Michigan History Magazine, Vol. I, July 1917.
A SKETCH OF THE LIFE OF JUDGE ISAAC MARSTON
By William L. Clements, B.S.
Carlyle defines one life as “a little gleam of time between two Eternities” and the work of myriads of lives as history. There are innumerable biographies of human beings, and yet of those whose names are written in all history, all are infinitesimal compared to the countless millions who have passed through life enduring and struggling, all of which if faithfully recorded, would be of interest to humanity.
Austin Dobson's lines ---
“Time goes, you say? Ah, No,
Alas! time stays; we go”
suggest a great sculptor, “The Fountain of Time,” -- a great throng of earnest, pushing figures passing in review before Father Time, each intently bent upon reaching his goal. If in this conception of humanity and time and the countless millions in review, Carlyle's question were asked of each at the end -- “What then have you done?” the record of the uncounted million would be, Life,
“full of sound and fury,
And yet in recorded time, a speck appears here and there and an individual stands out in the review. He has done something out of the ordinary, affecting possibly the world's history, a nation's history, the literature of a language, developed a science or and art, and his work marks a new era. Such men are world characters; in our generation we know a few such men, and there are many others since the beginning of history. Can one estimate the influence upon civilization of the work of Ceasar, Charlemagne, Columbus, Napoleon or Washington; or in literature and science, of Shakespeare, Goethe, or Newton? Such men belong to the world's history. In our own national life, the work and influence of Jefferson, the Adamses, Webster, Clay, Seward and Lincoln are its political history, and the productions of Hawthorne, Emerson, Whittier and Irving are the beginning of its literary history.
If we continue in our examination and citation of men whose lives and work have been powerful influences for good politically, morally, scientifically, or in many ways in our individual states and in local communities, our list grows large; but it is still infinitesimal as compared to the ceaseless roll of humanity ever coming and going, and if any man belong in such a list, surely it is high hone, an exception among the thousands, and his work and influence deserve a permanent recording. It is well, therefore, that in our nation and in the states, the work of recording worthily the lives and influence of such men be done by the various historical oraganizations – in this State, by the Michigan Pioneer and Historical Society.
At this time it is nearly twenty-five years since the man Isaac Marston, about whom I am to speak, departed this life, and yet throughout the State of Michigan, and to a marked extent in the communities in which he lived, his name and his work are still of frequent mention and always with elevating influence. Within the memory of many of you, he and his associates lived; and I cannot refrain from recalling to your memory several of these remarkable men – remarkable, not only for their learning in law, but also for their other great abilities, whose influence has been felt ever since by many men of Michigan. The legal opinions of Thomas M. Cooley, James V. Campbell, Benjamin F. Graves and Isaac Christiancy, are legal treatises and of great educational value. As members of the Supreme Court of this State they created throughout the country the greatest respect for our Michigan Reports, and their work is monumental at this time.
Isaac Marston, was born in the year 1840 at Pointz Pass, in the County of Armagh, Northern Ireland. His father, Thomas Marston, was an Englishman and he belongs to the aristocratic classes. Little is known of him or his family, but without doubt the historic battlefield of Marston-Moor, near York, belonged to his family. In Thomas Marston's family were two children, a girl and the boy Isaac. The family were members of the Church of England. When the son, Isaac, was two years old his father died and the family were left in poor circumstances. Isaac attended school and later worked in a store. At the age of sixteen years he came to Southfield, near Pontiac, Michigan, where he had an uncle, and where he lived with his uncle's family, working summers and attending school in winter until he was nineteen, or in 1858, when he entered the Law Department of the University of Michigan. Two years he spent in study at Ann Arbor, and graduated in the class of 1861, the second class to go out from the Department. Undecided where to locate, he first went to Alma – then an agricultural village, where litigation did not thrive – and a little later to Ithaca, Gratiot County, where he practice law until 1862.
