358 Mass. 850 (1971)
A special sitting of the Supreme Judicial Court was held at Boston on January 18, 1971, at which a Memorial of the late Justice Arthur Easterbrook Whittemore was presented.
Present: Chief Justice Tauro, and Justices Spalding, Cutter, Spiegel, Reardon, and Quirico.
Robert H. Quinn, Attorney General, addressed the court as follows:
May it please the court: We gather here in memory and affection for The Honorable Arthur Easterbrook Whittemore, late Justice of this court, to express our appreciation of his life of service -- as citizen, soldier, lawyer and judge, -- to his country, to the Commonwealth and to this court, and so that to judges and lawyers who come after us, Whittemore, J., may be more than a name on an opinion of this court.
Judge Whittemore was born in Reading, Massachusetts, on June 3, 1896. His father Frederick Ellsworth Whittemore was principal of Reading High School. His mother was Edith Lillian Easterbrook, formerly of Weymouth.
In 1904, when Judge Whittemore was eight, his father was appointed Superintendent of the South Hadley-Granby Schools in the Connecticut River Valley and the family moved from Reading to South Hadley.
Judge Whittemore attended the public schools of the district and in 1913 was graduated from South Hadley High School as President of his class.
The Judge's father had long intended him for Brown University, the father's own Alma Mater. However, sometime prior to Arthur Whittemore's graduation from high school, a book salesman who was calling upon Superintendent Whittemore sold him on the idea of sending his son to Harvard. So, in September, 1913, Arthur Whittemore set out from South Hadley, not to Providence but to Cambridge.
In June of 1917, Arthur Whittemore received from Harvard College a Bachelor of Science Degree in Chemistry, Cum Laude. He then intended to spend his life as a chemist. Two months before his graduation however, the United States had declared war upon Germany and her allies. Graduate Whittemore, in a tradition still observed in this country, spent his first two post-collegiate years, not in the laboratory coat of a chemist, but in the uniform of a Lieutenant in the Army of the United States as a member of the American Expeditionary Force to France. He served principally in Company B, 168th Regiment, 42nd Rainbow Division. With his Company, he took part in the offensives of Aisne-Marne, Saint Mihiel and Meuse-Argonne. He was wounded twice but fortunately was able to finish his service with Company B. It was a measure of Arthur Whittemore, the man and the leader, that, upon his separation from the Service, the soldiers who served under him presented him with a watch which he wore for the rest of his life.
War changed Arthur Whittemore, and upon his return to civilian activity he chose to devote his life to the law rather than to cheinistry.
In September, 1919, he entered Harvard Law School and was graduated in 1922. He sufficiently distinguished himself in law school to attract the interest of a noted Boston law firm which he joined in 1922.
Attorney Arthur Whittemore was to remain with this firm for the next thirty-three years, becoming a partner in 1930.
If the law be a jealous mistress, it was not Arthur Whittemore's whole life. In 1924, he married Suvia Lanice Paton of Hartford, Connecticut, a graduate of Smith College. In 1925, a daughter, Suvia was born; in 1928 a son, Arthur; and, in 1933, another daughter, Elizabeth.
Judge Whittemore brought his bride to Hingham, Massachusetts, to a Cape Cod House which had been built in 1750. This was to be their home for all their life together. His home was second only to his family in his private life and over 45 years that Judge Whittemore lived in Hingham, he delighted in modernizing and expanding this venerable New England dwelling. He was devoted to his garden and particularly to the cultivation of flowers.
In his 33 years as a practitioner, Arthur Whittemore distinguished himself as an advocate, counsellor and mediator. Others who will join with me today in expressing our esteem for Judge Whittemore will speak, at more length and from the intimacy of their association, of his extraordinary talents as attorney and jurist, of his outstanding legal abilities at the bar and on the bench. It is particularly appropriate, however, that the Attorney General of the Commonwealth note at least some of Judge Whittemore's contributions to the public service made while he was still at the bar.
In 1942, Arthur Whittemore was appointed a Special Assistant Attorney General by my predecessor, Attorney General Robert T. Bushnell, to represent the Commonwealth in the reorganization of the Old Colony Division of the New York, New Haven and Hartford Railroad. Judge Whittemore served in this capacity until 1944.
Two Presidents of the United States -- President Roosevelt and President Truman -- sought out Arthur Whittemore to serve on various Presidential Commissions concerned with transportation matters.
