OJurn^U ICam ^rljool ffithrarg 
 
Cornell University Library 
 KF 368.F85L56 
 
 IBtography of Abraham Clark Freemant 
 
 3 1ig4 018 821 805 
 
Cornell University 
 Library 
 
 The original of tliis bool< is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31 92401 8821 805 
 
Btograp!)^ of 
 ^tof)am QlarMSteeman 
 
 EDITED BY 
 
 HON. THOS. J. LENNON 
 
 Presiding Justice First Appellate District 
 
 District Courts of Appeal of California 
 
 AS A TRIBUTE TO A 
 GREAT LAWYER THE 
 SACRAMENTO, CALI- 
 FORNI A, BAR, pF 
 WHICH HE WAS A 
 BRILLIANT ORNAMENT. 
 SENDS YOU THIS BOOK. 
 
Btograp!)^ of 
 jSCtotam Qlarfe preeman 
 
 EDITED BY 
 
 HON. THOS. J. LENNON 
 
 Presiding Justice First i^pellate District 
 
 District Courts of. Appeal of California 
 
 AS A TRIBUTE TO A 
 GREAT LAWYER THE 
 SACRAMENTO, CALI- 
 FORNI A, BAR. OF 
 WHICH HE WAS A 
 BRILLIANT ORNAMENT, 
 SENDS YOU THIS BOOK. 
 
/^ f^ 93 
 
He seized, as it were, by intuition, the very spirit 
 of juridical doctrines, though cased up in the armor of 
 centuries; and he discussed authorities as if the very 
 minds of the judges themselves stood disembodied before 
 him." 
 
Chapter I. 
 
 B RAH AM CLARK FREEMAN 
 
 was born in Bannock County, Illinois, 
 May 15, 1843. He came from vig- 
 orous, but undistinguished, pioneer 
 stock. In 1 861 he moved with his parents to 
 California. He was then a tall, angular, awk- 
 ward boy of retiring disposition. 
 
 He began his legal studies in the office of 
 Morris M. Estee, then District Attorney of Sac- 
 ramento County, California. All his contempo- 
 raries bear witness that he was an indefatigable 
 student to whom the law seemed a second nature. 
 With that remarkable aptitude and industry 
 which distinguished him in after years, young 
 Freeman made rapid progress and was licensed 
 to practice in 1868. In the interim, after his 
 admission to the bar but before he had obtained 
 an established practice, he wrote his first book, 
 "Freeman on Judgments," which was published 
 in 1873. It at once gave the author world-wide 
 renown. A review of this book appearing in the 
 American Law Review, Volume VII, pages 714 
 and 715, published in 1873, aptly summarizes 
 Mr. Freeman's points of genius. Says the critic : 
 "Mr. Freeman has astonished us at every 
 " point; and we venture to predict for him real 
 
" eminence as a legal writer, if he continues to 
 " devote himself to that department of the pro- 
 " fession. Scholarly, modest, and unusually 
 " lucid, both in general arrangement and de- 
 " tailed expression, we have rarely found our- 
 " selves able to give such hearty and deserved 
 " praise to the works of an experienced writer, 
 " much more to one whose name is, until now, 
 " unfamiliar to the profession. . . . 
 
 "So many books are written apparently as 
 " mere notes of study, mere means for the writer 
 " to learn the branch of law which he assumes to 
 " teach, that it is a novelty now to find a man 
 " willing to become a full man before he mounts 
 " the editorial chair. The condensed nutriment 
 " Mr. Freeman gives is rarely met with in recent 
 " books. . • . 
 
 "If Mr. Freeman will open a school to teach 
 " the makers of law books how to do their work, 
 " we will recommend more than one high dig- 
 " nitary to go to it and sit at his feet. They 
 " would stand a better chance to reach posterity 
 " and we should find their lucubrations much 
 " more valuable after a thorough training under 
 " Mr. Freeman. It seems impossible for a 
 " young lawyer to have composed so good a book 
 "in so good a manner; yet it seems almost im- 
 " possible that, if old in the law, so able a writer 
 " should not have long since been familiar to the 
 "profession everywhere; and we confess to a 
 " painful doubt lest he turn out to be some emi- 
 
" nent barrister, whom not to know is only to 
 " confess our ignorance." 
 
