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1844— AGE 75
PORTRAIT IN OIL
by John Cranch

1837— AGE 68
by Hiram Powers

REPRINTED IN SOMEWHAT ENLARGED FORM
AT THE REQUEST OF THE FRIENDS AND
RELATIVES OF WILLIAM CRANCH, AND OF
THE FRIENDS OF THE WRITER; WITH THE
COURTEOUS CONSENT OF THE WINSTON
COMPANY, THE PUBLISHERS OF "GREAT
AMERICAN LAWYERS." «

ADDRESS

ON THE

LIFL AND CHARACTER OF
WILLIAM CRANCH

Delivered January 10th, 1907
BY
ALEXANDER B. HAGNLR
at the request of the
Bar Association of the District of Columbia

Washington, D. C.
1913

Cb(o^.345'

WILLIAM CRANCH was born in Weymouth, Mas
sachusetts, on the 17th of July, 1769. He was
the only son of Richard Cranch, a native of
Devonshire, England, who settled in Braintree,
Massachusetts, in 1746, at an early age. The father
was a man of much energy and intelligence and of
versatile attainments, pursuing first the craft of watch
maker and other mechanical occupations, with success.
During the Revolution he was an ardent patriot. He was
appointed the postmaster of the town, a judge of the Court
of Common Pleas, and, in turn, Representative and Sen
ator in the Legislature. Though unassisted by instructors
he became a respectable scholar, and received the honorary
degree of A.M. from Harvard University. His wife was
the sister of Mrs. x\bigail Adams, the wife of President
John Adams, and the marked proficiency of her son in his
early education is ascribed to the careful instruction of his
clever mother. At the age of fifteen William Cranch, the
son, entered the freshman class at Harvard, his first cousin,
John Quincy Adams, two years his senior, being one oi
his classmates. In 1787, in his 19th year, young Cranch
graduated with honors, and later in life was admitted to
the degree of LL.D. by the University.
The characteristics that distinguished the mature man
throughout his long life, were fully foreshadowed in the
interesting journal kept by his cousin, John Quincy Adams,
which has been published by Charles Francis Adams, under
the title "Life in a New England Town." There appears
in the journal as of the date of the 19th of March, 1787,
the following entry :
"William Cranch, of Braintree, was 17 the 17th of last
July. The ties of blood, strengthened by those of the
sincerest friendship, unite me to him in the nearest man
ner. Our sentiments upon most subjects are so perfectly

similar that I could not praise his without being conscious
of expressing an applause of my own. His manners, how
ever, I can pronounce amiable, his spirit nobly independent,
judgment sound and his imagination lively. His thirst
for useful knowledge and his fondness for study is not sur
passed by that of any individual in the class. Happy were
it for me if with a perfect coincidence in his opinions in
general, I could unite the same talents and the same ac
complishments." Truly in this case the child was father to the man; for
throughout his official career there were evinced in a more
perfect degree the untiring love of study and research —
the fearless independence, with sound and impartial judg
ment, accompanied by a kindliness of disposition, so clearly
discerned in the analysis of his character written by his
youthful kinsman.
Immediately after his graduation he entered upon the
study of the law under one of the judges of the Supreme
Court of Massachusetts, and was admitted to the bar in
1790. He commenced the practice in Braintree, attend
ing the courts of the adjoining counties of Massachusetts
and New Hampshire. After the example of the young law
yers of that day he obtained the position of justice of the
peace for Essex County, which furnished his first judicial
experience. In the same year he was employed as legal agent
in the District of Columbia by the celebrated firm of Mor
ris, Greenleaf & Nicholson in the management of their
extensive purchases and sales of lots in what was then
called the Federal City, and in various parts of the country.
This compelled him to move to Washington and engrossed
his attention, until the failure of the great speculation,
which to some extent involved Mr. Cranch in pecuniary
troubles and compelled him to surrender his property and
take the benefit of the insolvent laws. Later in life, al
though he had been legally discharged of the claims
that had been presented against him, he settled them

all with the creditors. This ill-fortune had decided him
to abandon the practice and return to Massachusetts, but
his appointment by the President as one of the Commis
sioners of the District of Columbia caused him to recon
sider his purpose. The first session of Congress that met
in Washington City assembled on the 17th of November.
1800, and continued until the 3d of March, 1801, being
the last Congress occurring during the Presidency of John
Adams. Up to that time there had been no provision by
Congress to establish courts within the District of Co
lumbia, but on the 27th of February, 1801, Congress cre
ated a Circuit Court to consist of a Chief Judge and two
Associate Judges, and William Kilty was nominated as
Chief Judge and James Marshall and William Cranch as
Associates. They received their commissions and the new
court held its first term, as prescribed by the Act, in Alex
andria for the Virginia portion of the District, in April;
1801; and in June, 1801, the first term for the Maryland
part of the District, was held in Washington. Four terms
of the court were subsequently held at Alexandria and
Washington, alternately, before the opening of the new ses
sion of Congress which began on the 7th day of December.
1801, under the Presidency of Mr. Jefferson. On the 13th
of February. 1801, before the establishment of the District
of Columbia courts, Congress had passed an Act "to pro
vide for the more convenient organization of the courts
of the United States," by which the States of the Union
were classified into twenty-two districts arranged in six
circuits (but having no relation to the District of
Columbia), for each of which circuits three judges were
appointed, and for each of the districts one judge. These
appointments were intended to displace all the Circuit and
District judges then holding plea under the United States
Government. After his inauguration, Mr. Jefferson caused
it to be understood that none of the judges appointed under
the Act of the 13th of February would be recognized by the

President as entitled to hold the places that might have
been assigned to them; and on the 9th of March, 1802,
the new Congress passed a law designed effectively to re
peal the Act of 13th of February, 1801, which had created
them, and to reinstate the authority of the judges who had
been in office before the passage of the last named Act.
But the repealing Act made no reference to the juris
diction of the courts of the District of Columbia estab
lished by the Act of the 27th of February, 1801, nor to
the limitation of their tenure, and no justification existed
for attacking the regularity of their commissions, or stig
matizing them with the political nickname of "Midnight
Judges." They continued to hold their terms without
change until 1806, when Chief Judge Kilty, who had been
appointed Chancellor of Maryland, resigned his place, and
without any application on his part, Judge Cranch was ap
pointed by Mr. Jefferson to fill the vacancy. As Judge
Cranch was well known to be a pronounced Federalist, his
appointment by a Republican President was scarcely a
greater surprise to the public generally than it was to the
Judge himself, because of his intimate association with
President John Adams, whose relations with Mr. Jefferson
were personally so unfriendly that he had left the seat of
government on the day before the inauguration of his suc
cessful rival to avoid being present at the ceremony. This
selection tended to show that the extent of Mr. Jefferson's
political antipathy had been exaggerated, and that no such
feeling would control the President where, as in the case
then before him, he recognized the eminent fitness of the
appointee for an important office.
At the time of his promotion Judge Cranch was the re
porter of the Supreme Court of the United States. The
first term of that tribunal had been held in February, 1790,
at the then seat of government in New York City. In
consequence of the almost entire absence of business before
the court, it had adjourned from time to time until August

