Theron Metcalf

Associate Justice memorial

119 Mass. 600 (1875)

The Honorable Theron Metcalf, a justice of this court from the twenty-fifth day of February, 1848, to the thirty-first day of August, 1865, died at his residence in Boston on the thirteenth day of November, 1875. A meeting of the members of the bar of the Commonwealth was held in Boston on the eighteenth, at which a resolution was passed, which was presented to the full court on the twenty-seventh by the Attorney General. Before presenting it the Attorney General addressed the court as follows:

May it please your Honors, -- With your permission I desire to present a resolution, unanimously adopted at a meeting of the members of the bar of the Commonwealth, as the expression of their appreciation of the life, character and labors of the Honorable Theron Metcalf, late an associate justice of this court.

In the performance of this duty I can say nothing not already known to the court, nor can I improve upon the nice discrimination, just criticism and honest appreciation contained in the resolution.

Born in Franklin, in the county of Norfolk, on the sixteenth day of October, 1784, we know but little of his childhood and youth, save what was gained by an occasional playful remark from his own lips.

In 1801 we find him a member of the Freshman class in Brown University, then Rhode Island College, from which he graduated with honor. For his Alma Mater, Judge Metcalf always cherished a filial respect and love. Among his teachers were numbered the accomplished and eloquent Maxey, then President of the college; David Howell, one of the ablest constitutional lawyers in the Continental Congress; Calvin Park, father of the distinguished Professor Park of Andover; and John Reed, within our recollection a member of Congress and Lieutenant Governor of Massachusetts; and among his fellow students, Dr. Adoniram Judson, the distinguished Baptist missionary to Burma; Dr. Benedict, the historian of the Baptists; Willard Preston, the first President of the University of Vermont; Governor Morton of our own state; Senator Allen; Judge Randall of Rhode Island; and John Whipple, since the leader of the Rhode Island Bar, always distinguished for its learning and ability; and Henry Wheaton, Envoy Extraordinary and Minister Plenipotentiary to Prussia, and the author of "Elements of International Law." Under such influences Mr. Metcalf developed the qualities which afterwards led to his distinction in his profession; and his efforts and success as a scholar are treasured with pride in the traditions of a University which has contributed its full share to the distinguished men of the Republic.

Leaving college, he at once entered upon his legal studies, and in 1808 he was admitted to the bar of the Court of Common Pleas. Three years afterwards, according to the rule then existing, he was admitted to the bar of this court.

In 1809 he established himself in Dedham, where he remained thirty years, devoting himself with untiring zeal and patient labor to the studies and duties of the profession, which he loved for itself rather than for those rewards to which its constant votaries are entitled. He held the office of County Attorney for twelve years, and until the office was abolished and that of District Attorney established. He was a member of the House of Representatives in the years 1831, 1833 and 1834, and of the Senate in 1835. In each of those years he was chairman of the committee on the judiciary. In 1839 he was appointed Reporter of the decisions of this court, which position he filled until he was appointed to the bench in February, 1848, where he remained until his resignation August 31, 1865.

Amid the labors and duties of his professional life he found time to assist the profession and contribute to the science of the law, and his editions of Yelverton's Reports, of Starkie on Evidence, Russell on Crimes, and Maule and Selwyn's Reports, beside numerous contributions to the leading legal and literary reviews and periodicals of the country, attest his accurate learning and ripe scholarship. As one of the commissioners in 1885 to supervise the publication of the Revised Statutes, the index to which was his own and a model of its kind; in his share in the preparation of the first volume of the United States Digest; in his Digest of a part of the Massachusetts Reports, and his Supplements to the Revised Statutes from 1836 to 1844, he made the profession and the Commonwealth largely his debtors. In 1867 he published a work entitled 'Principles of the Law of Contracts, with examples of their application,' which consists of ten articles originally contributed to the American Jurist, commencing in October, 1838. These articles attracted great attention in the legal profession and were unanimously commended.