 In 1874 he published a work on "Cotenancy 
 and Partition," and in 1876 there was issued his 
 learned and exhaustive treatise on the law of 
 "Executions." All of these books at once took 
 high rank and are everywhere regarded as schol- 
 arly treatises and standard authorities on the sub- 
 jects dealt with. 
 
 But the writing of text books was a mere inci- 
 dent. Incessant work was the key note of his 
 life. He rejoiced in it, as any one must who has 
 the skill and strength to do it swiftly and well. 
 He devoted thirty-two years of his life to his 
 solution of the case law problem, in which he 
 has builded for himself a monument that will 
 endure as long as the law is administered. 
 
 He began this work in 1879, when he became 
 the editor of the American Decisions. This 
 undertaking involved the examination of all 
 American State cases reported from 1760 to 
 1869, the elimination of those purely local to 
 the jurisdictions in which they were decided, or 
 obsolete in principle, and the reporting in an 
 uniform series of the cases from each State that 
 had an extraterritorial and present value. It 
 was obvious that an enormous number of the 
 cases decided before the Civil War were utterly 
 obsolete and only served to pad an already re- 
 dundant mass of adjudication. • On the other 
 hand, these early reports contained cases that, 
 
on account of their universal application, the 
 soundness of their doctrine, and the rare quality 
 of their language will forever retain their autho- 
 rity. One needs only to turn to the opinions 
 rendered by Chancellor Kent and his contem- 
 poraries an hundred years ago to be reminded of 
 the firm foundation upon which our system of 
 common law is based and the scholarly exposi- 
 tion of its basic principles there given. Mr. 
 Freeman had a genius for the work. Long after- 
 wards, in the light of what he had accomplished, 
 Judge Seymour D. Thompson wrote of him: 
 
 "By natural ability and long experience, by 
 " reason of the judicial bent of his intellect, his 
 " industry, and his capacity for turning out work, 
 " Mr. Freeman is peculiarly fitted for the work 
 " of selection, begun over twenty years ago, and 
 " continued without a break from that time to 
 " this." 
 
 Judge Jonathan Haralson, of the Supreme 
 Court of Alabama, adds: "Mr. Freeman is bet- 
 " ter equipped for the selection and annotation 
 " of cases than any man, or group of men, of 
 " whom I have knowledge." 
 
 He did the work with the rapidity and cer- 
 tainty of accomplishment that marks the self- 
 known master of the science of jurisprudence. 
 None who are familiar with his work can fail 
 to appreciate his extraordinary intellectual 
 powers, especially as revealed in his grasp of 
 legal principles. There was nothing academic 
 
in his thought. He would glance over page after 
 page of abstruse opinions with the ease and 
 rapidity with which the average person looks 
 over the headlines of a morning newspaper, yet 
 a material point never eluded him. Chief 
 Justice Whitfield, of Mississippi, has said that 
 he regarded Mr. Freeman as one of the ablest 
 law analysts. It was this power of analysis, this 
 ability to lift the living principle out of the con- 
 fusion of facts in which it was presented in the 
 case, which made it possible for him to select 
 those cases that would live as authorities. 
 Hon. William R. Lawrence writes : 
 "The care, judgment and skill of the editor 
 ** (Mr. Freeman) in the selection of cases from 
 " the many tens of thousands that have been 
 " poured forth from the courts of the states, and 
 " the remarkable accuracy of his notes, not one 
 " of which has been misleading, so far as I know, 
 " have made him a benefactor to his brethren 
 " of the bench and bar, an honor to his profes- 
 " sion, and a bright particular light in the legal 
 " literature of America." 
 
 In 1886 he completed the American Decisions 
 which, in one hundred volumes, contain all the 
 cases from the first one hundred and ten years 
 of American Jurisprudence that have an extra- 
 territorial and present value. The certainty 
 that, for the period covered by it, this set of re- 
 ports contains only those cases, and all of those 
 cases, in which judicial pronouncement has been 
 
given to the living principles of the law, is estab- 
 lished by the fact that the cases in the American 
 Decisions have been cited by courts of last resort 
 nearly three hundred thousand times. For a 
 great number of legal principles these powerful 
 and fundamental decisions have furnished the 
 whole of the foundation, and much of the super- 
 structure, of the jurisprudence of every State in 
 the nation. Their influence has been, and is, 
 co-extensive with Anglo-Saxon jurisprudence. 
 Their authority, and value as precedents, will 
 be co-existent with the forever living principles 
 of right by which the affairs of civilized men 
 are governed. To Mr. Freeman is due the credit 
 for lifting these cases from the wilderness of re- 
 dundant and obsolete adjudication in which they 
 were often lost, and making them available to 
 lawyers everywhere by setting them out as an 
 unit in the American Decisions. 
 
