APRIL 3, 1906
At the opening of court on Tuesday, April 3, 1906, Mr. HERSCHEL H. HATCH, of Detroit, addressed the court as follows:
May it Please the Court: I have been requested by the Detroit bar association to present to the court the memorial and resolutions adopted upon the death of the late BENJAMIN F. GRAVES, formerly Chief Justice of this court, and ask that they be spread upon the records of the court and printed in the volume of Michigan Reports containing the proceedings of this term.
MEMORIAL.
We have met today to do honor to the fame and character of BENJAMIN F. GRAVES.
BENJAMIN FRANKLIN GRAVES was born at Gates, near the city of Rochester, in the State of New York, on October 17, 1817, and died at his home in Detroit, on Saturday, March 3, 1906. If he had lived until next October, he would have reached the great age of eighty-nine years. He was of New England ancestry–a son of an industrious race. Early in life his parents arranged that he should become a farmer, but he was a man of different pattern. He took to books, and began the study of law.
That was before the days of law schools. He studied in an office, the office of Curtis & Thomas, in Albion, New York. Afterwards he entered the office of Mortimer F. Delano, a lawyer of wide practice. He was admitted to the bar of New York in 1841. Among the friends and associates of his student days was Sanford E. Church, afterwards Chief Justice of the Court of Appeals of New York.
In 1843 he decided to emigrate to the west. He went first to the State of Kentucky, but not being satisfied with what he found there, he came to Battle Creek, Michigan, and began the practice of law. Battle Creek was then a small village, and the country around only sparsely settled. There was but little business to be transacted. During the early years of his residence in Michigan, he lived the life of a country lawyer. There were no great or remarkable suits to be tried. His experience was necessarily limited to small affairs and the details of office work. At Battle Creek he was elected civil magistrate, and appointed to the position of master in chancery.
In 1857 Mr. GRAVES was elected judge of the Fifth Circuit. At the expiration of his first term he was reelected without opposition. The people of his circuit had come to appreciate the character and ability of their judge. His duties on the bench were arduous and laborious. His circuit required the holding of sixteen terms a year, in several counties, to each of which he traveled. There were but few railroads in those days and the means of communication were such as were to be found in a new country. This was before the days of court stenographers and typewriters. Testimony taken in court was written out by both the judge and attorneys in longhand. The charge to the jury was frequently prepared in the same way. Trials were necessarily long and tedious. In l857, as such circuit judge, he succeeded Judge PRATT as one of the judges of the Supreme Court. At that time the Supreme Court was made up of circuit judges. Sessions of the court were held at Detroit, Kalamazoo, Adrian, Pontiac and Lansing. Service on the bench of the Supreme Court was simply so much in addition to his duties as circuit judge. Michigan, at that time, paid its circuit judges the salary of fifteen hundred dollars per year in addition to traveling expenses. His first term on the Supreme Bench ended with the close of that year, 1857. In 1866 illness compelled his resignation as circuit judge.
After 1857 the Supreme Court was reorganized. Circuit judges no longer made up the bench. It was provided that four judges should be elected directly to that office. The full term was eight years. In 1867 Judge GRAVES accepted the nomination for the office of Justice of the Supreme Court. He was elected and took his seat January 1, 1868. Then began the career which made him famous. He was thrown into association with CHRISTIANCY, COOLEY, and CAMPBELL, the other justices of the court. His first opinion appears in 16 Mich. 368. The case was an appeal in chancery, and, strange to say, Thomas M. Cooley was complainant. So thoroughly were his services and ability appreciated that in 1875 he was renominated for another term by both the republican and democratic State conventions and was unanimously elected.
In 1875 Justice CHRISTIANCY resigned, and MARSTON was first appointed and afterwards elected to his place. Years afterwards, after the sting of defeat in suits decided by the court had healed, and when the bar came to study the opinions of CHRISTIANCY, COOLEY, CAMPBELL and GRAVES dispassionately, it was discovered that we had a great bench. The judges, by way of compliment, came to be called the “Big Four.” These judges raised the standing of Michigan jurisprudence to a high level. Our Supreme Court came to be esteemed by the courts and jurists of other States and jurisdictions as one of the strongest.
Judge GRAVES declined a renomination in 1883 and returned to private life on January 1, 1884. He was then sixty-six years old and the reason given by him for declining was that he was growing old and that the weakness of age might unconsciously come upon him and impair his ability to discharge the duties of the position. He lived over twenty-two years thereafter and retained his abilities until within the recent past. The sequel did not justify his apprehensions. He continued to live in Battle Creek until 1894 when he moved to Detroit where he has since resided.