In these early days of his career, there was begun an acquaintance and relation which last throughout his life, with Judge Thomas M. Cooley. Judge Cooley, with Judges James V. Campbell and Charles I. Walker, during these times was Professor of Law in the University of Michigan, and a little later, in 1864, became one of the Judges of the Supreme Court of the State. I cannot do better than repeat Judge Cooley's remarks relative to Marston at this time: “He came to me still a boy, not yet having reached the age of twenty-one, to express his desire to enter upon the study of law. A little inquiry showed to me that he was without the usual attainments that are deemed necessary before that study is entered upon. His education was slight; he had been a grocer's apprentice in a distant land. He had come from the land without the means of support, and landing in this country he was glad to accept the position of “hired man,” as we express it, upon a farm. He had worked there for a time, but only while he was determining in his own mind what he would take up as his business in life; when he had decided to study law, he came to the University, but he came without means of living there, and, what would have appeared singular in most men, he seemed to be without a perception of the fact that want of the pecuniary means constituted serious impediment to a man who was about to start out in life. To him it only presented a state of facts that might render necessary unusual and more persistent efforts than must be made by others who by birth or otherwise were differently circumstanced, but he took it as a matter of course that he was to make all necessary effort and that in some way he would find work, “however undesirable in itself, whereby he might pay his way through the University. It never occurred to him that with sufficient willingness he could fail in this; and with the aid of those he met there, who saw in his face the proofs of energy and work, he happily did not fail. In the meantime he was perfectly willing to submit to such deprivations as would naturally come in his way and to live in the simplest and least expensive manner. In short, he saw something ahead he was to attain and he proceeded at once to put aside such obstacles as stood in his way, without apparently a thought or suspicion that there was a possibility he might not succeed, nor did those who learned to know him at the University feel that failure would be his lot. They noticed his earnestness, they learned how quick were his perceptions, how soon he mastered legal principles and how readily he made friends and the prophecies for him were an honorable if not high career.”
At this time Judge James V. Campbell, who was also his preceptor in the Law Department of the University, said of Marston, “I was in the habit of seeing him constantly and was very much struck at that time, not only with his diligence in habits, but also with his great intelligence and studiousness.”
I pause here, for these words of Judge Cooley about Marston mean much to one who knew him. It was my fortune in life for a period of twenty years to be intimate with a member of the Cooley family and during this time to see much and feel the influence of Judge Cooley. In his early life he himself, a poor boy, struggle for the means whereby to live and secure an education; work and perseverance were self-drilled into every fibre of his body and it is no wonder indeed that he, with is sympathetic nature, took an interest in young Marston. It has been said that Judge Cooley was always his best friend. Those early words of encouragement to Marston were then and afterwards what he needed in combination with his abilities and perseverance. In those early days Judge Cooley was preparing himself for the more important work he later was to do. It was self-education with him, and his keen appreciation of ability and sympathy for earnestness in work ever continued active.
I make this statement that no Department of the University of Michigan has so many students whose work at the University and afterward has been so influential by any man as by Judge Cooley in the Department of Law. His dignity, his reserve, his unprejudiced, kindly advice, his keen interest in earnest effort, but about all, the example of himself as an indefatigable worker, may be familiar to many of you. At a period some little time later he might be seen daily during the early morning with a basket of books make his way to his office in the Law Building for work, to return again with the same basket late in the afternoon; nor did this finish his day's work. As a neighbor and occupant of a room overlooking Judge Cooley's study, and sometimes a midnight wanderer from the Campus, to me his study light would show him in relief, and the everlasting movement of his pen. Sunday afternoons in the summer days of about 1875 are remembered by me for their long rides with the Cooley family into the country and then into the woods, and for the figure of Judge Cooley in profound meditation.
Young Marston with such influence and example and with law books to the value of one hundred dollars, supplied him by Judge Cooley after graduation, went first, as has been stated, to Alma, and then to Ithaca. Here he was married to Miss Emily Sullivan. The hardship of his internment in these two villages was undoubtedly great; from the peacefull nature of the communities, pecuniary success was impossible, but his greatest loss was the destruction by fire of the books furnished him by Judge Cooley. In Ithaca, the county seat of Gratiot County, he met Judge James Birney, of Bay City, at a term of court. Judge Birney was then a lawyer of prominence in his community and was later Minister to The Hague. He quickly appreciate the abilties of young Marston and advised, with success, his making Bay City his home; and so in the early summer of 1862 Mr. And Mrs. Marston arrived in Bay City. Mr. Marston had received in the meantime a small sum of money from his mother, from which he remunerated to Judge Cooley for the books furnished him, and with the small remaining balance he built a cottage in Bay City.
