632 HORACE GRAY. 



His skill in framing rules, decrees, and such formal matters, helped by 

 Lis sense of order, was wonderful. In the correction of all that he 

 wrote he spared no pains. 



As has been said, his historical study made not a few of his opinions 

 longer than they would have been if written by another judge. Doubt- 

 less he gave himself to historical research in cases where another judge 

 would have neglected it, satisfied that research could not affect the 

 decision. I do not find that his historical exposition was ever irrele- 

 vant. That the experience of the past has important bearing upon such 

 matters as the lawfulness of acts done under color of military authority, 

 the precise definition of the term soldier,* an abutter's ownership of the 

 fee in a street, f the legality of a lease of land in a rebel state, + to 

 take a few of his earliest important opinions at random, must be plain 

 even to one who is not a lawyer. And, as he said himself, " In constru- 

 ing any act of legislation, whether a statute enacted by the legislature, 

 or a constitution established by the people as the supreme law of the 

 land, regard is to be had, not only to all parts of the act itself, and of any 

 former act of the same law-making power, of which the act in question 

 is an amendment ; but also to the condition, and to the history, of the 

 law as previously existing, and in the light of which the new act must be 

 read and interpreted." § So also of cases concerned with the conflict of 

 laws and with international law. || In the Arlington Heights case, the 

 wealth of learning contained in his dissenting opinion has seemed to many 

 persons, as it seemed to the majority of the court, beside the question 

 involved ; but it must be remembered that three of his colleagues agreed 

 with him, among them Judge Bradley, after Gray himself the most 

 learned member of the court. 



" He is often called a great case lawyer," said Mr. E. R. Thayer, 

 one of his secretaries in Washington, " as if his greatest gifts were in 

 the direction of recording the thoughts of others rather than in original 

 thought of his own. I believe this to be a misconception, and one for 

 which the style of his opinions is largely responsible. I have often re- 

 gretted some features of this style, as failing to do justice to himself ; 

 but these features were due primarily to a conception of the judge's 

 duty to which he held with the strength that characterized all his 

 views on questions of principle and obligation. In the matter of giving 



* Tyler v. Pomeroy, 8 All. 480. 



t Boston v. Richardson, 8 All. 146. 



| Kershaw v. Kelsey, 100 Mass. 561. 



§ U. S. v. Wong Kim Ark, 169 U. S. 649, 653, 654. 



11 Ross v. Ross, 129 Mass. 243; The Paquete Habana, 175 U. S. 677. 