 In 1886 Mr. Freeman became editor of the 
 American State Reports, in which are reported 
 cases of general and permanent value and impor- 
 tance from that date to the present time. In 
 1888 Mr. Freeman's publishers purchased from 
 John D. Parsons, Jr., of Albany, N. Y., the 
 American Reports, which, in sixty volumes, give 
 the important decisions of the several state courts 
 from 1869 to 1886. Thus they form a link in 
 the connected series in which they are imme- 
 diately preceded by the American Decisions and 
 followed by the American State Reports. 
 
 10 
 
Chapter II. 
 
 The American State Reports, from the very 
 beginning, had a full-orbed promise of great 
 success. Mr. Freeman was universally recog- 
 nized as a master of the work. A series of se- 
 lected cases was no longer an experiment, but 
 an established necessity. Indeed, it is still a 
 mooted question as to whether or not the best of 
 the reported cases are not more serviceable to 
 courts and lawyers than all of the reported cases. 
 Practical tests of the question lead to an affirma- 
 tive answer. It is certain that questions involv- 
 ing purely local pleading, practice and statutes 
 are the pivotal points of at least fifty per cent 
 of the cases decided in any jurisdiction, and that 
 such cases have no extraterritorial value. If a 
 lawyer in any State had all of the reported cases 
 of any other State, or all other States, fifty per 
 cent of them would, on this account, be merely 
 .an incumbrance. Of the remaining fifty per cent 
 of the extraterritorial cases the substance of per- 
 haps a majority of the opinions would be the 
 mere citation to other cases, or quotation from 
 other cases, in which the principle of the citing 
 case had been exhaustively considered, logically 
 stated and finally settled in the particular juris- 
 diction. The weight of authority is not in the 
 
 II 
 
number of cases, nor in the recentness of them, 
 but in the sound judicial learning, legal logic 
 and common sense expressed in the opinions of 
 the court. Cases in which these were not to be 
 found would be also a mere incumbrance. In 
 every investigation, after examining all cases on 
 the point, a few of the best considered are 
 selected and made the basis of the brief or argu- 
 ment. If, under one digest alphabet, there could 
 be reported on every point of law the few best 
 considered cases which every capable and care- 
 ful searcher for authority would, after examin- 
 ing all the cases, select as the basis of his brief 
 or argument, certainly that set of reports would 
 be a complete solution of the case law problem. 
 It follows that the real need will always be, not 
 for all the reported cases, but for a selection 
 whereby all the cases of a purely local color, or 
 without intrinsic merit, are eliminated, and only 
 those of general and permanent value and impor- 
 tance are retained. When the great disparity of 
 the cost of all the reported cases and the cost of 
 the selection which gives the service of all the 
 reported cases is considered, the conclusion in 
 favor of the selection becomes reasonably certain. 
 When the enormous time and labor-saving util- 
 ity of the selection is considered, this conclusion 
 becomes indubitably true. 
 
 The law is a science of principles, not a cata- 
 logue of single instances. Mr. Freeman so con- 
 ceived of it, and thus reduced it to an exact 
 
 12 
 
science, for the number of its principles is a 
 mathematical certainty. As an exact science, he 
 has completely stated it in the cases selected for 
 the American State Reports. During the past 
 twenty-five years practically all of the earlier 
 cases have been reviewed, and the principles of 
 them given a new judicial pronouncement, while 
 the progress of commerce, and invention, have 
 necessitated new subject divisions of the law. 
 Therefore, from these modern cases he has been 
 able to make a selection that, with mathematical 
 certainty, covers all legal principles. 
 
 When he began the work on the American 
 State Reports, Mr. Freeman had added to his 
 native genius his experience with the American 
 Decisions and had fully developed and firmly 
 established the science of selection. His unpar- 
 alleled proficiency for the work has made the 
 American State Reports an almost perfect state- 
 ment of all legal principles, and has given to the 
 profession in one hundred and forty volumes a 
 working equivalent of all reported cases. 
 