Looking backward from this time when his real start in life began, we are impressed by his earnest effort in self-education and his ambition to put into practical use the legal knowledge he had gleaned at Ann Arbor. In our own day, education is more frequently than not, handed to us, with entreaties to receive it. There are but rare instances today where boys or girls who earnestly desire and education cannot secure it. The fellowships, scholarships, and other funds available for needy students in our schools, colleges and in the most generous degree ni our own University, were then unknown. Much good has been done by them,l in particular by the borrowing funds where the student must return to the fund the amount he receives. A fund of this kind available for such a student as Marston would have fulfilled its best use; but, as he had the perseverance, there was no training for him so effective as serious obstacles to overcome in the pathway of life, exceeding in value the mental discipline of the study of Greek; or in mathematics, of Sturm's theorem, or Des Cares' solution of bi-quadratics. Strong character thus built is of inestimable value, much greater than learning.
The great period of Michigan's lumbering days may have been from 1872 to 1880. During these years was begun and carried to consummation, without regard to conservation or the rights of future generations, the destruction of Michigan's white pine forests. Saginaw Valley the confluent stream through which logs passed to the mills. Along the river, mills were then in course of erection; commerce and population were increasing, which a little later were to make Saginaw and Bay City the busiest communities in the State, and to put an accelerated activity into twenty years which with today's advanced ideas of conservation should have been spread over a century. And such waste!
In the summer of 1862, when Marston came to Bay City, legal controversy was rife, but competition was keen. There were several experienced attorneys there. He opened his office, but during the first four months only five dollars in money was received. The next four years, however, owing to services rendered the alien laborers from Canada, many of whom were drafted in President Lincoln's call for men to serve in the Civil War, were very profitable for him, and he then really received his first pecuniary reward. In the spring of 1863, Hershel H. Hatch, a man of ability, about his own age, came to Bay City, and a partnership was formed between them. Hatch thus describes his meeting with Marson: “In March, 1863, I emigrated from the State of New York and came to the Saginaw Valley. I applied for admission to the Bar of Bay County; Judge Birney was then on the Bench. I passed my examinations and the Committee reported favorably. I was introduced to two or three of the lawyers that were present. As I turn to go out of the courtroom, being an entire stranger, a young, spare-bodied man with a pale face approached me and asked me if I didn't want to go into partnership with him. He said he had bee a resident of Bay City for about eight months. He grasped me cordially by the hand and invited me to his office. That man was Isaac Marston. We continued to be partners until the year 1868. At this time he entertained the plan of removing from Bay City and locating in one of the southern States, thinking it needful that he should live in a warmer climate, for event then he began to be affected with lung difficulty. The partnership was dissolved, but after the dissolution he change his plans and remained in Bay City. We practiced law separately two years, however, and in 1870 we again came together and once more re-organized the old partnership. In 1872 Mr. Edgar A. Cooley was taken into the firm and the firm name became Marston, Hatch and Cooley.” This association was fortunate for all members. Bay City was rapidly growing in population and business, and as diligence and fidelity were characteristics of all three members they soon had an excellent business and retainers came to them from considerable distance.
Marston's forceful character and abilities forced themselves upon all who knew him, and early in his career as a practicing Bay City attorney he began to attract attention. A brief of his first important case was submitted by him to Judge C. I. Walker, of Detroit, and of this Judge Walker said, “It was remarkable. I had never conferred with a lawyer from the country who came so well prepared.” this brief was afterwards highly spoken of by the Judges of the Supreme Court.
He was always interested and active in politics and his reputation for fearlessness and honesty of purpose was brought to the attention of the people of Michigan in the famous Driggs fight of 1870. His associate, Mr. H. H. Hatch give this account of it: “The Honorable J. G. Sutherland was nominated for the office of Representative in Congress by the Democratic party and the Honorable John F. Driggs, of Saginaw, was nominated by the Republican party. Marston has always been a Republican, but upon this occasion he opposed the nomination of the Republican party. He was very active in the campaign. He opposed the nomination of Driggs in the Republican convention, he took the responsibility of sitting in judgment upon the nominee of the convention, refusing to be bound by the action of the convention if it did not meet his approval. That was the time when he acquired the title of the “Boy from Bay.” He was bitterly denounced by the old-line Republican politicians and newspapers, but he heeded not this opposition; he fought the contest with marvelous energy, and perhaps no man contributed so much to the result as did Isaac Marston. This gave him a reputation in politics, and from that time on he was an active politician. The result of the contest was the election of Sutherland and the defeat of Driggs.”