The members of your committee were all personally acquainted with Judge GRAVES while he was yet upon the bench. He was a genial, noble gentleman, a man of lovable character, and highly esteemed. As a writer of opinions, his style is individual. He frequently uses phrases and expressions not found in the opinions of the other judges, but his composition is grave, clear, strong, and convincing. He was a man of independent judgment and did not hesitate on occasion to dissent from his associates.
In BENJAMIN F. GRAVES, we had the highest type of man; a man of lofty character, great learning, tireless industry, and absolute devotion to duty, a model citizen. We recommend the adoption of the following resolutions:
Resolved, by the Detroit bar association, that we, deeply deplore the death of Honorable BENJAMIN F. GRAVES, and hereby extend our sympathies to the relatives and friends of the deceased, but, while realizing the sad event, we are reminded of the fact that the memory of the character, fame, and achievements of the deceased is left as a rich inheritance to the bar and to the people of the State of Michigan.
Resolved, that a copy of this memorial and of these resolutions be transmitted to the family of the deceased, and also that they be presented to the Wayne Circuit Court, the Circuit Court of the United States for the Eastern District of Michigan, and to the Supreme Court, and motion made that they be entered at length upon the records of said courts.
Resolved, that the president of this association be and he is hereby authorized to appoint a suitable number of the members to attend the funeral to the end that the bar of Detroit may be properly represented and do honor to the memory of the deceased.
H. H. HATCH.
C. A. KENT.
HENRY M. DUFFIELD.
LEVI L. BARBOUR.
ALFRED RUSSELL.
Adopted unanimously.
Continuing, Mr. HATCH said:
I shall not attempt to add anything to the memorial and resolutions. Judge GRAVES long survived the other members of the court who occupied the bench when he took his seat in January, 1868.
He lived to a great age. But finally nature has taken its course–the inevitable has come–the last word has to be said–Judge GRAVES is dead.
Nothing remains for us but to express our appreciation of his merits and do honor to his name.
I move that the memorial and resolutions be entered upon the records of the court and printed in its reports.
Mr. Justice HOOKER responded in behalf of the court as follows:
It is a penalty which nature imposes upon longevity that a man’s requiem cannot be sung by his cotemporaries. Such duty then falls upon the shoulders of a later generation. While we all respect Judge GRAVES for his attainments, his rugged integrity, the faithful discharge of his onerous public duties, and the great value of his services to the State; and while we love him for his kindness of heart and character, we have not enjoyed that intimacy of relation that was enjoyed by his contemporaries.
So when we come to speak of him, the element of close personal intimacy is wanting, and much of what we may say of him is necessarily a matter of history rather than experience.
While all of the members of the court, as at present constituted, have presented causes before him, and all enjoyed a personal acquaintance with him, it is possible that circumstances have placed me a little nearer to him than others. When I came to Michigan in 1866 Judge GRAVES’ successor was holding his first term as judge of the Fifth Circuit in Eaton county, Judge GRAVES having resigned a short time before. At that time the little village of Charlotte was connected with the outside world by wagon road only, and as there was no stage line to Battle Creek, 28 miles distant, it had been the custom of the judge to come overland in a carriage or on horseback with the lawyers who lived at Marshall and Battle Creek, and who rendezvoused at the Junction House or Bellevue. I found the circuit full of stories of Judge GRAVES and his predecessor, Judge ABNER PRATT, and the retinue of lawyers who accompanied them on such occasions. Among the lawyers who rode the circuit in the early days were Isaac E. Crary, EPAPHRODITUS RANSOM, erstwhile Justice of the Supreme Court of those days, and governor of the State, whose picture, with that of Judge PRATT, can be seen upon the wall at our left; John Van Arman, one of the most noted criminal lawyers of his day; W. H. Brown; D. Darwin Hughes; Justin D. Woolley; George Woodruff (Judge GRAVES’ successor as circuit judge); Leonidas D. Dibble; Martin S. Brackett, and others.
They were a jolly crowd, and strong men.
From the county clerk, the late Isaac Edmund Crary Hickok, of Charlotte, for many years an intimate personal friend, I learned much of the methods of Judge GRAVES, who was a most conscientious and painstaking judge, one who had the confidence and regard of his bar and the respect of his entire constituency, and at the same time one who demanded and received decorous conduct on the part of all; having during his incumbency materially raised the standard of the court in that respect. During this period the circuit consisted of the counties of Eaton, Calhoun, Kalamazoo, and Van Buren. This afforded him enough work to do, yet he did not suffer it to fall behind, but in 1866 he laid the office down, noting some indications of failing health.