In 1951, this court chose Judge Whittemore (and George A. McLaughlin, Esquire, of Boston) to serve as its counsel in a delicate and important investigation by this court into allegations of misconduct in office on the part of certain public officers. It was typical of Judge Whittemore's devotion to the public interest, as well as that of his colleague, that each refused any compensation for their months of work on behalf of this court.
Judge Whittemore's interest in the public good was not, however, confined to Hingham -- where he served as town counsel and later as moderator for 16 years from 1939 to 1955 -- nor to this Commonwealth, in all his service recounted here, nor even to this country. During World War 11, he and Mrs. Whittemore took into their home for four years two English children who were evacuated from Great Britain during the worst days there of the "Blitz".
His interest in international affairs led him to become a member, and later Director, of the Foreign Policy Association and at one time Chairman of the United Council on World Affairs. Neither was Arthur Whittemore afraid to speak out on the unpopular side of an issue when he thought he should. In 1954, for example, when an unfortunate tide of fear was running strong against his position, Arthur Whittemore, in a letter to the Boston Herald, argued that the decision to bar Atomic Physicist Robert Oppenheimer, who was charged with "Leftist" sympathies, from participation in scientific work in behalf of his country, was a greater loss to the United States than any danger from Oppenheimer.
In 1956, in his wisdom, anticipating a problem which so vexes us today, Judge Whittemore addressed a gathering of Greater Boston Boy Scout leaders in part as follows:
"Supporting young men in decisions honestly held even when non-conforming is important work in citizenship training. It is an axiom of the Democratic system but in the 1950's it sometimes appears forgotten by some people that only if full examination of all views is had will the better course be discovered and error exposed."
In 1965, addressing a bench and bar meeting he said that a man's right to have a lawyer present when questioned by police was a simple reiteration of traditional constitutional liberties and that the police were not handicapped by court decisions emphasizing the rights of a suspect.
It was a further mark of Judge Whittemore that his first law clerk as a member of this court was a black lawyer, one of my own law classmates, a young man who has continued to demonstrate the wisdom of Judge Whittemore's choice by his subsequent, notable career in government and philanthropic service.
The capstone of Arthur Whittemore's career in the law was, of course, his appointment to this court by Governor Christian A. Herter, in October, 1955. Judge Whittemore was a worthy successor to Judge Henry T. Lummus, whose seat Judge Whittemore assumed.
If a note of personal remembrance may be pardoned, in 1955, 1 had the good fortune and great privilege to become law clerk to another distinguished and beloved member of this court, The Honorable Harold P. Williams.
During the months that followed Judge Whittemore's appointment, I came to know him not only for his legal gifts but for his humanity. If there is one word which aptly describes Arthur Whittemore the man it is "kind". He was a kind man, a gentle man in the root meaning of that term, but a gentle man whose gentility was born of strength. There are those who have described him as Lincolnesque and he was of course a tall man -- but never aloof. I have heard it said that his wry humor -- like Lincoln's -- broke the tension of many a taut moment in the courtroom or at the bargaining table. It was an apt coincidence that Judge Whittemore's town was Hingham, the first home town in the new world of the Lincoln Family.
Judge Whittemore passed to his eternal reward, untimely and unexpectedly for us, on Wednesday, October 1, 1969, at his home in Hingham. He had just returned from a trip with his beloved wife, to Mexico and was looking forward with his usual eagerness to resuming his seat on the bench on the following Monday, when the October sitting of the court was to convene.
He is survived by his widow, who still lives in the home on Gardner Street in Hingham which Arthur Whittemore so treasured; by his son Arthur Paton Whittemore of Marlboro, Vermont; by daughters, Mrs. Richard M. Judd of Marlboro, Vermont, and Mrs. Robert MacArthur of Princeton, New Jersey; and by six grandchildren.
For my vale to The Honorable Arthur Easterbrook Whittemore, I borrow what Longfellow wrote on the passing of Charles Sumner:
"Were a star quenched on high For ages would its light Still traveling downward from the Sky Shine on our mortal sight.
So when a great man dies For years beyond our ken The light he leaves behind him lies Upon the paths of men."
On behalf of the bar of the Commonwealth, I respectfully move that this Memorial be spread upon the records of the court.
Robert W. Meserve, Esquire, addressed the court as follows:
The long existing practice of this court to recognize the dedicated service of its members brings us here this morning to speak briefly of our memory of Arthur Easterbrook Whittemore, a Justice of the Supreme Judicial Court for fourteen years and one of those of whom we may well say with Ecclesiasticus, "These were honored in their generations, and were the glory of their times."