A period of twenty years, from 1862 until 1882, was spent with his home in Bay City, but much of his time in Lansing. He first acted for a time as Justice of the Peace; for one session, 1872, he was a representative in the State Legislature, where he me and became a friend of Governor Bagley; for a term, in 1866, he held the office of Prosecuting Attorney for the county, and in 1868 he was re-elected for a second term; finally, a vacancy occurring in the office of Attorney General of the State, in 1874, upon invitation from Governor Bagley he accepted the position. Governor Bagley was one of Michgan's ablest executives, picking out efficient men for office, frequently irrespective of party., wherever they were to be found. This appointment was very complimentary to the abilities of Mr. Marston. As a further honor from the Governor, when Judge Christiancy resigned from the Supreme Court in 1875 to take his seat in the United States Senate upon the defeat of Zachariah Chandler – which was one of the strangest occurrences in Michigan history – Mr. Marston was appointed to fill Judge Christiancy's unexpired term. Mr. Marston was nominated and elected by the Republicans in 1875 to succeed Judge Christiancy and in 1881 he was elected to succeed himself; and as if in universal recognition of his fitness and abilities, no canvass was deemed by his friends necessary. Judge Marston had now reached the highest position in the Judicial Department of Michigan, an associate with Judges Cooley, Campbell and Graves; and I cannot do betteer than to repeat Judge Cooley's remarks upon this occurrence:
“Two of these men had been his preceptors at Ann Arbor. All of them knew him well as a lawyer and were well pleased with the selection. They new that they were to expect in him an industrious and painstaking associate and that the manner in which he would discharge his judicial duties would be alike honorable to himself and useful to the public.
“I might stop to enumerate, one by one, the qualities which I think eminently fitted him for the place. His character was entirely above reproach; his integrity was unquestionable; his mind was judicial in the highest degree; he was as free as any man with whom it has been my fortune to be acquainted from anything in the nature of prejudice, or of such partisanship as could in the least degree raise any question as to the possibility of partiality or dislike swaying his judgment, and nobody raised any question of his eminent fitness for the place in this regard, or even suspected that he could be swerved one way or the other by political, social or personal affiliations.
“In his judicial decisions, he always addressed himself to the very point in issue, caring very little for the graces of language, and not apparently seeming to think them important. He was on the Bench to do what was right, to apply the law directly to such cases as came before him, and he used such language as would, in his opinion, be understood, and instead of leading anyone into confusion, would furnish a useful precedent in future cases.”
A full appreciation of him as a judge and lawyer must come from a blending of remarks, each written by men who knew him in a particular phase of his life. Justice Charles D. Long said of him: “His opinions are filled with that careful thought and study and are written with the same vigor which were manifest in his practice at the Bar. He always spoke to the point in controversy and he always wrote to the point , without any of that circumlocution which characterizes so many judicial writers.”
Of his legal opinions again Judge Cooley said: “They were notable for brevity and clearness and for an evident purpose to make them express concisely the exact idea he had in mind. Elegance of diction he apparently did not care for and certainly did not attempt.”
Judge Marston remained upon the Supreme Bench in Michigan a little less than eight years. In 1883 he resigned his position and decided to enter actively into the practice of law; and with this in view he removed his family from Bay City to Detroit. From this time until within a few months of his death he was there engaged in the work of his profession. His closest association, although no partnership existed, was first with the late Colonel John Atkinson and alter with Mr. Israel T. Cowles. His last work was done through the association of Marston, Cowles and Jerome.
The reasons for Judge Marston's retirement from the Bench were undoubtedly diverse. It has been said that his failing health was more manifest to himself than to others, and that the more active life of a practicing lawyer was more congenial to him. His assurance of a very remunerative practice in Detroit, and possibly the feeling that his career would not be a long one and a desire to leave his family in a position of comfort, doubtless had much to do with this decision. He did not resign, however, until through the opinions which he wrote as a member of the Supreme Court, he had established his reputation as a learned lawyer. It is indeed a career much out of the ordinary that a man advance from a poor boy struggling for an education, to the highest judicial position in the State, all within a period of fifteen years. He was the youngest man, at that time, ever elected to the Supreme Court of Michigan. There was fulfilled ambition, and yet the right kind of ambition. No doubt he was encouraged and gratified in the steps of his advancement, yet all this gratification was surpassed by his love of home, wife and family; his gratification was for their gratification.
