Into the company of Jurists Story has now passed, taking place, not only in the immediate history of his country, but in the grander history of civilization. It was a saying of his, often uttered in the confidence of friendship, that a man may be measured by the horizon of his mind, whether it embraces the village, town, county, or state in which he lives, or the whole broad country,—ay, the world itself. In this spirit he lived and wrought, elevating himself above the present, and always finding in jurisprudence an absorbing interest. Only a few days before the illness ending in death, it was suggested to him, that, as he was about to retire from the bench, there were many who would be glad to see him President. He replied at once, spontaneously, and without hesitation, "that the office of President of the United States would not tempt him from his professor's chair and from the law." So spoke the Jurist. As lawyer, judge, professor, he was always Jurist. While administering justice between parties, he sought to extract from their cause the elements of future justice, and to advance the science of the law. Thus his judgments have a value stamped upon them which is not restricted to the occasions when they were pronounced. Like the gold coin of the Republic, they bear the image and superscription of sovereignty, which is recognized wherever they go, even in foreign lands.
Many years ago his judgments in matters of Admiralty and Prize arrested the attention of that famous judge and jurist, Lord Stowell; and Sir James Mackintosh, a name emblazoned by literature and jurisprudence, said of them, that they were "justly admired by all cultivators of the Law of Nations."[166] He has often been cited as authority in Westminster Hall,—an English tribute to a foreign jurist almost unprecedented, as all familiar with English law will know; and the Chief Justice of England made the remarkable declaration, with regard to a point on which Story differed from the Queen's Bench, that his opinion would "at least neutralize the effect of the English decision, and induce any of their courts to consider the question as an open one."[167] In the House of Lords, Lord Campbell characterized him as "one of the greatest ornaments of the United States, who had a greater reputation as a legal writer than any author England could boast since the days of Blackstone";[168] and, in a letter to our departed brother, the same distinguished magistrate said: "I survey with increased astonishment your extensive, minute, exact, and familiar knowledge of English legal writers in every department of the law. A similar testimony to your juridical learning, I make no doubt, would be offered by the lawyers of France and Germany, as well as of America, and we should all concur in placing you at the head of the jurists of the present age."[169] His authority was acknowledged in France and Germany, the classic lands of jurisprudence; nor is it too much to say, that at the moment of his death he enjoyed a renown such as had never before been achieved, during life, by any jurist of the Common Law.
In this recital I state simply facts, without intending to assert presumptuously for our brother any precedence in the scale of eminence. The extent of his fame is a fact. It will not be forgotten, as a proper contrast to his fame, which was not confined to his own country or to England, that the cultivators of the Common Law have hitherto enjoyed little more than an insular reputation, and that even its great master received on the Continent no higher designation than quidam Cocus, "one Coke."
In the Common Law was the spirit of liberty; in that of the Continent the spirit of science. The Common Law has given to the world trial by jury, habeas corpus, parliamentary representation, the rules and orders of debate, and that benign principle which pronounces that its air is too pure for a slave to breathe,—perhaps the five most important political establishments of modern times. From the Continent proceeded the important impulse to the systematic study, arrangement, and development of the law,—also the example of Law Schools and of Codes.
Story was bred in the Common Law; but while admiring its vital principles of freedom, he felt how much it would gain from science, and from other systems of jurisprudence. In his later labors he never forgot this object; and under his hands we behold the development of a study until him little known or regarded,—the science of Comparative Jurisprudence, kindred to those other departments of knowledge which exhibit the relations of the human family, and showing that amidst diversity there is unity.
I need not add that he emulated the law schools of the Continent,—as "ever witness for him" this seat of learning.
On more than one occasion, he urged, with conclusive force, the importance of reducing the unwritten law to the certainty of a code, compiling and bringing into one body fragments now scattered in all directions, through the pages of many thousand volumes.[170] His views on this subject, while differing from those of John Locke and Jeremy Bentham,—both of whom supposed themselves able to clothe a people in a new code, as in fresh garments,—are in substantial harmony with the conclusions now adopted by the jurists of Continental Europe, and not unlike those of an earlier age having the authority of Bacon and Leibnitz, the two greatest intellects ever applied to topics of jurisprudence in modern times.[171]
In this catholic spirit he showed true eminence. He loved the law with a lover's fondness, but not with a lover's blindness. He could not join with those devotees of the Common Law by whom it is entitled "the perfection of reason,"—an anachronism great as the assumed infallibility of the Pope: as if perfection or infallibility existed in this world! He was led, in becoming temper, to contemplate its amendment; and here is revealed the Jurist,—not content with the present, but thoughtful of the future. In a letter published since his death, he refers with sorrow to "what is but too common in our profession,—a disposition to resist innovation, even when it is improvement." It is an elevated mind that, having mastered the subtilties of the law, is willing to reform them.