Term, 1790, when, in the City of Philadelphia, which was
then the seat of government, the court heard argument
in the interesting case of Georgia vs. Brailsford. Its first
session in Washington City was held at its August term,
1801, when John Marshall presided as Chief Justice. The
only publications of the opinions of the court up to that
time were scattered irregularly through the second, third
and fourth volumes edited by Alexander James Dallas,
under the title of "Dallas' Reports of Cases Ruled and
Adjudged by Courts of the United States and Pennsyl
vania Before and Since the Revolution." Volume One con
tains only decisions before the Revolution. The first entry
of any proceeding in the Supreme Court appears on page
399 of 2d Dallas; the previous pages of the book and all
the latter part being taken up with the decisions of the
courts of Pennsylvania. In 3d and 4th Dallas, the reports
of the proceedings of the Supreme Court appear inter
spersed with decisions of the Pennsylvania courts, and of
some of the courts of Delaware and New Hampshire. The
minutes of the Clerk's Office of the Supreme Court contain
no entry of the appointment of Mr. Dallas as reporter,
and he appears to have acted as such only with the acqui
escence of the court. On the retirement of Mr. Dallas,
this work was taken up by Judge Cranch, who, it is stated
by Mr. Carson in his "History of the Supreme Count," was
the first regularly appointed reporter, although no such
entry appears in the minutes of the court. In the preface
to 1st Cranch, the new reporter adverted to the difficulties
he had experienced in obtaining accurate notes of the ar
guments and sometimes of the decisions themselves, but
refers with satisfaction, as if to a novelty in prospective,
to the practice then about to be introduced by the judges
of giving opinions in writing, which he quite reasonably
suggested would afford great relief to the reporter; and
with characteristic modesty he promised to publish future
volumes if his presentation of the present one should be

8
considered "adequate to the task." The notes of the nine
volumes published by Judge Cranch were taken by himself
in shorthand. Those volumes embrace the causes disposed
of up to February Term, 1816, and contain a large propor
tion of the most important opinions delivered by Chief
Justice Marshall and his colleagues during that formative
period in which the court was exploring to their source
the great fundamental principles of the Constitution, after
argument by the most distinguished advocates who have
ever appeared before it; and expounding its views of the
hitherto unsuspected amplitude of the constitutional powers
and their just limitations. The reporter's work as shown
in these volumes must justly be considered as "adequate
to the task" he had so modestly assumed.
In the meantime the business of the courts of the Dis
trict of Columbia had steadily increased in quantity and im
portance. Jurisdiction of the admiralty and other duties
of the District courts, and in appeals from the decisions
of the Commissioner of Patents, had been added by statute
to the duties of the Chief Judge.
These and other increasing engagements were doubt
less influential in deciding him to discontinue his connec
tion with the reports of the Supreme Court. He must
then also have contemplated the preparation of the reports
of his own circuit court, which, as he stated in his preface,
he believed would be of peculiar importance not only to the
citizens of the District, but to Congress, and to all the offi
cials of the Government and to all citizens of the United
States. These reports comprehended the period from 1801
to 1841. The six volumes were published in 1852, and
contain the reports of more than two thousand one hundred
cases out of the much larger number that had been decided
by the court. There were difficulties peculiar to this
judicial work, which must have rendered it exceptionally
perplexing to a lawyer fresh from Massachusetts;
as so many of the laws and rules of procedure and

practice to which he was accustomed differed from those
in force in Virginia and Maryland, perhaps in a more
marked degree than they did from those of any other
States. One assuming a judicial office in the District of
Columbia encountered further embarrassment from the fact
that the District embraced two counties, one in Maryland
and the other in Virginia, and the act establishing the
court provided that the laws of the State to which either
county had belonged as they existed at the time of the
cession, should remain in force in such county. It resulted
that the court was often obliged to announce decisions
in one county at variance with those it was compelled
to make in the other.
For example, in 1830, at the session of the court in
Alexandria, a white man was convicted of murder. In
passing sentence the Chief Judge in his usual forcible style
in characterizing the brutality and malignity of the crime,
said to the prisoner :
"If you had not premeditated vengeance — if you had not
taken advantage of the situation of your adversary — if you
had not deluded him into confidence by the assurance that
you had no deadly weapon — if you had not provoked him
to the combat that you might have a pretext for executing
the malicious suggestions of your heart — if, when he had
fallen, you had not stamped upon his breast to insure your
fatal purpose, it is possible that the humanity of the jury
might have saved you from your awful fate. But your
guilt has been too manifest for even humanity to plead
your cause." The punishment of death was but just retri
bution for such a crime.
But immediately afterwards the Chief Judge was called
upon to pass sentence upon a negro convicted of house
breaking and robbery, and he was obliged to condemn
the prisoner to be hung under the Virginia statute in force
at the date of the session, which retained the ancient
English punishment for that crime, though it had long

10

been abolished as to the Maryland portion of the Dis
trict. The contrast between the atrocity of such a murder
as was described in the first case, with the theft of a
few dollars, emphasized the injustice of awarding the same
punishment in each case. After pronouncing the sentence
of death in the latter case the Chief Judge made a presen
tation of the facts to the President, which resulted in, a
mitigation of the sentence.
The existence of slavery throughout the District of Co
lumbia was another circumstance calculated to embarrass
the Judge, who found himself for the first time in a com
munity where it was so important an interest. If%one
might infer his private opinions from his previous inti
mate association with his near kinsmen and friends, whose
aversion to the system was well known, one might well
conclude Judge Cranch would, at some time, have disclosed
some bias in his rulings indicating an aversion to the sys
tem; but throughout his entire administration qf the law
nothing appeared in his judicial demeanor or decisions to
indicate any feeling for or against the slave or the master ;
and this judicial balance was held by him with even hand
for more than half a century before all men in a com
munity, some of whose members might well have been ex
cused for watching his actions in the matter with something
of anxiety or even of distrust, until they had learned to
understand him well.
Among these numerous reported decisions made during
a period of more than fifty years, by a court which con
sisted practically of two different jurisdictions administer
ing differing laws, in part under a worn-out system, and
in part under new provisions not yet fully adjusted to the
existing conditions, one would be prepared to find some
rulings apparently inconsistent with decisions made else
where; and among the multitude of cases that presented
themselves with kaleidoscopic variety were many worthy
of notice because of their novelty and public interest.