I am told that it is the practice of our English brethren to select the members of their judiciary, even of its appellate branches, exclusively from the ranks of their barristers -- the only trial lawyers of the principal English courts -- in the belief that the particular experience of a barrister should qualify him above others to discharge the duties of the judicial office. In the United States we have not hesitated to depart from this practice. This is only partly because our bar has not, in the past, been so highly specialized as to be formally divided between solicitor and barrister, as the English bar has been. Here, at least, it has proved true, particularly in appellate courts, that many judges, whose practice was generally not in the area of litigation, have proved to be effective members of the bench. If, however, one were to seek justification of the English system amongst recent judges of our Supreme Judicial Court the contributions to its work which were made by Mr. Justice Whittemore would, I am sure, come to mind.
By far the greater part of Arthur Whittemore's working life as a lawyer was spent in the preparation and trial of contested matters. For about thirty-three years -- from the time of his admission to the bar in 1922 until his elevation to this court in the fall of 1955 -- with such practitioners of the trial and appellate art as Edward F. McClennen and Jacob J. Kaplan as mentors and partners, Arthur Whittemore acquired a well deserved reputation at the bar as one skilled in advocacy.
Within the general classification of litigation Arthur Whittemore's activity ranged widely.
As Town Counsel for his beloved Hingham and as Special Counsel for other municipalities, he became skilled in many areas of public law, particularly in the field of zoning, where he tried or participated in the trial of landmark cases in what was, at the beginning of his career, a new field of municipal law. The record of that work may be found in some of the frequently cited cases of this court, particularly Caires v. Building Commissioner of Hingham, 323 Mass. 589. And he also worked in other areas of public law -- as the Attorney General has mentioned, as a Special Assistant Attorney General in charge of matters concerning the first reorganization of the New Haven and the reorganization of the Old Colony Railroad; and as a member of fact finding boards appointed by the President under the provisions of the National Railway Labor Act.
His practice in the trial of matters before administrative bodies, particularly the Interstate Commerce Commission, the Securities and Exchange Commission and, in the Commonwealth, before the Appellate Tax Board and the Department of Public Utilities, was extensive.
Contested issues arising in the general field of corporate law, contract interpretation, minority stockholder rights, trademark and unfair competition, as well as eminent domain proceedings, for example, were also frequently the subject matter of complicated litigation in which Arthur Whittemore acted as skilled and able counsel at the trial level and before this court; while the judges of the Federal courts witnessed his work in the trial of matters related to the Federal Securities Act and in the handling of extended and complicated antitrust cases, particularly in the motion picture industry. He tried many highly technical matters before arbitrators. Perhaps the best known to the public of his matters arose out of his appointment by this court with another of its distinguished counsel to investigate allegations of misconduct by certain of its attorneys and by public officials.
It would be an over-simplification, of course, to think of Arthur Whittemore's legal work before appointment to the bench as solely that of court room counsel. He was often consulted by substantial clients in relation to business problems, removed from the area of litigation, and his opinion in such matters was generally highly regarded. Much of his advisory work, of course, did involve the avoidance of controversy and of litigation.
Before his appointment to this court he had served for many years as a director of two substantial manufacturing corporations and as trustee of a publicly held investment fund.
His well deserved reputation for fair dealing and clarity of thought was such that he was often employed to mediate matters where other counsel had proved unable to do so, and was often able, to effect a wise settlement of a dispute by the application of his ability to convince others, including his own clients, to do the fair thing. Quite often, particularly during World War II, he was called upon to sit as an arbitrator in matters affecting the national interest.
And, as with many other successful advocates, Arthur Whittemore found himself often called in by other lawyers to handle their contested matters at the trial or appellate stage. As a trial lawyer, Arthur Whittemore was a moral power, a force in the court room, subtle and wise yet courageous and frank. His essential intellectual honesty was easily seen by jury and judge alike, and it was obvious to all that his court room weapons were those of the advocate and not those of the assassin. I am sure many members of the bar can, in their memory see him now -- a man of strikingly Lincolnesque appearance, tall, slender, intense and vital; often successful in bringing victory out of apparent defeat; courteous and understanding with a truthful, if adverse, witness but the terror of the would be trimmer or liar; coherent, logical and forceful in his brilliantly phrased argument to court or jury. He early learned, and never forgot, the art of grasping the essentials of a problem and of making simple and appealing that which was complex to others.
Arthur's interest in Boston Bar Association matters was evidenced by his service on its Council and, as a lawyer, he was a faithful participant in the work of the American Law Institute. Such activities, of course, were customary for leaders of the bar.
