were on a basis of social equality and that the intention of the statute at issue in Plessy was as much to keep whites out of the black railway cars as it was to keep blacks out of the white railway cars.
Whether Brown was aware of these social facts prior to his retirement is not clear, although considering his familiarity with southern society it is difficult to believe he was completely naive. It is true, however, that after retirement he made special efforts to remain an active observer of the American scene and that he became more and more willing to express doubt concerning what had been done by the High Court during his tenure and with his approval.
During his retirement years Brown lectured and wrote extensively on such subjects as reform of the divorce laws, the new federal judicial code, and the legal problems presented by the coming of the automobile. In connection with the last topic Brown, like the old admiralty lawyer he was, favored the doctrine of comparative rather than contributory negligence in personal injury suits. Unfortunately, because of insurance company lobbying, his recommendation was not followed.
Brown maintained his interest in politics to the last. Although he was a Taft supporter he had "no fear for the safety of the country even with T. R. or Bryan," or even Wilson, by whom he was "charmed." He died in New York City, September 4, 1913, with his "great confidence in the ultimate good sense of the people" still intact.
The basic work on Brown's life is the very short but suggestive Memoir of Henry Billings Brown compiled by Charles A. Kent ( New York, 1915). Some of Brown's most important speeches are printed in various Reports of the annual meetings of the American Bar Association, especially for the years 1889, 1893, and 1911. Many of Brown's ideas are expressed by inference in his postretirement writings in 44 American Law Review 321 ( 1910) and 46 Ibid. 321 ( 1912) and 17 Yale Law Journal 223 ( 1908). The best secondary work placing Brown in the general context of the Supreme Court in the 1890s is Arnold M. Paul 's Conservative Crisis and the Rule of Law ( Ithaca, N.Y., 1960). Barton J. Bernstein 's articles in 47 Journal of Negro History 192 ( 1962) and 48 Ibid. 196 ( 1963) on Plessy v. Ferguson, although biased, contain useful criticisms of Brown's approach. As Professor Paul notes in Conservative Crisis, a full-scale biography of Brown is badly needed.