11

Within the limits allowed to this essay a few of them may
be noticed briefly as bearing upon the methods of the
Chief Judge in administering his office.
For several years Washington City had been pestered
by the publications of a Mrs. Anna Royall, which con
tained defamatory statements abusing many citizens hold
ing official positions in the city. In 1829 the public patience
seems to have become exhausted, and the publisher was
indicted as a common slanderer and brawler, and as "a
common scold," and on this latter charge the jury ren
dered a verdict of guilty. On motions in arrest and for
a n#w trial, the defendant's counsel insisted, among other
objections, that the only punishment known to the com
mon law of England for a common scold was the ducking
stool, which was obsolete in England and in Maryland,
and was therefore obsolete in the District of Columbia;
and if that punishment were still in existence in the District
it must beheld to be "barbarous and unusual" and as such
forbidden in words by the Bill of Rights of Maryland,
and hence the traverser could not be punished at all. Chief
Judge Cranch, in an interesting opinion full of the ancient
learning, showed that the ducking stool was not the only
admissible punishment at the common law for a common
scold, nor was its use by that law confined to the pun
ishment of women, but was applicable to men in certain
cases; and that although the punishment of ducking may
have become obsolete, yet the offense of being a common
scold was not obsolete, but remained a common nuisance,
and as such was punishable by fine and imprisonment,
like other misdemeanors. The defendant was therefore sen
tenced to pay a fine, to give security for her good be
havior for one year, and to stand committed until the fine
and costs were paid. The defendant's counsel, to sustain
his contention that the ducking stool was the only punish
ment for a common scold, had cited a decision in 6th Mod.

12

213, where the court had been asked to enlarge the
time for the punishment of ducking a woman convicted of
the offence, because of the alleged illness of the prisoner.
Lord Chief Justice Holt agreed to "enlarge the time to
the next term to see how the woman would behave her
self in the meantime," but added "the ducking would
rather harden than cure her, and if she was once ducked
she would scold all the days of her life." This rather
unchivalrous attempt at judicial humor seems to have
been taken rather too literally by our matter-of-fact Chief
Judge. Declining to recognize any legal significance in
the joke, he remarks : "The argument drawn from the
playful expressions of Lord Chief Justice Holt does not
warrant so grave a conclusion. They were intended probably
only to excite surprise by their exaggeration, for surprise
is sometimes an approximation to wit." If Lord Campbell's
statement in his biography of Lord Holt is correct as to the
matrimonial infelicities of the Chief Justice and his wife —
that "they lived together on the worst possible terms,"
Holt's skeptical suggestion as to the impossibility of ever
curing a common scold may have been inspired by personal
experience with a lady of that propensity, rather than
by any disposition on his part to be witty by "exciting
surprise." At November term, 1825, in Alexandria, John Clark, a
slave, indicted for murder, but found guilty of man
slaughter, was sentenced by the court to be burnt in the
hand and whipped with ten stripes (U. S. vs. Clark, 2
Cranch, C. C, 620), which was the punishment under the
Act of Virginia. And as recently as May Term, 1835, in
Alexandria, "on indictment for murder, changed to one for
manslaughter," the prisoner, a slave, who was found guilty,
received a similar sentence (4th Cranch, C. C, 540; U. S.
vs. Fry). In that jurisdiction the sentence of branding
was inflicted by burning the prisoner on the brawn of his

13

left hand with the handle of the great key of the jail, after
it had been heated by the jailer.
In 5th Cranch, C. C, 71, Brent vs. Hagner, Third
Auditor, it was decided that papers filed in the office of the
proper accounting officer of the Treasury, as vouchers or
documents to justify the settlement of public accounts, are
not liable to be taken from the public officer by replevin.
In 4th Cranch, C. C, 174, one Baldwin was sued by
Woodside for medical services rendered. The principal de
fence was that the plaintiff had no right to recover be
cause he had not previously obtained a license to practice
medicine from the medical society of the District. The plain
tiff, a layman, who argued his own cause, contended that the
provision of the charter forbidding one to practice without
license under penalty to be recovered by indictment, etc.,
was not a prohibition to practice, especially as the society
had neglected to appoint a board of examiners authorized
to issue such license; and the court took this view oi the
matter; this ruling has since been followed in subsequent
cases. 5th Cranch, C. C, 62, U. S. vs. Williams.
In this case the defendant had also insisted there could
be no recovery, because of bad practice by the self-educated
practitioner in administering an excessive dose of calomel,
liable to destroy life. The plaintiff in reply called atten
tion to the fact that the defendant, so far from having
been poisoned by the medicine, was now alive and present
in court, robustly resisting payment for the services that
had resulted in saving his life; an argument which seems
to have prevailed, as a judgment was given for the
plaintiff. A number of novel causes came before the court because
of its location at the seat of government, affecting the
rights and liabilities of foreign ministers. Criminal cases
of an interesting character continually presented them
selves, a few of which may be noticed — as the trial of a

14

lunatic named Lawrence for an attempt to shoot President
Jackson — of an inebriated fellow for an assault upon John
Quincy Adams while a member of the House of Repre
sentatives — an indictment of Governor Samuel Houston
for an assault upon a member of the House, in which the
Chief Judge overruled the defence that as Houston had
already been punished by the House, as for a contempt,
he was not amenable to further punishment, and imposed
a fine of five hundred dollars and costs — the case against
the White brothers who had set fire to the Treasury to
destroy incriminating records against their employers stored
in the building — the cases against Watkins, one of the
auditors of the Treasury, for fraud and embezzlement,
which were contested with great vigor and learning by
Walter Jones and Richard S. Coxe, and prosecuted to con
viction with equal ability by Thomas Swann and Francis
S. Key; the report oi the proceedings in that case, con
sisting chiefly of the elaborate opinions of the Chief Judge,
extended over one hundred and fifty pages in 3 Cranch,
C. C, 441. In these, as in most of the important causes
before the court, the burden of the trials rested upon the
Chief Judge.
The first steps in any court of justice to arrest the prog
ress of Burr's conspiracy were taken in the Circuit Court
of the District of Columbia on the 23rd of January, 1807,
when a motion was made by the distinguished Walter
Jones, the District Attorney, on behalf of the United States,
that the court should issue a bench warrant to arrest Eric
Bollman and Samuel Swartout upon the charge of treason.
These persons, who had been apprehended in New Orleans
upon a military order by General Wilkinson, in command
in that district, without process of court, and had been
brought from that city under military guard, arrived in
Washington on the previous day and were then imprisoned
in the Marine Barracks. The motion was founded upon

