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Article

Thomas McIntyre Cooley
The Michigan Alumnus 23-29

THOMAS MCINTYRE COOLEY


The Department of Law of the
 University was opened in the fall of 
1859. The wisdom of the step was
 doubted by many, and it cannot be 
said to have had the hearty support
 of the profession of the State. Sys
tematic legal education through the 
instrumentality of formal instruction
 was in its infancy. It was practically 
unknown in the west, for outside of 
New England and New York there
 was at the time no law school of stand
ing and influence. The profession 
generally, the country over, had little
 sympathy with any method of train
ing for the bar excepting the historic
 one of apprenticeship in the law office. 
 The study of the law as a science sep
arate and apart from its study and ap
plication as an art did not appeal to
 the average practitioner. It did not 
seem to him either logical or practicable, and so his influence was against 
the new departure and in favor of the 
old regime. Moreover, at this time 
but little attention had been given to methods in legal instruction. As a 
rule the work of the schools was car
ried on in an irregular way by men
 whose predominant energies were
 given to active and practical duties at 
the bar or upon the bench. It was of
 necessity largely incidental and sec
ondary. It goes without saying that, 
under such conditions, it was possible 
to make out a very good case against 
the law school and in favor of the of
fice apprenticeship, where, as it was 
argued, the student had the constant
 supervision of his preceptor. 


But not withstanding the attitude of 
the profession and methods that are 
now regarded as defective, the Depart
ment of Law of the University enjoyed 
an immediate and continued prosperity. This was due undoubtedly to the ex
ceptional strength of the first Faculty. 
 At the time of their election by the 
Regents, Judge Campbell was a distinguished member of the Supreme
 Bench of the State, Judge Walker, a
 practitioner of marked ability and 
large experience, while the subject of 
this sketch, the third member, then 
the reporter of the decisions of the
 Supreme Court, was generally recog
nized in the State as a profound law
yer of the scholarly type. Each of 
these men brought to the work of in
struction not only great learning, but
 also that which in the teacher is equal
ly important with learning, the force 
of a distinct personality. Each, more-
over, possessed the teaching power in 
a marked degree. With such men
 method was a matter of secondary im
portance. 


With the exception of a single year, 
 Judge Cooley was uninterruptedly 
upon the teaching staff of the Uni
versity from the time of his appoint
ment as professor in the Department
 of Law until his death, a period of
 nearly forty years. He served the 
Department of Law continuously for 
twenty-five years and during the most 
of that time he was its Dean and the 
only resident professor. He was thus
 brought more directly in contact with
 the student body than were his asso
ciates and became in a very large de
gree the molding force in the Depart
ment. "The largest share of the suc
cess of the school," says one of his 
associates upon the Faculty "must be 
attributed to him."


To one of scholarly tastes and hab
its, a university connection offers 
much that is attractive. It affords opportunities for study and 
investigation along chosen lines, and 
the life of the place prompts intellec
tual effort. Judge Cooley was not a 
college-bred man, his early advantages 
having been meager in the extreme, 
 but he was an intensely intellectual 
man, and having early acquired the 
habit of continuous and discriminat
ing reading, he educated himself bet
ter perhaps than he could have been 
educated in the schools. The intellectual life was certainly for him the
 normal life. And so it was that a 
call to the University appealed to him. 
Here he found not only most congen
ial society but also opportunities and 
an environment that stimulated his 
natural taste for literary work. Al-
though continuing to give his chief 
energies to the law, his duties as court
 reporter, law professor and later as a 
judge in the state court of last resort
 compelling him to do so, he at once 
began to extend his studies into the
 allied fields of history and political
 science. From boyhood his interest in 
history, particularly in American his
tory, had been intense, and he now
 devoted to the subject extended and
 systematic study. Though not prob
ably a scientific student of historical 
sources according to the modern
 standard, he read widely and appre
ciatively and became thoroughly fa
miliar with the development of the po
litical institutions of England and
 America. Judge Cooley had the historical sense in a marked degree, and
 while not to be classed as a historian, 
 for he was first and essentially a jur
ist, his attainments in the historical 
field were such that in 1885, after his
 retirement from the Department of
 Law and from the Supreme Bench, 
 he was elected Professor of History
 and Dean of the School of Political
 Science in the Literary Department of 
the University. For several years 
previous to that time he had delivered 
lectures in the School of Political
 Science, where he held the professor-
ship of Constitutional and Adminis
trative Law. In 1886, he was made
 Professor of American History and
 Constitutional Law and Dean of the 
School of Political Science. During
 his period of service, then, he was
 prominently connected with two great
 departments of the University. In
1887, by reason of a call to public du-
ties as a member of the Interstate
 Commerce Commission, Judge Cooley
 was compelled to discontinue regular
 university work, though he remained 
upon the instructing staff and from 
time to time, as long as his health
 would permit, gave brief courses upon
 legal and historical subjects. 


