030 HORACE GRAY. 



of the common law in taking for its guides judicial opinions, given after 

 argument, under the responsibility of determining the rights of parties in 

 actual controversies, rather than the theories of scholars and commentators, 

 however learned or acute." * He liked historical research, and, until he 

 knew everything that history could tell him, he was unwilling to decide 

 a case. He had both the thoroughness and the accuracy of the scholar. 

 No relevant detail was overlooked. Having learned the development of 

 the doctrine which governed the case before him, he had the scholar's 

 proper pride in setting out that development so fully that no other man 

 need repeat the investigation. In his longer opinions, the historical 

 statement often made the largest part, but this could hardly be otherwise. 

 He did not value precedents for their age or peculiarity. He turned 

 to the Year Books not very often, and always referred to the case last 

 decided in the authoritative courts of England and the United States. 

 His antiquarian learning did not cost liim his sense of proportion. 



Once a judge, he gave to his judicial duties his entire service. With 

 his talents and habits of mind, that service would have been of great 

 value had it begun only in middle life. Appointed to the Supreme 

 Court of Massachusetts at thirty-six, he had gathered before middle 

 life a fund of judicial experience. For a year he sat on the bench 

 of Massachusetts with Therou Metcalf, born five years before the adop- 

 tion of the federal constitution. As circuit justice of the first circuit, he 

 had for four years as a subordinate colleague a district judge seventy- 

 one years Judge Metcalfs junior, born only six years before the out- 

 break of the rebellion. His opinions are contained in forty-three 

 volumes of Massachusetts reports and in seventy-nine volumes of reports 

 of the Supreme Court of the United States. He learned to be a judge 

 while his habits of mind were flexible. In matters other than judicial, 

 his opinions were vigorously expressed without much hesitation, and 

 some " his prejudices were considerable. In deciding a case, his con- 

 sideration was not less patient than was his research exhaustive. As 

 his secretary during his last twenty months in Massachusetts, I observed 

 that he examined literally every case cited in every brief, unless the 

 case cited was already f;imiliar to him. Lawyers know almost as well 

 as judges how recklessly citations are sometimes shovelled into a brief 

 in the hope that the court may find in them something relevant which 

 counsel have not had time to discover, and they will appreciate Judge 

 Gray's unalterable patience. One of his latest secretaries has told me 



* Kimball v. Aetna Ins. Co., 9 All. 540, 551. 