 The success of this series brought competitors 
 into the field, but no competitor could find a 
 genius like Mr. Freeman. It is, indeed, seldom 
 that history produces such a mind. Two of the 
 greatest jurists of their generation. Chief Justice 
 McClellan, of Alabama, and Chief Justice Sim- 
 mons, of Georgia, unqualifiedly declare: "The 
 "American State Reports are, in our opinion, 
 " the most valuable reports ever published." 
 
 13 
 
The whole of both Supreme Courts concurred 
 in the opinion. The same emphatic statement of 
 their unrivaled excellence has been made by 
 thousands of lawyers and judges in all parts of 
 the country. 
 
Chapter III. 
 
 This biography is climactic. The greatest 
 achievements of Abraham Clark Freeman re- 
 main yet to be mentioned. 
 
 Reviewing "Freeman on Judgments," the 
 critic said: "We venture to predict for him real 
 " eminence as a legal writer, if he continues to 
 " devote himself to that department of the pro- 
 " fession." (Pages 5 and 6, infra.) This re- 
 viewer was prophet as well as critic. If Mr. 
 Freeman had written text books on every subject 
 division of the law, it is certain that each of them 
 would have taken rank as a scholarly treatise and 
 standard authority. The fact is that he has not 
 only written text books on every subject division 
 of the law, but has written elaborate text treatises 
 on practically every minute subdivision of every 
 main subject division. These treatises are pub- 
 lished as annotations, or notes to the cases re- 
 ported in the American State Reports, and as 
 stated by Judge H. G. Connor, of the Supreme 
 Court of North Carolina (now U. S. District 
 Judge) : "are exhaustive, accurate and may be 
 " relied upon with safety." Judge G. H. Brown, 
 Jr., of the same court, adds: "The annotations 
 " by Judge Freeman are of the greatest value 
 
 15 
 
" and assistance and cannot be too highly recom- 
 " mended as legal classics." 
 
 As the inclusion of these notes in the American 
 State Reports was a part of the original plan, 
 it will be of interest to consider again the full 
 scope of the work. The entire field of legal 
 principles is covered by the cases reported in 
 this series. The close principle of each partic- 
 ular case is made the subject of an elaborate 
 monographic note in which is given a complete 
 statement of every phase of that principle which 
 has resulted from the judicial considerations of 
 it by the courts of America and England, and 
 an exhaustive review of the cases in which the 
 principle had been applied. Since there are 
 cases upon every close point it follows that there 
 is a note upon every close point, and the scope 
 of the notes being commensurate with the scope 
 of the cases, they, too, cover the whole range 
 of legal principles. 
 
 The need for, and value of, such work is 
 apparent. Text books on the main subject divi- 
 sions of the law often fail to treat the minute 
 subdivisions, or treat them so meagerly as not 
 to meet the requirements of the profession, for 
 it is in the narrow niches of the law that the per- 
 plexing questions are continuously arising. 
 Cyclopedias and general digests are merely cata- 
 logues of single instances. There is seldom to 
 be found in them a scholarly discussion of prin- 
 ciple. They state the law as a fact and, in most 
 
 i6 
 
instances, leave the lawyer without a reason for 
 the rule. Moreover, they more often fail to 
 cover the narrow niches of legal principle than 
 the text books. "We have never failed to find 
 " (in Mr. Freeman's notes) an exhaustive and 
 " luminous discussion in some one of your re- 
 " ports when a question of real difficulty was 
 " presented," says Judge W. J. McAllister, for 
 the Supreme Court of Tennessee. Judge N. M. 
 Neill, of the same court, writes : "Nothing that 
 " I could say would add anything to the high 
 " estimate with which Mr. Freeman's work as 
 " annotator is held everjrwhere." 
 
 In the American Law Review of 1898, Judge 
 Seymour D. Thompson made the following 
 statement regarding Mr. Freeman's notes in the 
 American State Reports : 
 
 "It is our deliberate judgment that if this 
 " enormous mass of annotations, written as it is 
 " in careful text-book form, built up with such 
 " consummate skill and such patient diligence, 
 " were collected, arranged, filled out where nec- 
 "essary, and printed in the form of an abridg- 
 " ment, no similar publication could hold the 
 " field. It would stand against every competitor 
 " and would not be subject to the reproach that 
 " its editors and publishers have stolen the works 
 " of jurist writers and used the works of such 
 " writers to destroy their own market." 
 