For the work of organization and
 instruction in the new department to
, which he had been called, Judge Cool
ey was well fitted both by tempera
ment and training. He was at this
 time thirty-five years of age, and, al
though a stranger to the technical 
work of higher education, possessed 
scholarly tastes and habits in no or
dinary degree and a mind that had
 been disciplined by years of exhaustive reading and close professional
 study and practice. He had realized, 
 even as a youth, that acquisition sim
ply, while it may be learning, is not 
education, and that it only becomes
 education when coupled with the pow
er to think and act independently; 
that education, in the true sense of the 
term, necessarily implies constructive 
ability. And so we find that during 
his student days, as indeed during his
 entire life, he was continually doing
 things that required initiative and the 
exercise of independent thought and
 judgment. While yet in his teens, he 
began to have definite ideas upon some 
of the public questions of the day, as 
appears from occasional articles from
 his pen in the local press of his native 
town. Nature and self-training gave 
to Judge Cooley the power not only 
to acquire but also to think clearly 
and independently, and thinking clear
ly, he wrote clearly. No small part of 
his remarkable success in life was due
 to his ability early and constantly ex
ercised, to express his ideas in
 compact, clear and forceful English. 
 He was, moreover, as one of his as
sociates upon the bench has said "the 
incarnation of order," and he further
more possessed the rare ability, acquired undoubtedly largely by prac
tice, of being able in the midst of distracting surroundings that would con
fuse and perplex the ordinary man, 
to fix his attention at once and con
tinuously upon the work in hand. 
 "Being once put in motion," said 
Judge Graves in commenting upon 
this trait of his associate, "the engine 
stayed obedient to the engineer and 
neither knew nor heeded any other
 master or any conflicting influence. 
 He had only to touch the lever of 
the will to exclude the apparatus of 
thought from all infringement and all
 disturbance.”

Although Judge Cooley would have
 disclaimed any special fitness for uni
versity work and doubtless felt that
 his lack of formal preparatory train
ing in the schools must prove a serious 
handicap, yet that his equipment
 must have been an admirable one ap
pears upon every page of his prepara
tory and early professional life. At
 the time of his call to the University, 
 in addition to having gained through
 his own unaided efforts and the school
 of experience a general education 
much above that of most men of his
 years who have enjoyed the advan
tages of college training, he had attained a state reputation in the pro
fession. He was not known as a trial
 lawyer, for he never became prominent 
in the nisi prius courts. He lacked the
 aggressive qualities that count for so
 much in courts of first instance. But 
he was known as a practitioner thoroughly grounded in the law, scholar
ly, accurate and painstaking, and as
 having literary ability much above the 
average. These qualities were first 
brought prominently before the pro
fession by his compilation of the laws
 of the State in 1857. Doubtless his 
selection as compiler was due to his
 recognized literary ability and his 
known capacity for rapid and accu
rate work. His labors were completed within the short time fixed by the 
Legislature, nine months, and in such 
a way as to meet with general com
mendation. The work bears the impress of the accomplished lawyer and
 the man of correct literary taste and
 judgment, and it is certainly a testi
monial to its merit that it has served
 to a large extent as the model for 
subsequent compilations. Undoubted
ly the excellence of this work led to
 his appointment in 1858 by the Su
preme Court as the official reporter of
 its decisions, an office that he contin
ued to hold until promoted to a seat 
upon the bench in 1864. It is not too 
much to say that in Mr. Cooley the 
Court and the profession at once recognized the ideal reporter. It was here that his powers of analysis and
 discrimination and his great ability as 
a writer of terse and forceful English 
first became conspicuously apparent. 
His syllabi stand today, and they must
 always stand, as models of compre
hensiveness, accuracy, compactness 
and lucidity. 