Much might be written of his career as a practicing lawyer during his residence in Detroit. He had made a reputation and his practice there was large and remunerative; and the Michigan Reports covering this period will show that he was engage in very many important litigations. His abilities and temperment qualified him as well to play the part of Advocate as of Judge. His excellent judgment, in business matters, was shown in the settlement of the Nestor estate, which though extensive, was very seriously involved. Through his judicious guidance, involving much work, all debts were paid and a substantial sum passed to the heirs.
His associate at the Detroit Bar, Mr. Henry M. Duffied, spoke thus of him.: “As a layer he was the peer of any. Fearless and honorable to a high degree, he added to his abilities the weight of those attributes ans was an antagonist in trial courts whom no good lawyer met with undue confidence. His services upon the Bench are shown in his clear, lucid and forcible opinions.”
His last associate in the practice of law, Mr. Israel Towne Cowles, speaks thus of him: “He was a born lawyer. His analyses and reductions to fundamental laws in cases where precedent and similar cases could not be found, showed him to be a great lawyer.”
I have repeated the words of his associates relative to his professional work, but my sketch of him would be still incomplete did I not mention his other qualities. At the University he was a favorite with his fellow students, for he was of a cheerful and buoyant disposition and as companionable as he was attentive to his studies; and the fact that his means compelled rigid economy did not lessen this respect. Beginning early, all who knew his life; fraud and sham he detested, and he would fight to expose them, as he did in the Driggs case. He was most generous, and his kindness of heart made him a colleague and associate whom to know was at the same time to love. He was endowed by nature with great common-sense and his love of humor was great. With a keen sense of right, he would not take a case in which he was convince his client was wrong, but would advise a settlement.
It is related by his partner, Mr. Cowles, as an episode illustrating Mr. Marston's sense of honesty, that in the course of their prosecution of a case against a certain wealthy but unscrupulous Detroit citizen, they were visited one day by him with a tender of a large sum of money for a cessation of prosecution for his iniquitous practices. Marston and Cowles were located in one of the old Detroit offices buildings without elevators and with the steps, often counted by the tenants, to the number of one hundred twenty-seven from the ground. The “intent on settlement” gentlemen first interviewed Mr. Cowles within the hearing of Mr. Marston; he was told by Mr. Cowles that he was one hundred and twenty-seven steps above the street and the he would be given two seconds to make the descent. Forthwith he disappeared with Marston appearing, exclaiming: “Cowles you made a mistake in giving him two seconds!”
Another marked trait of character possessed by Mr. Marston was his ability to attach other people to himself. Mr. Hatch said of him: “I think the mad had hardly any enemy on earth, but he had a troop of friends. He had a cordial and hearty manner; no other man whom you would meet would grasp you so vigorously by the hand.”
As a husband and father, he was indulgent and kind. His wife and four children – three sons and one daughter – and their friends, who were many times welcome visitors to the ever hospitable Marston home, attest his lovable disposition.
In appearance Judge Marston was a little more than average height and below average weight. In walking, his gait was rather shambling, and his head was held closely between his contracted shoulders. His hair was light, combed close back, and he wore a long thin mustache; his features were well defined and his voice of high pitch, but pleasing. He is remembered by many in the usual unbuttoned frock coat of his day, low collar and long string tie, and in his characteristic attitude of leaning forward in his chair, his legs crossed, with his elbows upon the arms, speaking intently; and in speaking he always commanded attention.
I have followed briefly the career of Judge Isaac Marston to the time in August, 1891, when from Detroit he returned to Bay City, there to live upon his farm along the banks of the Kawkawlin River, there to be relieved of confining work. He had fitted “Riverside” as he would have it; and there, afflicted with a malady the rapid fatality of which no one knew better than he, he returned to linger until the 31st of October, Sunday, at mid-night, when he died, cut off as her was at the age of fifty-two years. His funeral occurred the following Wednesday, attended by many of his friends from Detroit and Bay City.
And so the curtain drops, and Isaac Marston has ended his career. He early answered to his call. To that sharp question Carlyle asked, “What then have you done?” we may answer for him: A not inconsiderable amount of legal writing of merit, but above all, an example of industry in applying to their best use, though obstacles of purpose, ever taking advantage of opportunity offered; throughout all, sterling honest and hatred of all shams, a fighter for the right, altogether making up a character stimulating those about him and those to come after him who may read of what he did.