 Since 1898 there have been written and pub- 
 lished in the American State Reports twenty- 
 
 17 
 
five thousand pages of these annotations, which 
 "fill out where necessary" and make the abridg- 
 ment complete. 
 
 Indeed, if these notes or annotations were 
 taken out of the American State Reports, 
 grouped by subjects and printed alphabetically 
 by titles, they would run into more than forty 
 volumes and would, as stated by Judge Peter J. 
 Shields, of the Superior Court of California, 
 " constitute a voluminous and exhaustive, and 
 " at the same time, an accurate and concise ency- 
 " clopsdia of the law as recognized and admin- 
 " istered wherever judicial proceedings are con- 
 " ducted in the English language." 
 
 Again quoting from the critic prophet of 
 1873: "The condensed nutriment Mr. Freeman 
 " gives is rarely met with in recent books." 
 (Page 6, infra.) It is a great art to give suc- 
 cinctly in a few lines the full substance of what 
 often makes several pages of redundancy. Of 
 that art Mr. Freeman was the master. In his 
 ability to weave out of the tangled mass of par- 
 ticular instances a texture of regular pattern, 
 and to bring coherence out of confusion, he has 
 no equal. This was aptly illustrated by the dean 
 of a certain well-known Eastern law school in 
 his reduction of a ponderous legal fraction to 
 its lowest denomination. As the numerator he 
 had copied from a work on evidence the author's 
 definition of a Presumption of Law, and as the 
 denominator, he took the same author's defini- 
 
 18 
 
tion of a Presumption of Fact. The unreduced 
 fraction covered a full sheet of legal paper. 
 After several intermediate reductions he had, as 
 the lowest denomination, a few lines which gave 
 a clear, concise, complete statement of what was 
 confusedly stated in the unreduced fraction. 
 Pointing to the lowest denomination, he said: 
 "That is the way Mr. Freeman would have 
 stated it at first." 
 
 "I think he (Mr. Freeman) has no superior, 
 " and perhaps no equal, in his ability to analyze 
 " cases, and note the principles of law to be de- 
 " duced from the vast number of judicial deci- 
 " sions issuing from the courts of the United 
 " States and England," says Judge C. A. Woods, 
 of the Supreme Court of South Carolina. 
 
 This power of analysis was the distinguishing 
 characteristic of his work. He would examine 
 an hundred cases on a topic of law, and, in his 
 analytical mind, they were segregated and classi- 
 fied as they were examined, and the result was 
 a concise and lucid statement of the principles 
 involved. To him the work of distinguishment 
 and differentiation was easy, while to another 
 legal mind there were, in the same hundred 
 cases, irreconcilable confusion of principle and 
 contrariety of decision. All his work bears wit- 
 ness that to him the law was a second nature. 
 When one considers that there are two hundred 
 and forty volumes in the American Decisions 
 and American State Reports, containing nearly 
 
 19 
 
forty thousand cases which give the strongest 
 judicial pronouncement to the legal principles 
 decided during one hundred and thirty-five 
 years of American jurisprudence, and more than 
 forty volumes of these notes, each line making 
 concise, lucid and luminous statement of legal 
 principle, something of the vast achievement of 
 this wonderful man dawns upon the mind. 
 
 Since the advent of the case lawyer, the mere 
 searcher of the catalogue of single instances, 
 rather than one who is, or seeks to be, master of 
 legal principle, the decadence of jurisprudence 
 has been marked. Perhaps the deterioration of 
 the law from a learned profession into a com- 
 mercial pursuit has had much to do with it. But 
 whatever may be the tendencies of the times, 
 really great legal minds are as much appreciated, 
 and more needed, to-day than ever before. Mr. 
 Freeman has done much to stem this tide of deca- 
 dence and uphold the standard of the law. 
 Where he has found the courts wrong in prin- 
 ciple, he has unhesitatingly said so, and instances 
 are numerous where his criticism of cases has 
 been followed as authority instead of the cases 
 criticised. Continual reading of literary classics 
 makes a cultivated and capable literary mind. 
 Continual reading of legal classics, or the using 
 of them in daily work, makes a cultivated and 
 capable legal mind. The monographic notes in 
 the American State Reports are legal classics. 
 