Such, then, was the equipment with
, which Judge Cooley entered upon his
 university work. That he was a great 
teacher was at once apparent. He had
 the teaching power to a remarkable
 degree. He was a thorough master of 
his subjects. To his students he always 
gave the best of which he was capa
ble. His instruction was always by
 lecture, and, though not an orator in
 the popular sense, he at once chal
lenged and held the attention of his 
large classes by the absolute simplicity
 and clearness of his exposition. In
 slow and measured utterances, his
 enunciation perfectly distinct, his
 English a model of compactness and
 lucidity; he would so unfold the subject that inattention was impossible. 
 The thin voice was forgotten and personal peculiarities were unnoticed. 
 His hearers were dominated solely by 
the intellectual power of the man. 


A seemingly small event not infre
quently proves to be of vast impor
tance in the life of a man. So it was
 in the life of Judge Cooley, for his 
great work upon Constitutional Lim
itations was probably the result of an 
incident that at the time of its occur
rence made little impression upon the 
minds of those concerned. I give it
 in the words of one of the associates
 of Judge Cooley upon the bench, the 
late Judge Champlin. In the course
 of his memorial remarks before the
 Supreme Court, in speaking of the 
organization of the work in the De
partment of Law of the University, 
 he said: "As the topics for each lec
turer were at first arranged, constitutional law was not in the series. It
 was not added until the second year

. 
 . . . To show what circumstances, 
 small and untoward in themselves, 
 often will turn the trend of our for
tunes and make or unmake us, I will
 relate the circumstances, as I have
 heard them from Judge Cooley, which 
originated, developed and brought out 
Cooley's Constitutional Limitations. 
 He said that in consultation the Fac
ulty determined that this subject 
should be added to the course; that
 in his own mind he had immediately 
felt that Judge Campbell, owing to his 
great knowledge of the law, his experience in the practice of it, and his
 great ability upon the bench, was the 
best qualified to lecture upon that sub
ject, and he so suggested, and that
 Judge Walker was of the same opin
ion. But Judge Campbell absolutely 
declined to take the subject, stating 
that he had his own ideas of consti
tutional law and was aware that they 
differed from those of many eminent
 jurists, and that he absolutely declined
 to lecture upon that subject. Judge 
Cooley then suggested that Professor
 Walker take the subject, but he also 
absolutely declined, and nothing was
 left but for Judge Cooley to take it
 up and lecture upon it. These lec
tures and his study of the subject
 culminated in Cooley's Constitutional 
Limitations, which first appeared in
1868, and established the reputation
 of Judge Cooley as one of the greatest living authors upon one of the 
greatest living subjects of the day. 
 This opportunity was not seized, but 
was thrust upon him, and the per
formance of the task attests at once 
his genius and his ability as a jurist in this almost untrodden field of 
thought." (From the remarks of the late Judge
 John W. Champlin upon the occasion of 
the memorial exercises in honor of Judge
 Cooley in the Supreme Court, 119 Mich.
Iviii.)


It is possible, though not probable, 
that this, the greatest work from the
 pen of Judge Cooley, would have ap
peared, if he had not been compelled, 
 early in his university career, to give
 studious attention to constitutional
 subjects. But it was certainly fortun
ate for him and for jurisprudence that 
the course of events thrust those subjects upon his attention before he had
 become absorbed in other lines of investigation, for he was thus enabled 
to give to them the best years of his 
life. It is now apparent that his mind
 was naturally adapted for the study 
and development of such subjects. 
He was, moreover, well fitted for the
 task by his previous systematic reading in American history and his deep 
sympathy with the constitutional re
straints that the abundant caution of
 the fathers had imposed. That he
 was a firm believer in the fundamental
 doctrines of our institutions, is unmis
takably apparent upon every page of 
the book. 
 At the time of the appearance of 
this book.