This, then, is, in brief summary, a recital of what Arthur Whittemore brought to this court as legal preparation and experience for his work there. The whole bar can bear witness as to how well that experience enabled Mr. Justice Whittemore to perform his duties on this bench, and, I believe, one of the members of this court will comment further on his judicial work.
But any discussion of Arthur Whittemore's career, whether as a lawyer or as a judge, would miss the point of his great success as a man and as a citizen if one were not also conscious of the many areas of his interest and activity which did not involve the practice of law at all.
So far as I know, Arthur never aspired to hold paid political office but, as a citizen, he was intensely interested in political matters, particularly in the area of foreign policy. As a director of the Foreign Policy Association and of the United Council on World Affairs, as a participant in the work of the International Friendship League, and, perhaps most of all, as a private citizen, corresponding with Senators, Secretaries of State and Governors, he exerted his remarkable powers to protect the real international interests of his country as he saw them with remarkable clarity.
In the area of good citizenship, too, one cannot ignore Arthur's long, steady and uncompensated support of the work of the Massachusetts Memorial Hospitals, of which he was a trustee for over fifteen years, and his trusteeship of the Community Center in Marlboro, Vermont, where he made his summer home.
There in 1946, Arthur Whittemore became one of the founders of Marlboro College and, as Chairman of its Trustees and otherwise, its affairs remained one of his principal concerns for almost two and a half decades.
Arthur was, then, generally, a good citizen, in the American legal tradition, as well as a skilled advocate when he became a member of this court.
On both maternal and paternal sides Arthur came of families long resident in New England and long part of the American experiment. In that tradition he was, at bottom, an optimist, who believed that men of honesty and good will, free to criticize and to try to correct imperfections, could deal effectively with the problems of this, our country -- problems whose existence he would never ignore, but problems to which he was sure there was an answer which diligent work and intelligent attention might find. He believed, therefore, that it was the duty of every citizen to work diligently toward the evolution of an ever better social organization -- and he practised that belief. He was always a true participant in the democratic process and his entire life -- as lawyer, judge, educator, and citizen -- evidenced the effectiveness of that participation. He deserved well of the state.
It is a pleasure to join in the motion of the Attorney General that this Memorial be spread upon the records of this court.
Thomas L. P. O'Donnell, Esquire, addressed the court as follows:
In 1924 Arthur Whittemore came to Hingham with his bride to live in an old house in what he called "the country end of town". There he and his beloved Suvia reared their children and enjoyed their garden and the nearby orchard and woods. It was his home for the rest of his life.
In another sense, all of Hingham was Arthur Whittemore's home. There was scarcely any aspect of the life of the Town that was not enriched by his beneficent influence. He served as a member of the Town Advisory Committee for eight years. He was chairman of the board of trustees of the Hingham Institution for Savings. As president of the trustees of Derby Academy for many years, he guided that venerable institution out of the Great Depression, while nourishing its ancient academic and spiritual values. He was Town counsel in the grand manner. With unstinted energy and devotion, he was both an ardent advocate for the Town in courts and administrative tribunals and a wise counsellor to the Town and those who served it not only on purely legal questions, but also on important matters of policy and judgment.
It was as moderator for sixteen years, however, that Arthur Whittemore left his most profound and enduring mark upon Hingham.
It has been said that a moderator should be "a man experienced in affairs, skilled in parliamentary law, tolerant yet strict, patriotic without being partisan . . . a very wonder of a man."
Arthur Whittemore was a very wonder of a moderator. No one who ever attended a town meeting he conducted could forget the skill, the sensitivity, the humor -- and most of all, the unflinching integrity -- with which he guided this institution of free government which he so deeply cherished. One longtime voter and friend described Arthur presiding at town meeting this way: "He would restate a complicated article in simple terms and as the oratory began, settle back on his high stool, his warm smile embracing the entire hall, intervening only at the precise moment the audience wanted him to. Once when an aged and voluble citizen became confused, Arthur leaned over and said, 'Why don't you pause a moment and catch your breath.' The trust in him was palpable." The warmth and force of his personality infused the entire proceeding and made effective what Chief Justice Rugg once called "the matchless mechanism of the town meeting."