I have thus hastily sketched his life and labors, that the record may show how he had compacted his life with usefulness, and how absorbingly he gave himself up to purely professional labors.

Born directly after the adoption of the Constitution, he seems to me perhaps the last of the men of eminence who connected us personally with the founders of the state. He had lived and walked and talked with Parsons and Sewall and Parker and Fisher Ames, and, like them, was fully imbued with the spirit of the common law, had made himself familiar with all its sources and master of its principles. It has been said of him, by one competent to give the opinion, that he was one of the greatest masters of the learning of the English common law which the American Bar has produced. Modest and self-depreciating to a fault, he was ever just to parties, able, patient and courteous to counsel, and, if not as distinguished as others have been as a nisi prius judge, his learning, his industry and his patience rendered him of the utmost value to his associates in bank and in the consultation room.

His life to us is a lesson of industry, energy and self denial; its results will reach far down the tides of time, long after the memory of him and his labors shall have passed away from the traditions of men; but he will be remembered by us and our contemporaries, in the language of Chief Justice Redfield, from whom I have already quoted, as "the model reporter, the learned, able and pure-minded judge, the unexceptionable law-writer, the accomplished scholar, the good citizen, the faithful friend, the earnest and devout and courteous Christian gentleman."

The Attorney General then presented the following resolution:

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 express 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 long 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 reputation 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 clearness and directness of his intellectual processes, the unusual terseness and purity of his style, and the entire trustworthiness of his statements.

We hope that younger men whose professional courses, mental habits and modes of expression are yet to be formed, will respect the wisdom which selected a profession to which his talents and faculties were well adapted; the fidelity which gave to it the single-minded labor of a lifetime; the conscientiousness which, claiming no public reward, received promotion only from the general sense of his fitness for the posts assigned him; keep before them his clearness, conciseness and parity of expression; and duly honor a life which has made jurisprudence its debtor.

We request the Attorney General to present this resolution to the Justices of the Supreme Judicial Court for the Commonwealth, at its present session, and to ask them to enter upon its records this tribute of respect to their late associate.

Chief Justice Gray responded as follows:

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 excellent 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 thorough 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 records of his arguments at the bar, beginning more than a hundred volumes back in the series of our reports; his annotations of Yelverton, 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 text books, of which it is sufficient to mention Starkie on Evidence, in which he doubled the number of authorities referred to; his Essay on Contracts 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 parity of style and clearness and exactness of expression.

Of his knowledge of those branches of jurisprudence, to which, judged by his own standard, he had not paid special attention, his modesty sometimes led him to speak so slightingly, as to mislead those who received his words literally, while, to those who knew him better, it seemed to border on affectation. His learned argument in the leading case in this Commonwealth on the subject of foreign laws, reported in the ninth volume of Pickering, shows that it was from the civilians that he obtained his favorite maxim, Juris ignorantia est si JUS NOSTRUM ignoramus.

Outside of the law, his reading was confined to the classics and the best old English authors. His kindly temper and manner, his shrewd observation, his wonderful memory, his dry wit and fund of unrecorded anecdote, made him a most entertaining companion to those of every age. But he was peculiarly accessible and cordial to his juniors in the profession. For myself, I gladly take this occasion to testify that, from the time I was a student at law, to that of meeting him in the consultation room of the judges, I was constantly indebted to him for friendly advice and valuable instruction.

We do not mourn for him as for one stricken down in the midst of his usefulness; for we knew that his means of communicating with earthly friends were failing, and that he was at the end of his pilgrimage, on the very bank of the river, waiting, in Christian faith and hope, for the summons from the Celestial City.

As a sign that the memory and the example of Theron Metcalf are duly honored in the profession to which he devoted his life, it is ordered, in accordance with the request of the bar, that their resolution, together with a memorandum of these proceedings, be entered upon the records of the court.

The court then adjourned.

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