Judge Cooley had been 
upon the Supreme Bench of the State
 for three years and a member of the
 Law Faculty for nine years. He had
 written numerous opinions in which 
he had shown himself to be a judge
 of great learning and ability as well 
as a master in the use of concise, 
 forceful and lucid English. He had
 gained extended recognition as a 
teacher of exceptional power. He 
had also contributed occasional arti
cles to legal periodicals and had published a digest of the decisions of the
 State Supreme Court. But he had
 never before attempted a sustained 
work covering an entire field in the
 law. That his first effort should re
sult in what one writer of authority
 calls "the chiefest law book of this 
generation," was due to several causes 
that it may not be inappropriate briefly 
to notice.


In the first place, the field
 was practically a new one. Consider-
able had been written upon American 
constitutional law, but it had been
 chiefly upon the interpretation of the
 national constitution. It was left for
 Judge Cooley to discuss the limita
tions imposed by the national constitu
tion and the constitutions of the states 
upon the legislative power of the 
states and to do it so thoroughly that 
no one has since appeared to ques
tion his title, accorded to him by the
 united opinion of the profession, as 
the great authority upon the subject. 
 Furthermore, the time of publication
 was fortunate, for the profession and 
the people were then intensely inter
ested in constitutional questions. But 
the chief cause for the great success 
of the book lay in its plan and the
 execution of the work. Judge Cooley 
had the ability to discover that a work 
upon constitutional limitations to meet with general recognition must
 deal principally with general and not
 local questions; that to discuss the dif
ferent state constitutions separately 
and in detail would not only result in
 a work of great length but also in one 
that would be neither distinctively 
general nor distinctively local. And
 so he hit upon the plan of omitting de
tails excepting by way of occasional 
reference and of confining the discussion to the great general principles 
that are common to all constitutions. 
 This plan enabled him to develop in
 a large way such general and fundamental subjects as the formation and
 construction of state constitutions, the 
functions of the state as exercised 
through its law-making powers and
 the constitutional protections to the 
person, property and general liberty
 of the citizen. The plan of the work 
certainly shows great foresight and
 wisdom and its execution constructive
 ability of a high order and exception
al powers of generalization. Judge 
Cooley was not a genius, but he pos
sessed an unusually clear and analytical mind and a capacity for contin
uous intellectual work that was ex
traordinary. To the preparation of 
this volume, he devoted years of sys
tematic study and careful thought. 
 That there was a demand for such a 
book was a circumstance that un
doubtedly contributed somewhat to its 
success, but the chief cause for its
 commanding and continued influence 
is to be found in the fact that upon
 every page it bears the mark of mas
terly ability and conscientious and 
thorough work. 


It was always a characteristic with
 Judge Cooley to underrate the value
 of his work. He probably never fully 
appreciated the worth of his services 
to the University, the State and the
 Nation. He was the personification
 of modesty. This characteristic of the 
man was strikingly apparent in his
 very modest idea of the value of his
 work upon Constitutional Limitations. 
I cannot better show this than by quot
ing the words of the late Judge
 Graves, long his associate upon the
 Supreme Bench of the State. They 
were spoken in University Hall a few 
years ago upon the occasion of the
 celebration of Cooley Day. 