 20 
 
As yet nothing has been said of the personal 
 character of this great man. We let those speak 
 who were his life-long friends and associates. 
 The following excerpts from the resolutions 
 of the Sacramento County, California, Bar, 
 adopted May 17, 191 1, are a fitting tribute: 
 
 "His entire life was one of ceaseless industry. 
 " The amount of work done by him was pro- 
 " digious, and the ease and accuracy with which 
 " he accomplished it were among his distin- 
 " guishing traits. But his life of steady toil in 
 " no wise narrowed or hardened him. He at all 
 " times remained generous, cheerful and hope- 
 " ful, and took at all times an active interest in 
 " the affairs of his time. His views were pro- 
 " gressive ; he accepted the developments of 
 "progress with the confident faith that they 
 " could be and should be made to work out only 
 " human betterment. He was free from egotism 
 " and possessed of a natural diffidence which, 
 " sometimes misunderstood, made him appear to 
 " strangers to be distant, cold, and proud. Yet 
 " he possessed social talents of a high order, and 
 " to the fortunate few to whom he revealed him- 
 " self he disclosed a variety of interest, a depth 
 " of wisdom, a richness of humor, and a sympa- 
 ** thetic disposition both marvelous and charm- 
 " ing. With his friends he was the most agree- 
 " able, entertaining and loving companion. He 
 " was unspoiled by success and had that gentle- 
 
 21 
 
ness and simplicity which mark true great- 
 
 " ness. 
 
 "Abraham Clark Freeman was a man of great 
 " but quiet courage. The well-matured convic- 
 " tions which he possessed he was ready on all 
 " proper occasions strongly, but modestly, to 
 " assert and defend. All his writings disclose 
 " that he was master of a clear, elegant, and 
 " forceful expression. Few writers have equaled 
 " him in terseness and accuracy. With remark- 
 " able ease and readiness he would grasp and 
 " solve the most confused and apparently intri- 
 " cate questions, quickly stripping the contro- 
 " versy of non-essentials and disclosing the sim- 
 " pie principle involved. 
 
 "As a writer of law books, and an author of 
 "legal literature, Mr. Freeman stood in the 
 " front rank. High authorities have spoken of 
 " him as the most able law writer of his time. 
 
 "The value of the life work of this man cannot 
 " be overestimated. He was a strong factor in 
 " the reformation of the literature of the law, 
 " and a powerful influence for uniformity of 
 " law and procedure throughout the nation. 
 " His legal writings have been so voluminous, 
 " varied and accurate as to cover the entire field 
 " of Anglo-Saxon jurisprudence. His work has 
 left a permanent impression on social order, 
 " and helped to elucidate and simplify the prin- 
 " ciples by which men are held together in civ- 
 
 22 
 
" ilized society. His friends, those who best 
 " knew his power, would have liked to have seen 
 " him become a great judge, or placed in some 
 " conspicuous political position where his abili- 
 " ties would have been more noted and ap- 
 " plauded. But it was probably better that his 
 " great work should have been done as it was, 
 " quietly and inconspicuously, and in steadily 
 " helping to build strong and sure the founda- 
 " tions of society. He worked faithfully to the 
 " end and died quietly in his home in San Fran- 
 " Cisco on April ii, 191 1. 
 
 "The Bar of Sacramento, of which he was for 
 " so many years a brilliant ornament, and to 
 " many of Ayhose members he was a loving and 
 " helpful friend, offers this tribute to the life 
 " and labors of Abraham Clark Freeman. We 
 " offer his life as an example of great talents 
 " nobly used. We offer his work as a lawyer as 
 " a model and inspiration to the profession. . . . 
 
 "The splendid usefulness and simple dignity 
 " of this great man's life forbid further words 
 " of eulogy." 
 
 23 
 
KP 368 P85 L56 
 
 Author 
 
 Lennon, Hon Thos J 
 
 Vol. 
 
 Title Copy 
 
 Biography of Abraham C Freeman 
 
 Date 
 
 Borrower's Name