15

an affidavit of General Wilkinson made in New Orleans,
and was accompanied by a printed copy of a special mes
sage which had been sent to Congress by President Jeffer
son on the previous day. Mr. Jones informed the court
he made the motion in obedience to instructions from the
President, whose wish it was that the accused should be
delivered to the civil authority; and this assertion was in
accord with the statement of the President in his message
to Congress. The motion was adjourned until the next
day, when a petition was filed in behalf of the prisoners
for a writ of habeas corpus alleging their illegal detention
without process of law or information of the cause of their
arrest. After argument the court (Cranch, C. J., dissent
ing), ordered the bench warrant to issue, returnable on
the 26th instant. On that day the prisoners being present
in court, the District Attorney moved they should be com
mitted to trial upon the charge o'f treason, without bail.
Mr. Rodney, the Attorney-General, said he lamented the
unfortunate situation of Mr. Bollman, the intrepid rescuer
of Lafayette, but insisted the court should not shut its
eyes to the Executive communication, and ought not to
yield to the application of the accused to allow them to be
heard by counsel upon the motion.
The court, however, decided to hear argument, and
Messrs. C. Lee and Francis S. Key were heard against the
motion; and the counsel of the United States, in its sup
port; after which the court (Cranch, C. J., dissenting),
ordered the prisoners to be committed for the crime of
treason, without bail.
The judges delivered separate opinions at considerable
length, all of which are given at large in the report (1st
Cranch, C. C, 379. U. S. vs. Bollman and Swartout).
Cranch, C. J., in his dissenting opinion said, the previous
doubts which had caused him to dissent from the opinions of
his brethren arose upon the question whether the charges
and facts then before them showed such probable cause as

16

would justify a commitment upon a charge of treason, and
that these doubts had been much confirmed upon further
deliberation and examination of the evidence and the law.
He then declared his opinion that "there were no facts be
fore the court, supported by oath or affidavit, showing prob
able cause for the belief that treason had been committed by
the persons charged" ; that the facts which must be stated on
oath should be such as would "induce a reasonable proba
bility that all the acts had been done which constitute the
offense charged; that Executive communications not on
oath or affirmation could not under the words of the Con
stitution, be received as sufficient evidence in a court of
justice to charge a man with treason, much less to commit
him for trial." Continuing, he said : "In times like these,
when the public mind is agitated and war and rumors of
wars, plots, conspiracies and treasons excite alarm, it is the
duty of the court to be peculiarly watchful lest the public
feeling should reach the seat of justice. The Constitution
was made for times of commotion. In the calm of peace
and prosperity there is seldom great injustice. Dangerous
precedents occur in dangerous times. It then becomes the
duty of the judiciary calmly to poise the scales of justice,
unmoved by the arm of power, undisturbed by the clamor
of the multitude. Whenever an application is made to us
in our judicial character we are bound not only by the na
ture of our office but by our solemn oaths, to administer
justice according to the laws and Constitution of the United
States. * * * When, therefore, the Constitution declares
that 'the right of the people to be secure in their persons
against unreasonable seizures shall not be violated' and that
'no warrants shall issue but upon probable cause, supported
by oath or affirmation,' this Court is as much bound as any
individual magistrate to obey its command."
In the opinions of the Associate Judges it was contended
that the weight of the whole testimony offered by the Gov
ernment, supported by the communication of the President

17

made in his official capacity (which, though not sworn to,
they insisted must be considered as made under his oath of
office), constituted sufficient probable cause, within the
meaning of the Constitution for holding the prisoners for
trial, which was the extent of the application at that time
before the court; and by the vote of the majority of the
court the prisoners were thereupon remanded into custody.
On the 2d of February they applied to the Supreme Court
of the United States for a writ of habeas corpus alleging
they were unlawfully imprisoned, and praying to have the
legality of their detention inquired oi by the court.
On behalf of the United States it was objected that the
Supreme Court was without jurisdiction generally to issue
a writ of habeas corpus, and especially it could have no such
power in the present case, after •the commitment by the
courts of the District of Columbia. After full argument,
Chief Justice Marshall delivered the opinion of the court,
which held that under the 14th section of the Judiciary Act,
it possessed the power to issue a writ oi habeas corpus to
examine into the cause of the commitment by the Circuit
Court of the District of Columbia; for, as the purpose of
the writ was to review the decision of the Circuit Court,
by which a citizen has been committed to jail, it was clearly
appellate in its nature. The Chief Justice and Justices
Washington, Johnson and Livingston sat at the hearing of
this motion; Johnson dissenting. The writ issued accord
ingly, and the prisoners having been produced in court,
their counsel moved their discharge, or at least that they
should be admitted to bail. Upon this motion, also, the
Supreme Court heard very full argument, after which Chief
Justice Marshall announced with admirable clearness as the
opinion of the court the principles limiting and defining the
law of treason under our Constitution, as governing the
case at bar.
1st. That to constitute treason, war must be actually

18

levied, and that the mere enlistment of men, not assembled,
is not a levying of war.
2d. That if a body of men be assembled to effect by force
a treasonable purpose, all who are leagued in the conspiracy
and perform any part, however minute and remote from the
scene of action, are traitors.
3d. That a mere conspiracy to subvert the government by
force, although punishable as a high misdemeanor, is not
treason; and
4th. That if the offense is committed on land and not on
the high seas, the offender must be tried in the court having
jurisdiction over the territory where the offense was com
mitted ; and hence it resulted that as no part oi the crime
charged in the present case was alleged to have been com
mitted within the District of Columbia, the prisoners could
not be tried by the courts here, even if they had made them
selves otherwise amenable to punishment within the prin
ciples then announced.
These maxims, as they may now well be called, were
enforced shortly afterwards by Chief Justice Marshall in his
rulings at the trial of Burr for treason in Richmond, which
resulted in his acquittal. Although Judge Cranch had not
been required by the nature of the questions before him in
the Bollman case to define specially all the limitations of
the law of treason, yet the utterances in his dissenting
opinion were entirely in harmony with. the subsequent rul
ings oi the Supreme Court in that case, on the application
for the habeas corpus and on the motion for the discharge
of the accused.
A letter written by Judge Cranch to his father immedi
ately after he had read bis dissenting opinion and before the
Supreme Court had taken charge of either branch of the
cases, shows the great strain under which he had been act
ing since he had been engaged in the hearing, and his inde
pendence and firmness in adhering to his convictions. It
is not easy to comprehend in these times the existence of

19

such extraordinary excitement and anxiety in the public
mind as to the probable rulings of the highest court, as is
indicated in some of these statements of Judge Cranch.
He wrote : "In opposition to the arm of Executive power,
supported by the popular clamor * * * my conduct has
been the result of my own judgment only, unaided by a
single conference except with my brother judges. In my
own mind I had no doubt whatever that the Constitution did
not justify a commitment upon such evidence. * * *
Never 'before has this country, since the Revolution, wit
nessed so gross a violation of personal liberty as to seize
a man without any warrant of lawful authority whatever,
send him two thousand miles by water for his trial, out
of the district or State in which the crime was committed,
and then for the first time to apply for a warrant to arrest
him founded on written affidavits. So anxious was the
President to have this prosecution commenced, or to use
his own language, to deliver them to the civil authority, that
he came to the Capitol on the day of their arrival and with
his own hand delivered to the District Attorney, Mr. Jones,
the affidavit of General Wilkinson, and instructed the attor
ney to demand of the court a warrant for the arrest of
Bollman and Swartout on the charge of treason. When
this circumstance is considered, and the attempt made in
the Legislature to suspend the privilege oi habeas corpus
on the very day on which the motion was made for a
warrant against Bollman and Swartout, * * * you
may form some idea of the anxiety which has attended my
dissent from the majority of the court. But having no
doubt of my duty, I have never thought of shrinking from
my responsibility."
In May, 1837, questions of much importance and nov
elty came before the Circuit Court of the District of
Columbia on the application in U. S. ex rel. Stockton and
Stokes vs. Amos Kendall, for a writ of mandamus to be
directed to him as Postmaster-General, commanding him