"We all know that of the countless 
multitudes incapable of writing a par
ticular book, or indeed any book, there
 are often many who are yet tolerably 
qualified to pass on the merits of an 
important one brought to their atten
tion. You will perceive the drift of 
this allusion when I add that within 
a few weeks after our first meeting 
at Lansing, Judge Cooley honored me 
with an inspection of the manuscript
 of his earliest, and, I think, greatest
 work. The immortal treatise on con
stitutional limitations, but as yet with-
out a title, came under my eye. The
 author had "builded better than he
 knew." His lack of appreciation was 
flagrantly evident. He imagined hav
ing succeeded in getting up a conven
ient hand-book—not quite in line with 
the clerk's assistant, or the attorney's
 companion, but more nearly resem
bling the school book by Mr. Young, 
 and destined, perhaps, to serve as a 
labor-saving contrivance for tutors 
and students, and as a manual for in
ferior state officers; and my sincere
 and well-meant enconium only
 brought a good-natured smile to his 
face, accompanied by pooh-poohs of
 incredulity. I read the manuscript 
with interest and enjoyment, and had
 no question concerning its transcend
ent merit. It seemed too apparent to
 admit of doubt that the most pressing
 want of the epoch, in the line of legal 
literature, was met, and met triumph
antly. I said as much to him, and
 predicted that the ancient notion that 
no elementary law book could be received as authority during the auth
or's lifetime would be now wholly ignored, and that before the lapse of
ten years this book would be cited in 
the best state courts, and moreover 
in the Supreme Court of the Union. 
 He met my enthusiasm with a good-
natured hit at my obtuseness and op
timism. My prediction was, however, 
more than fulfilled, and he lived to
 see it cited everywhere in the nation, 
 and moreover in the British House of 
Lords and in the most respectable of 
the continental tribunals."


Other law books from the pen of 
Judge Cooley appeared from time to
 time, but although of great merit and
 value, as was everything that he did, 
I doubt if they will contribute mater
ially to his permanent fame as a jur
ist. This will, I think, rest mainly 
upon his great ability as an expounder
 of constitutional subjects. His later
 works, while not inferior in any par
ticular, certainly do not reach the high 
standard of distinct superiority that
 characterizes his Constitutional Limi
tations, nor are they of such excel
lence as practically to hold their re
spective fields alone as that work holds
 its field. They must always come into
 competition with the works of other
 authors of at least equal merit. 


The limits of this paper prohibit any 
extended reference to Judge Cooley's
 distinguished services upon the Supreme Bench of the State, to his varied and numerous contributions to the 
periodical literature of his time and 
to his remarkable versatility as shown 
in his great work in connection with 
the practical problems of transportation. Suffice it to say that he was 
the ideal judge, combining in a rare
 way the qualities that go to make up 
the judicial temperament; that by his 
writings and addresses upon public
 questions he impressed himself upon 
the country at large as few men have
 done; that as receiver of a great rail-
road system, he showed administra
tive ability of the highest order, such
 as ordinarily can be expected only af
ter years of preparatory service; and 
that as Chairman of the Interstate 
Commerce Commission, his effectiveness as an organizer and his great
 ability in devising ways and means in 
a field that was practically without 
precedent, were at once and conspic
uously apparent.


A great teacher, a great judge, a 
great legal author, and withal a great
 administrator, —such was Judge Cool
ey. Few men have attained distinc
tion in so many fields. But his success
 was by no means a matter of circum-
stance or chance; it was solidly 
grounded in merit. He was endowed 
by nature with intellectual powers of 
a high order. His mind was active, 
 keen, analytical; it seized at once up-
on the essentials of a problem and proceeded naturally, easily, logically and
 rapidly to a conclusion. His powers
 of generalization were marked. He 
had, moreover, the intellectual grasp 
that insured the consideration of 
questions in a large way and saved 
him from the errors of a narrow and 
partial view. He was also the soul of 
sincerity. But in addition to all these 
qualities, he had tremendous capacity 
for work. He never took a vacation 
and rarely rested from his labors until 
forced to do so by failing health. He
 not only had an enormous capacity 
for work but an intense love for it. 
 He often declared his work to be his
 recreation. His failure to curb what 
in him amounted to a passion
 was, of course, a great mistake. This 
he realized at last, but not until it
 was too late.


But with all his devotion to intel
lectual pursuits, Judge Cooley was the 
ideal citizen, the devoted husband and 
father, and the helpful friend. He al
ways found the time for his public
 duties and social obligations. No 
worthy cause failed to receive from 
him hearty sympathy and support. He
 loved his family and his home, and
 was never so happy as when contrib
uting to the happiness of others. Hun
dreds of students can testify to his 
kindly interest and many to his ma
terial aid. Such a life as was his 
must always serve as an inspiration.


H. B. HUTCHINS, '71

Dean of the Department of Law