into believing that the whole subject under consideration is simple 
and not intricate; so nicely are sentences and paragraphs adjusted, so nat
urally do they fit into their places, that the unwary reader does not realize, 
as he reads, that he is considering the most formidable of legal problems; 
 he is tempted to read and enjoy, not ponder or inwardly digest. This
 clearness and simplicity, like the essentials of any true style, were part of 
the man himself, the exponents as they were the results of a character free
 from ostentation and a mind that never seemed to see through a glass 
darkly, but always face to face. And yet he formed no exception to the
 rule that hard writing makes easy reading; he wrote with great care, often
 rewrote once if not twice, and published only the finished and polished
 product of his toil. Of course this accuracy and precision of statement 
came from fullness of knowledge and from marvelous skill in analysis. 
 But analysis was a small part of his work. His talent lay in construc
tion, not in mere dissection or in drawing fine lines of distinction-
Although no proper building could be done, till the parts were carefully 
selected and assorted, the great and difficult task was to put the parts together into a symmetrical whole; and so thoroughly was the work of framing and jointing done, that the art was concealed in the perfection of its 
accomplishment.


In dealing with constitutional construction, one is both aided and hin
dered by the established rules for statutory construction. When courts and 
judges began the difficult task of discovering the meaning of constitutions, 
 they had fresh in their minds the code of maxims for the interpretation of
 statutory law. The great renown of Marshall was won, his everlasting
 service was rendered, because of the ease with which he broke away from
 rigid rules of statutory construction, and, guided by the admonitions of 
sound judgment and common sense, laid down new fundamental principles
 for interpreting the constitution and for determining the validity of gov
ernmental action. A somewhat similar task confronted the men who were 
called upon to pass upon the nature and effect of provisions in the state
 constitutions. These instruments were not mere statutes, and the common 
code for statutory construction proved inadequate and unsatisfactory. It 
was necessary to consider broad questions of public policy and to appre
ciate the substantial character and the real activities of the state. The read
er of the Limitations is impressed by the facility with which the old and 
familiar rules of statutory interpretation are applied and by the readiness with
, which they are disregarded when, they are found inappropriate. Of course, 
the author did not discover all of these principles by mere speculation and
 cogitation. In many instances, if not in a majority, the courts of the land
 had reached the same conclusions, although in doing so they were some-
times guided rather by instinct than by reason. But even where there is 
abundant authority for a series of propositions the reader feels that they 
are not based solely on precedent, but are in accord with sound principle 
and are the inevitable results of a fair examination of the nature and pur
poses of the constitution and the essential functions of government.

While the Limitations was Judge Cooley's greatest work, he won dis
tinction in other branches of the law. His edition of Blackstone has long 
been the standard edition. His treatises on Torts, Taxation and Constitu
tional Law are marked by masterly skill and power in handling material. 
 It is to be regretted—as I have reason to know that Judge Cooley himself 
felt—that he did not write a great commentary on the federal constitution
 instead of preparing the fourth edition of Story; but his notes and comments on Story's work are of inestimable value and have added materially 
to the worth and influence of that book. In addition to his writings on
 technical subjects, he published many articles of permanent value on polit
ical and historical subjects. He was more than merely a learned lawyer; 
he was a careful and systematic student of history, a study which he could 
both appreciate and enjoy; for he did not, as many a lawyer trained in his
 science is apt to do, distort historical facts by an application of the rules
 of logic. The reader of his books will notice his familiarity with the best
 historical material, and his sympathetic knowledge of the men and movements of the past. His little book on the history of Michigan is one of the
 very best in the series to which it belongs, and it bears many of the char
acteristics of his legal writings; the style is clear, simple and straight-
forward, and the facts are skillfully handled. 


Judge Cooley has left an indelible impression upon the law school of 
this University, and upon the hearts of thousands of men throughout the
 land with whom he came into contact as a teacher of law. His lectures
 were models of orderly arrangement, and as free from any display of learn
ing, as they were from obscurity and needless complexity. His principles
 seemed always to be primary, immediately deduced from the actual rela
tions in society, or founded on the sentiment of justice and on the natural 
and self-evident teachings of history. He did not cite authorities for each
 and every proposition; indeed, when once he had declared a proposition, it
 seemed to need no authority upon which to rest; and he never balanced a 
principle on the point of a long logical argument, which had its origin in
 mysterious suppositions. No one can estimate aright, no one can, I 
think, over-estimate the influence of such a teacher upon the minds and 
character, of the young men who listened to him. Legal learning, they 
discovered, was not near akin to smartness and had nothing in common
 with dialectic legerdemain. Cogency and force in argument did not result 
from verbose repetitions, but from compact assertions of principles that
 were so sharply drawn and so simply stated, so plainly consistent with the
 teachings of justice and honesty as to carry conviction by force of their 
first impact


As I have already suggested in the course of this sketch, Judge Cooley's
 work was the natural product of himself. He who knows the books knows
 the author—a strong and simple man, free from pretense, incapable of the 
slightest deception even in dealing with himself, looking the problems of 
daily life fairly in the face, dealing with the actual and the real and seeing 
the eternal foundations of the commonplace. One may rightly invert the
 famous phrase which he himself quoted from Cervantes: if it be true that
" Every one is the son of his own works " it is equally true that in every 
sense he is their father, and they inherit from him their native character 
and form.