20
to enter a credit for a large amount in favor of the relators
in compliance with the award of the Solicitor of the Treas
ury, made under the direction of an Act of Congress. (5
Cranch, C. C, 163. ) On the service of a rule to show cause,
the Postmaster-General made no reply except to address a
letter to the Chief Judge, denying that a court of the Dis^
trict, established entirely for local purposes, could possess
jurisdiction to inquire as to the official conduct of the Presi
dent and heads of the departments, who are answerable by
impeachment for any neglect of their duty.
Accompanying this letter was one from Attorney-General
Butler, reiterating the same objections and referring the
Judge to 7th Cranch, 504, Mclntyre vs. Wood, and 6th
Wheaton, 598, McClurg vs. Sullivan, in which, it was
alleged, the Supreme Court had decided that the Circuit
Courts olf the United States had no power to issue a man
damus against an officer of the United States; and these
rulings, he submitted, were conclusive against the relief
sought, as the Circuit Court of the District of Columbia
could possess no greater authority in this respect than the
ordinary Circuit Courts of the United States.
In absence of regular pleadings the court proceeded to
hear argument in behalf of the relators; and decided that
the Court of the District of Columbia, besides all the juris
diction of the ordinary Circuit Courts, had been clothed by
the laws oi its creation with all the jurisdiction of the
State courts of Maryland and Virginia; that by the laws
oi Maryland its highest law courts had jurisdiction to issue
the writ of mandamus according to the course of the com
mon law in February, 1801, when the District Court was
constituted, and that if the other requirements of law in
such a cause were complied with, the writ should issue
against the Postmaster-General ; that these prerequisites to
the exercise of jurisdiction did exist in the pending case,
as the duty required of the Postmaster-General by the Act
of Congress was purely ministerial in its character and

21

involved no question of official discretion in the legal
acceptation of the term, and as the right of the plaintiffs to
the relief claimed was clear and could be enforced in no
other effective manner, there existed no legal justification
for denying the application.
The court thereupon awarded the mandamus nisi, re
quiring cause to be shown at a time limited why the per
emptory writ should not issue.
The Postmaster-General then concluded to appear by
counsel, and presented in his own behalf a carefully pre
pared answer, in large degree occupied with a criticism of
the opinion of the Supreme Court in Marbury vs. Madison,
which had been greatly relied on by the relators and by the
court. He embodied in the answer a letter from Mr. Jef
ferson, written, while President, during the trial oi Aaron
Burr, to George Hay, the United States District Attorney,
who was then conducting the prosecution in Richmond.
These extracts are oi interest as showing how deep an im
pression the unanswerable logic oi Marshall in that opinion
had made on the mind of the President, and how important
it seemed to him to impair its force.
The letter bears date "Washington, June 2, 1807.
"To George Hay, Esq.
"Dear Sir: While Burr's case is depending before the
court, I will trouble you from time to time with what oc
curs to me. I observe that the case of Marbury vs. Madi
son has been cited and I think it material to stop at the
threshold the citing that case as authority and to have it
denied to be law."
Proceeding to discuss what he considers are the errors
of that decision, he concluded as follows :
"I have long wished for a proper occasion to have this
gratuitous opinion in Madison vs. Marbury brought before
the public and denounced as not law ; and I think the present

22

occasion a fortunate one because it occupies such a place
in the public attention. I should be glad, therefore, if in
noticing that case you could take occasion to express the
determination of the Executive that the doctrines of that
case were given extra- judicially and against law and that
their reverse will be the rule oi action with the Executive.
If it is your own also, you will of course give to the argu
ments such a development as a case incidental only might
render proper.
"I salute you with friendship and respect.
Thomas Jefferson."
(See 5th Cranch, C. C. R., 192.)
The Postmaster-General also quoted from letters of Mr.
Jefferson to others of his friends, which he said "are suffi
cient to show that the doctrine laid down by the Chief Jus
tice in the case of Marbury vs. Madison never was recog
nized as law by the Executive authority."
Accompanying this letter was another from Attorney-
General Butler, presenting an able argument controverting
the entire ground assumed by the Government, and con
taining a similar attack upon the opinion of Chief Justice
Marshall in Marbury vs. Madison.
The motion to quash the return and award the peremp
tory writ was argued for five days by Messrs. R. S. Coxe
and Reverdy Johnson for the motion and Mr. Key for
the Postmaster-General. The court, speaking by Cranch,
C. J., granted the motion and awarded the peremptory
writ, from which decision a writ of error was sued out.
The case was argued in the Supreme Court by the same
counsel at the January term, 1838, and the judgment be
low was affirmed, Chief Justice Taney and Justices Catron
and Barbour dissenting. The opinion of the court was
delivered by Justice Thompson and was concurred in by
Justices Story, McLean, Baldwin, Wayne and McKinley.
The two opinions delivered by Judge Cranch in the dif
ferent stages of the cause covered seventy pages oi the

23

report and are wonderfully convincing as to every point
raised by the counsel for the United States in the Circuit
Court and in the Supreme Court; and a comparison of
those with the able opinions of the Supreme Court will
show that Justice Thompson, speaking for the Supreme
Court, has but reinforced the arguments presented by the
Circuit Court.
The great importance of this decision can be estimated
when we recall that there had previously been entertained
by the profession the general belief that the announcement
in 7th Cranch, 504, and in 6th Wheaton, 598, that no
Circuit Court of the United States possessed the jurisdiction
to issue a mandamus to any government official, necessarily
denied all such authority to the Circuit Court of the Dis
trict of Columbia; as had been insisted by the Attorney-
General, with what appeared to be irrefragable force, as
closing all controversy on the subject. To Chief Judge
Cranch is due the credit of first demonstrating the error of
that conclusion. If this error had not been corrected, there
would have ensued a great failure oi justice in the scores oi
cases in which, since the decision, the writ has been issued
by the courts of the District against government officials,
to the great benefit of the public. The defences occasion
ally relied on in disputing the right, upon one or another
of the grounds overruled in the United States vs. Kendall,
have now completely disappeared, since the Supreme Court
has g'iven a quietus to all such pretenses in the opinion in
102 U. S., United States vs. Schurz, Secretary of the In
terior, page 392, rendered after further full examination;
which concludes with this sentence :
"We are oi the opinion that the authority to issue writs
of mandamus in cases in which the parties are by the
common law entitled to the writ, is vested in the Supreme
Court of the District of Columbia."
That portion of Judge Cranch's opinion which treats of
the correct rules governing the issue and conduct of the