Arthur Whittemore was moderator from 1939 until his elevation to this court in 1955, a period which spanned two wars and saw the rapid growth of suburban towns including Hingham. Throughout that period of stress and change, he never feared to look ahead, to grasp the challenge of what was to come. Rather he sought to channel change in a rational and constructive way. In the sombre days of early 1942, he wrote for the 25th Anniversary Report of his Harvard Class of 1917 of his thoughts on "how the world can be decently and fairly ordered." He said: "The world is being completely made over and it appears that all of us will be very busy; some at difficult but interesting new work". Mr. Meserve has spoken of Arthur's work as a citizen keenly interested and actively involved in affecting the course of his country in the affairs of a changing world. In Hingham, it was Arthur Whittemore, more than anyone else, who preserved the character of the Town through these extraordinary war and post-war times, precisely by his deep perception of the currents of change and his ability to accommodate change to the core of verities to be preserved. He did this, not only through his conduct of town meeting, but perhaps even more by the careful wisdom of his appointments to the Advisory Committee and other Town committees and boards. Years before "participatory democracy " became a common slogan, Arthur believed that Town committees and boards should be broadly representative of the citizens of the Town -- newcomers as well as natives and he sought the ablest people from all groups. The tradition of unpaid public service has flourished in Hingham largely due to the standard represented by his appointments and his own shining example.
It was a happy coincidence that there was a special town meeting in Hingham on September 26, 1955, the day on which Governor Herter nominated Arthur Whittemore as Associate Justice of this court. Toward the end of that meeting, the Chairman of the Board of Selectmen was recognized and announced the appointment to the assembled voters. There was no stenographic record of the meeting but the Town Clerk's businesslike summary tells us well enough what happened:
"This announcement brought forth an ovation of many minutes, a tribute to Mr. Whittemore and approval of his appointment."
This account seemed to imply that the approval of the Town was required to release Arthur from his service as moderator so he could accept appointment to the court. Such was the sentiment of the meeting that night.
Although it is not contained in the official record, I can remember that Arthur then thanked the citizens of Hingham for entrusting to him the most honored position in which until that day, he had ever been called upon to serve.
Judge Whittemore's interest in Hingham did not diminish during his service on this court. He continued to have an intense, if private, concern for the welfare of the Town. He regularly attended town meeting and was not averse to speaking his mind when an issue arose that seemed to him to make a difference to the future of Hingham.
The last time Arthur Whittemore ever addressed a Hingham town meeting was in 1967 when he rose to support the establishment of the Lincoln historic district, so-called because it embraced that area of the Town where over 300 years ago the ancestors of Abraham Lincoln first settled in the New World. It was a fitting occasion for Arthur Whittemore's unintended valedictory in a forum he had graced and molded -- and loved -- for over forty years. First, because the issue involved the preservation of the character of Hingham, than which few things were more dear to his heart. Secondly, because Abraham Lincoln was not just an abstract, historical figure to Arthur Whittemore. He was rather an ideal embodiment of the democratic faith, and it was often remarked that Arthur's appearance and manner were reminiscent of Lincoln. Finally, it was fitting because, in rebutting the argument of opponents that the measure would destroy individual freedom, Arthur made a characteristic declaration of his confidence in the ability of free men to govern themselves. He summed it up in these few words:
"I don't give way to anyone in standing for individual liberty. That is what I was brought up on. And the reason it works is that we talk things over together and do what seems right under the circumstances."
Thus, at the end he had said it all. Individual liberty works in a democracy because we talk things over together and do what seems right under the circumstances. This was the meaning of what Arthur Whittemore had been doing all his adult life -- as a lawyer, as a judge, and perhaps especially as the moderator and first citizen of Hingham.
Carl Sandburg has said of Lincoln: "None threw a longer shadow than he." Occasionally a town, like a nation, is blessed to be served by someone who stands tall enough to cast a long shadow beyond his office and his time. In Hingham, the long shadow of honor and concern has been cast by Arthur Whittemore. For what it has been and is today, Hingham owes more than it can measure to its legendary moderator and most distinguished public citizen.
Justice Spalding, speaking for the court at the request of Chief Justice Tauro, responded as follows:
Mr. Attorney General and Brethren of the bar:
I speak for the court in stating that it joins with the bar in its tributes of respect and affection to our late colleague, Arthur Easterbrook Whittemore. Our purpose in this Memorial was aptly expressed by one of the speakers at the Memorial to Mr. Justice Dolan: "The purpose . . . is not to mourn because one we loved now is dead, but to voice our happiness that once he lived."