A year later he was made a judge of this court, succeeding Chief Justice MARTIN, and he sat upon this bench from January, 1868, until December, 1883. His decisions are found in thirty-seven volumes of our reports, from 16 to 52, inclusive. We need not say more of them than to express our appreciation of their great value and constant usefulness in our deliberations. The period covered by them was an important one in the law of this State, and the decisions of the court at that time played a very important part in the establishment of a satisfactory system of jurisprudence and practice.
My real acquaintance with Judge GRAVES began about the year 1889, when I began to go to and from court at Marshall, via Battle Creek, when I usually had several hours between trains, and where I usually met him at the law office of Mechem, Hulbert & Mechem, which he was in the habit of frequenting. He took an active interest in all current legal matters, not only in the circuit, but in the State and Federal Supreme Courts, and enjoyed talking about them, and discussing the law questions that came to the surface. At that time and for that matter for a long time before, he resided upon and managed a farm just outside of Battle Creek, upon a part of which the Sanitarium now stands. With the growth of the city it increased in value and I understand is now a part of the city. His removal to Detroit followed the death of his wife, and from that time his old friends saw comparatively little of him.
The judge was exceptionally well up in matters of pleading and practice. I have the impression that this is partly due to the fact that as justice of the peace, at an early age he found the necessity, as well as the opportunity of studying and thoroughly mastering these branches of the law. Members of his bar, when he was circuit judge, have since told me that he came to the bench well versed in the rules of pleading, and his opinions in this court corroborate the statement. I remember that on one occasion when at loss for an authority upon some unusual question of practice, I asked him if he had ever encountered it. He replied that he had no recollection that the question had ever arisen in any case, but that he had an impression that I would find something upon the subject in Graham’s New York Practice, which I did. His friends have often said to me that he seemed to have a wide knowledge upon all legal subjects which was at command upon an instant’s notice.
The judge lived to a remarkable age. He followed all of his cotemporaries of the early years and his associates upon this bench, to the tomb, and for the last decade was compelled to look to younger men for associates, and to his recollections and his books for companionship. Well may he have felt “like one who treads alone some banquet hall deserted.” Yet I believe him to have been full of contentment, a cheery man, fond of his friends, his books, and of life. He has left us a shining example of integrity, intelligence, industry, perseverance, and virtue, and he lived and died with the respect and esteem of all who knew him.
Mr. Justice GRANT responded further, as follows:
Gentlemen of the Bar Association:
Your tribute to the late Justice GRAVES well and sufficiently portrays his life and character. His learning, ability, and sound common sense as a judge appear in the records and reports of this court from 1868-1883.
My acquaintance with him began in 1871. I met him as a judge upon the bench, and as the lawyers of those days met the judges at the hotel where they were entertained. The opportunities for sociability between the judges and the lawyers in those days were probably superior to those of today. I fancy the judges of those days, and the lawyers as well, would now seriously miss the opportunities afforded for social intercourse when off the bench by mingling and conversing together at the hotels.
I used frequently to meet him when I was a member of the legislature in 1871-4. The first case I argued before him and his associates was Kitson v. Mayor, etc., of Ann Arbor, reported in the 26 Mich. 324. The case was important and naturally my first appearance before the court was accompanied by the customary “court fright.” I think that he and his associates noticed my embarrassment, and I have always remembered most gratefully the kindness exhibited by them all in attempting to remove my fright.
I cannot claim a very intimate acquaintance with Justice GRAVES. When he was living in Battle Creek, after his retirement from the bench, I always called upon him when I went there. After he went to Detroit I always made it a point to call upon him. I found him always the affable, kind-hearted, pleasant, and noble gentleman. He evidently read a great deal, and kept well informed upon current events. An article from his pen now and then in the newspapers on important questions showed that he kept up his interest in the affairs of government and the welfare of the people of his State.
He was the last of the early justices elected under the Constitution of 1850. In fact, aside from the present justices of this court, but two are living, Justices MORSE and CAHILL. One judge under the prior Constitution still lives in Owosso, in his 96th year, Hon. JOSIAH TURNER, who sat upon the bench in 1856-57 and who retired from the circuit bench about the same time that Justice GRAVES retired from the Supreme Bench.
Verily we may say as Justice GRAVES said in this courtroom on April 8, 1890, upon the occasion of the death of his then late associate, Justice CAMPBELL:
“One by one the actors on our public stage pass off, and one by one our dearest and most intimate friends are snatched from us.
“It only remains for the survivors to be as ready to go.”
That he was as ready to go no one who knew him will doubt. He lived long beyond man’s allotted time, and left us for the unknown country, with his record complete, his work done, and himself ready for the harvest. As he then said of Justice CAMPBELL, so we may now say of him:
“We recognize the nobility of his example as a lawyer and judge, and beyond all else the excellence of his manhood in all the relations of life.”
I most heartily concur in placing your memorial upon the record of this court, and printing it in the reports.