24
writ forms an exceptionally satisfactory treatise on the
history of what the old lawyers were accustomed to char
acterize as "one of the flowers of the law."
The Chief Judge seems to have had a due proportion of
black sheep in his flock of candidates for the woolsack,
and to have known how to keep them in order. His state
ment of the proper duty of the attorney to his client is thus
expressed in ex parte Gibberson, 4th Cranch, C. C, 506:
"Fidelity to his client is one of the first requisites in
the character oi an honorable practitioner at the bar. That
fidelity requires that he should maintain all the just rights
of his client, but it extends no further. It will not justify
any attempt to evade the fair operation of the law or to
impede the administration of justice. A fault on either
side of the true line of honorable professional conduct will
equally meet with decided reprehension of the Court."
The many differences between the laws and customs that
prevailed during the larger portion of Judge Cranch's judi
cial service, and those now in force here, would almost
cause one to suppose he had lived in mediaeval times.
Let me allude to some of them.
It was not until a comparatively recent period, with
in the memory of many now present, that it dawned upon
legislators that the most cruel as well as senseless use the
law could make oi an unfortunate debtor, not charged
with fraud, was to imprison him, and thus most effectually
prevent him from earning money to pay his creditors.
The entire system, under the conditions above stated, was
an absurdity, but the minutes of the court show a sin
gular feature of it that was brought to the Chief Judge
during a very inclement winter, by the complaint of the
marshal that he had no means of heating the cells of the
poor debtors, and no funds with which to buy fuel to keep
them from freezing; while the creditors who had com
mitted them to jail insisted they had done all the law re
quired when they had supplied them with food, and were

25

under no obligation to warm their quarters. While the
marshal and the creditors were discussing the rights, or
more properly speaking, the wrongs, of the situation, the
court (perhaps recalling the lesson of the famous print
of Hogarth's, which shows the poor woman breathing her
last, while the rival doctors are bickering over the correct
ness oi the diagnosis) peremptorily ordered the marshal to
buy the requisite fuel ; and adjourned the further considera
tion of the dispute until the thermometer should rise suffi
ciently to reduce the question to what the newspapers of
to-day would call one of the academic variety.
The present occupants of the fine buildings on the squares
between 3d and 15th Streets and G Street and Pennsyl
vania Avenue would perhaps be surprised to learn that
under the discretion given to the judges to designate what
should be recognized as "prison bounds" outside the jail
walls, for the comfort of .the poor debtors, the territory
comprehending the squares above described constituted the
last legal Alsatia designated by the court, before the aboli
tion of imprisonment for debt, in which the prisoners
might walk under prescribed conditions as to time and
deportment ; like Sir Walter's semi-outlaws in the Fortunes
of Nigel.
As long as the licitness of the lottery traffic was recog
nized, many cases growing out of it, came before the
courts, which were generally argued by distinguished coun
sel; for they often involved curious questions and large
amounts, and were decided on careful opinions written by
the Chief Judge. A number of them were carried to the
Supreme Court, in most of which Chief Justice Marshall
wrote the opinions.
Upon the strict understanding that the matter is not to
be elsewhere repeated, it may here be admitted that a share
of the alleged profit of the lotteries was applied towards the
construction of the old City Hall in which we are now hold
ing our court, without any complaint that it was "tainted."

26

The arrangement of the prices of liquors for taverns
and ordinaries was also made a part of the duty of the
courts, and the elaborate scale of rates, appearing on the
minutes, returned regularly to the clerk, evidences they
were not above performing small duties as well as great.
The apprehension that this duty was not exactly a dignified
function for courts of law, may have been allayed by adopt
ing the fine old maxim of the judicious Hooker, that as
nothing is too powerful to be beyond the control of the law,
nothing should be too insignificant to be beneath its notice.
The claim of exculpation from punishment under plea
of the benefit of clergy, cunningly contrived by the more
powerful people to shelter themselves and their retainers
and employees from the punishment that awaited the mass
of the citizens long acquiesced in and enlarged by the in
difference or venality of courts, became so strengthened
that it seemed at last well-nigh immovable from the law
in England. Even our Act of 1790, designed as it was
hoped, to correct errors and follies of the existing laws,
only abolished the plea of the benefit of clergy on convic
tion for crimes punishable by death. In Maryland, the
old privilege under the plea remained in full force at the
time oi the cession of the District of Columbia, and was
adopted here, with no other qualification than that effected
by the Act of 1790.
From the earliest session oi the courts of the District
the plea was often interposed, generally in cases of lar
ceny and kindred offences, and was recognized for many
years, until it was allowed to fade out rather than be ex
cised from the body of the District law, notwithstanding
its notorious abuse; which should have caused its abolition
centuries before.
A striking instance of the trickery to which it gave rise
is preserved in the Reports of Chief Justice Kelying, p. 51,
decided at April term, 1665. The following sentence taken
from the appropriate black-letter report must convince the

27

reader what a loss justice had gained, when the folly totally
disappeared from the courts.
"At the same assizes at Winchester, the clerk appointed
by the Bishop to give clergy to the prisoners, being to give
it to an old thief, I directed him to deal clearly with me,
and not to say legit, in case he could not read ; and there
upon he delivered the Book to him, and I perceived the
prisoner never look'd upon the Book at all, and yet the
Bishop's Clerk, upon the demand of legit or non legit, an
swered 'legit' ; and thereupon I wished him to consider, and
told him I doubted he was mistaken, and bid the Clerk of
the Assizes ask him again, legit or non legit, and he an
swered again something angrily, 'legit.' Then I bid the
Clerk of the Assizes not to record it. And I told the Par
son he was not the Judge whether he read or no, but a
Ministerial Officer to make a true Report to the Court.
And so I caused the Prisoner to be brought near, and de
livered him the Book, and then the Prisoner confessed he
could not read; whereupon I told the Parson he had re
proached his function*, and unpreach'd more that day than
he could preach up again in many daies; and because it
was his personal offense and misdemeanor, I fined hirn 5
Marks, and did not fine the Bishop, as in case he had
failed to provide an Ordinary."
Occupied as he constantly was with his official duties,
the Chief Judge yet found time, as all men do who are
really busy, to attend to other employments.
He was connected at different periods, with almost every
public enterprise that could benefit the city or his neigh
bors. He was elected the first vice-president of the Wash
ington Monument Society; trustee of the Colonization So
ciety; vice-president of the Columbia Institute, and was
connected with many other similar societies. In connec
tion with Mr. Carroll, Clerk of the Supreme Court, he
aided in the opening of the first law school in the city.
He frequently published in the newspapers articles of public

28

interest ; and an address he delivered in the Capitol on the
life, character and writings of President John Adams pos
sessed much merit.
Many of his charges to the grand jury were worthy of
preservation in more permanent form than in the newspaper
files where some have been found.
In 1820, the country was appalled by the intelligence that
Stephen Decatur, perhaps the most distinguished of our
naval heroes had fallen in a duel at the hands of Commo
dore Barron. At the next term of the Circuit Court in
Washington City, the Chief Justice alluded to this sad
occurrence in these words :
"Since the last session of a grand jury for the county
we have to deplore the recurrence of another case of what
the world calls honorable satisfaction, but which in con
templation of law, both human and Divine, is murder. It
is to be regretted that the lamented and illustrious indi
vidual whose virtues and whose heroism were the pride of
his country, should not have added one more laurel to his
brow by declining the fatal contest.
"However fairly and honorably a duel may be fought,
yet, if death ensue, it is, in the eye of the law, murder,
both in principals and accessories, and a challenge to fight,
although not accepted, and even the carrying of such a
challenge, are high misdemeanors, punishable by fine and
imprisonment. "What I have said upon this subject, I have deemed it
my duty to say, that a doubt of the law may not be excited
by the high and honorable standing of the parties, by the
solemn pomp of funeral rites, or the universal sympathy of
the nation."
This busy man during this time writes to his father,
"I have been for some time occupied in translating Clerke's
'Praxis Curiae Adimiralitatis,' and so much of Rowgh ton's
'Ordo Judiciorum' as is referred to by Clerke, which, as the

29

books are rare, I have thought of publishing some time here
after, with notes and precedents."
By the Act of Congress of 1816, the judges of the Cir
cuit Court, with the District Attorney, were authorized to
prepare a Code of Jurisprudence for the District of Co
lumbia. In 1818 the Chief Judge reported to Congress a
carefully prepared project for a Code of nearly six hun
dred pages, the work of his own hand exclusively. The
volume was printed, but it shared the fate of several sub
sequent efforts in the same direction. Many of its recom
mendations were quite in advance of the legal reforms of
the period, such as the proposal to abolish the punishment
of death for all offences. Whether the proposed innova
tions furnished the ground for the failure to take any fur
ther action on the subject by Congress does not appear.
An intelligent examination oi his course during his un
precedented term of service, abundantly shows that no
judge has filled out a term more industriously, usefully and
honorably than he; and this record in itself ought to> be,
and is, "honorable meed" enough to satisfy "men of noble
minds." But the Chief Judge has not escaped the imprudent
claims of incautious friends to ascribe to him something
akin to infallibility, by the assertion that an exceptionally
small proportion of his decisions were reversed by the
Supreme Court. This is not the first instance of similar
claims to judicial impeccability made in behalf of deceased
judges. In the earlier part of this sketch allusion was made
to the extraordinary difficulties surrounding Judge Cranch
that might well have explained fortuitous inaccuracies in
his rulings in the novel position in which he found himself.
Occasional inequality in mental achievements has been said
to be rather indicative of genius than of the lack of it. The
dilated mental vision, that brightens when the acclivities
that can be scaled by genius have been attained, will be

30

succeeded sometimes by a contrasting dimness, consequent
upon the inevitable descent that must lead down from the
heights; a contrast that does not attract attention where
the level slough of the performance nowhere rises above
mediocrity. Chief Justice Black, in speaking from the Bench of Chief
Justice Gibson, whom he ranked among the greatest of
judges, said: "Yet he committed errors. It is wonder
ful that, in the course oi his long service, he did not com
mit more. A few were caused by inattention; a few by
want of time ; a few by preconceived notions that led him
astray — but his great learning, remarkable character and
overshadowing reputation still made him the only chief
whom the hearts of our people would know."
The well meant but incorrect statement that only two
of Chief Judge Cranch's decisions were reversed, evidently
hazarded without any sufficient examination, has been
copied into several respectable publications. It now chal
lenges the attention of the writer of this essay, who must
either give it an endorsement by silence, or state the fact,
which is, that a careful examination of every case in the
District of Columbia Reports which was taken on appeal
to the Supreme Court, during the incumbency of Judge
Cranch, discloses no such exceptional result; but that the
full ratio, at least, of reversals obtains with respect to
them. The experience of bench and bar is against the proba
bility of such remarkable discrimination in favor of the
decisions of any judge. When some one called the atten
tion of Charles the Twelfth to a fulsome epitaph upon the
tomb of some forgotten general, "here lies one who never
knew fear," the Royal Swede remarked, "then he never
snuffed a candle with his fingers." If some one had under
taken to congratulate Chief Justice Marshall on the im
munity from reversal that attended all appeals from
his own decisions in the lower courts, he would

31

probably have referred his good-natured eulogist to
his dissenting opinion in 12 Wheaton, 64, Bank vs.
Dandidge. In that case the jury, under the instructions
of the Chief Justice holding the Circuit Court of Virginia,
had found a verdict for the defendants. In the Supreme
Court, on appeal, every justice, himself excepted, con
curred in a judgment of reversal, and the opinion was de
livered by his special friend, Justice Story. The Chief
in a lengthy dissenting opinion said: "I should now, as
is my custom when I have the misfortune to differ from
this court, acquiesce silently in its opinion, did I not be
lieve that the judgment of the Circuit Court of Virginia
gave general surprise to the profession and was generally
condemned." And he closed his opinion in these words : "I
have stated the view which was taken by the Circuit Court
of this case. I have only to add that the law is now set
tled otherwise, perhaps to the advancement of public con
venience. I acquiesce, as I ought, in the decision that has
been made, though I could not concur in it."
Several decisions of Chief Justice Taney in a class of
cases, beginning with 11 Howard, 548, were reversed by
the Supreme Court; from which judgments the Chief Jus
tice had at the time dissented, although then delivering no
opinion in either case.
In one of the latest cases (17 Howard, 260) he deliv
ered a dissenting opinion, expressing in dignified and
courteous terms his dissent ; concluding with these words :
"I dismissed them under the impression that I was
bound to do so upon the principles upon which this court
had decided them in the suits by the trustees. It appears,
however, by the opinion just delivered, that I was mis
taken, and placed an erroneous construction on the opinions
formerly delivered. It seems, therefore, to be due to my
self to state not only my opinion in the former cases, but
also the interpretation I placed upon the language of this
court, in deciding them."

32

He would be but a shallow critic who should conclude
that either of the three pre-eminent judges above referred
to was wanting in general learning or legal perspicacity,
because in particular cases he had believed it to be his duty
to differ from the majority of his colleagues.
It is not easy to speak in moderate terms of the life and
character of Chief Judge Cranch. Each advancing year
seemed to add new value to his example.
When the Associate Judge received his appointment in
1801, he was thirty-two years of age; while Chief Judge,
he died on September 1, 1855; having passed the age of
eighty-six and served in the same courts for fifty-four
years and six months — a term of service unexampled for
a judge so far as any record discloses, in this or in any
other English-speaking country. The forty-seven years of
his colleague Morsell ; the forty-five years of Judge Jack
son, District Judge of West Virginia, and the forty years'
service of Chief Justice Gibson, most nearly approach "the
years of" Judge Cranch ; which were prolonged for a term
twice as long as that of Chief Justice Taney.
Nature had placed the endorsement of her approval upon
his fine countenance that Lord Bacon declares to be "a
perpetual letter of recommendation," accompanied as it
was, in his case, by a manly frame and distinguished
presence. His manners were dignified and unassuming, and like
Chief Justice Marshall, he would not have hesitated, on
occasion, to carry home his market basket on his arm'.
Some particulars of his personal habits during all his long
life that have been gathered from one of his descendants
who naturally feels honored by his relationship with such
a man, may interest the reader.
While he had an aversion to all games of chance, he was
a capital chess player. His fondness for mechanics ren
dered it an agreeable occupation for him to take to pieces
his old clocks and oil and repair them ; and to spend time,

33

when needful, in tuning his piano and organ, on which
he delighted to play, chiefly airs of sacred music.
He had always been a man of abstemious habits and was
an advocate of temperance, and connected with those so
cieties that advocated it; and was not at all a devotee of
the tobacco luxury, and sought quietly to discourage its use
by precept and example. On one occasion, on entering
a room in his house to which the young people had retired
for a quiet cigar, the old judge cut his away through the
smoke and hastily withdrew, with the exclamation, "Tut,
tut, it smells like a jail !" People are apt to draw their illus
trations from matters with which they are most intimately
acquainted, and his fifty years' connection with the crim
inal courts had probably familiarized him with the attrac
tions of the place he referred to.
According to a statement in a book recently published,
called "The Soverane Herbe" (page 89), his prejudices on
this subject were shared by a famous character, bom in
1769, only two months before the Chief Judge. In 1845
Field Marshal the Duke of Wellington, issued an order
to the army in which he stated that "the commander-in-
chief "has been informed that the practice of smoking by
the use of pipes, cigars and cheroots had become prevalent
among the officers of the army, which is not only in itself
a species of intoxication occasioned by the fumes of to
bacco, but undoubtedly occasions drinking and tippling by
those who acquire the habit," and he therefore "intreats
the officers commanding regiments, etc., to discourage the
practice." The astonishment of the commander-in-chief when this
surprising information was thus unexpectedly brought to
his notice, must naturally have been extreme.
The total extirpation of the habit (now so obvious to
all) is doubtless due equally to these well-meant efforts
of the two distinguished contemporaries; for the old
judge's gentle domestic protest was probably about as effec-

34
tive towards its abolition as was the counterblast of the
Iron Duke.
Naturally during his long life he was associated with
many important incidents connected with the history of
his country. It is said that sometimes from the Bench, on
the anniversary of the Great Battle, he would announce,
"This is the day of the year I heard the guns at Bunker
Hill,"— for although on that 17th of June, 1775, he was
but a child, he never could forget the dawning day of the
great seven years' strife. Thirty-nine years later he wit
nessed another invasion of his home by the same foe, and
the humiliating capture and conflagration of the City of
Washington. In a letter written at the time to his sister,
he described the circumstances as they appeared before him ;
placing the army of Ross as about 4,000 men and that of
Winder as 5,000, "but principally raw militia huddled to
gether not an hour before the battle, without any confidence
in each other; yet I believe the fault was in their officers.
A wound is inflicted which ages will not cure, and a star
will be left which time will scarcely efface." (4 Bryant's
History of the United States, p. 218, Note.)
His delight in the higher classics in his own and other
languages never abated with age.
He had the great grief, when advanced in life, to learn
of the death of a much-loved son who was drowned in
Lake Erie from the upsetting of a sail-boat. Young Cranch
had volunteered to swim ashore and procure help for his
companions who, unable to swim, were clinging to the boat.
Although a powerful young man, he overestimated his
strength, and sank before aid could reach him, though his
friends were all saved. The similar fate that befell the
cherished college friend of Milton, called forth from his
pen "Lycidas," the most exquisite elegiac monody of the
language; the evident prototype of the delightful Adonais,
in which in imperishable verse Shelley has embalmed at

35

once his glowing tribute to the genius of Keats and his
detestation of the cruel ridicule of his critics.
The mourning father recalled these lines from his favor
ite poem, and inscribed them upon the monument that he
placed near the scene of the disaster :
"Weep no more, woeful shepherds, weep no more —
For Lycidas, your sorrow is not dead,
Sunk tho' he be beneath the watery floor ;
So sinks the day-star in the ocean bed,
And yet anon repairs his drooping head,
And tricks his beams, and, with new spangled ore
Flames in the forehead of the morning sky;
So Lycidas sunk low, but mounted high,
Through the dear might of Him that walked the waves."
One of the resolutions adopted after his death, at a
meeting of the members of the bar who knew him best, and
many of whom were justly distinguished men, presents this
fine delineation of his judicial character :
"Resolved: That in his death the Judiciary has lost one
who by his integrity, zeal, and uprightness and purity of
character, has added a luster to the whiteness of the judicial
ermine. For more than half a century he held the scales
of justice with a steady hand, and knowing no man in a
cause, has dispensed only the equal law of the land with
firmness tempered by urbanity."
I know of no public man, to whom would better apply
¦the glowing words of Wordsworth, describing the char
acteristics of "The Happy Warrior," than to William
Cranch :
"It is the generous spirit . . .
Whose powers shed around him in the common strife,
Or mild concerns of ordinary life,
A constant influence, a peculiar grace.

36
But who, if he be called upon to face
Some awful moment to which Heaven has joined
Great issues, good or bad for human kind,
Is happy as a Lover ; and attired
With sudden brightness, like a man inspired ;
And, through the heat of conflict, keeps the law
In calmness made, and sees what "he foresaw ;
*****
Who if he rise to station of command,
Rises by open means ; and there will stand
On honorable terms, or else retire,
And in himself possess hfc own desire ;
Who comprehends his trust, and to the same
Keeps faithful with a singleness of aim ;
And therefore does not stoop, nor lie in wait
For wealth, or honors, or for worldly state";
Whom they must follow ; on whose head must fall,
Like showers' of manna, if they come at all :
This is the Happy Warrior; this is He,
That every man in arms should wish to be."
No more appropriate epitaph could be framed for such
a man than those familiar words written nineteen centuries
ago by the great Augustan poet, as if conceived to charac
terize the chief est merits of the consummate judge with
whom the determination to render equal justice without
respect to persons, whether the eagles fly to the right or to
the left, becomes almost a passion —
Justum, et tenacem propositi, vvrum.