Justice Whittemore was appointed to this court on October 11, 1955, by Governor Christian A. Herter. He first sat with the court on November 7, 1955, and served until his death on October 1, 1969. Although Justice Whittemore came to the court without prior judicial experience, he brought with him an experience which was no less valuable: that gained from. more than thirty years of active, varied practice before the courts, State and Federal, and numerous administrative boards and commissions. He was truly an accomplished barrister, trying not only his own cases but many referred to him by other lawyers. He evinced an enthusiasm for his new work that was infectious. I recall his saying to me when he joined the court, "Having spent my professional life up to now at the bar, I look forward to devoting the remainder of it to my work on the bench; it is something new and different and presents a most interesting challenge." Justice Whittemore never lost that enthusiasm.
His first opinion was in the case of Goodwin v. Riordan, [333 Mass. 317], and his last was in the case of Commonwealth v. Cutler, [356 Mass. 245]. All told, he wrote 721 opinions for the court, including a number of so called rescripts which do not bear his name. In addition, he wrote or joined in twelve dissenting opinions and three concurring opinions. His cases touched almost every field of law within the court's jurisdiction. A selection of his most significant opinions is not easy, for many of them dealt with important questions. Among those best known is Krebiozen Research Foundation v. Beacon Press, Inc. [334 Mass. 86], a case relating to the enjoining of the publication of defamatory matter. Another significant case is Attorney General v. President and Fellows of Harvard College, [350 Mass. 125], involving the construction of various trust provisions concerning the Arnold Arboretum. Other significant opinions come readily to mind. For example, in the law of trusts there are the cases of Second Bank-State Street Trust Co. v. Pinion, [341 Mass. 366], and Old Colony Trust Co. v. Silliman, [352 Mass. 6]. The first made an important change in our law with respect to so called "pour-over" trusts. The second formulated helpful rules for the guidance of trustees under discretionary powers to determine income and principal. In Commonwealth v. McHoul, 352 Mass. 544], his opinion made a very important contribution to the criminal law in stating a new test of insanity. This has become a leading case on the subject in this Commonwealth and has been cited frequently by other courts. One other case that should be mentioned is Massachusetts Bay Transportation Authority v. Boston Safe Deposit & Trust Co. [348 Mass. 538], where several important questions involving the then newly created Authority were dealt with.
Justice Whittemore's opinions were concise, dealt with the point at hand, and rarely, if ever, contained unnecessary matter or dicta. His style was clear and unostentatious, avoiding the clever epigram or glittering phrase. His documentation was never excessive or pedantic. The readers of his opinions are left with no doubt as to the holding of the case and do not have to wade through a lengthy opinion to discover it. In dissent he was never abrasive or caustic.
This court has never been composed of specialists, which is quite as it should be, considering the many branches of the law with which we have to deal. Nevertheless, each judge brings to the court his own particular experience in one or more fields of the law, which often proves to be most helpful. Although Justice Whittemore was not a specialist in any one branch of the law, his practice brought him frequently into the field of public law. His many years as town counsel for Hingham and his participation in cases before public boards and utility commissions gave him a background which was not only very useful in his own work but in the work of his colleagues.
The writing of opinions, of course, is an important part of the court's work. But there is another phase of its work that is of no less importance: that which takes place in the consultation room and in studying the opinions of one's colleagues. Both in the consultation room and in the many informal discussions that constantly take place among the judges, Justice Whittemore made contributions of great value. His capacity for rapid analysis was remarkable. In a few words he would cut through the underbrush of a case and reach the core of the issue involved. His comments and criticism concerning his colleagues' opinions were invariably helpful and were always given in a friendly, courteous manner, without the slightest trace of intellectual arrogance. When criticisms or suggestions were made touching his opinions, he received them cheerfully and with an open mind. He had no pride of opinion and was ever ready to listen to the views of his colleagues.
Others have told you about the wide range of interests of Justice Whittemore and I will not repeat them. There can be no doubt that the breadth and diversity of these interests (the town of Hingham, Marlboro College, and foreign affairs, to mention a few) were reflected in his judicial work. A few years after Justice Whittemore joined the court, I recall a leader of the bar saying to me, "I like Judge Whittemore's opinions; they have a statesmanlike quality." This, I submit, was a very apt characterization of his work.
I am sure that Justice Whittemore would have concurred with the oft quoted statement of Mr. Justice Brandeis that "Stare decisis is usually the wise policy because in most matters it is more important that the applicable rule should be settled than that it be settled right." I believe, too, that he would have concurred in the view of another Justice of the Supreme Court that "the peculiar boast and excellence of the common law" was its capacity for growth and adaptation. To Justice Whittemore these were not inconsistent concepts, for he believed that there must be stability and certainty in our law, but he would not exalt these attributes by making a fetish of them. Thus, as in some of his opinions to which I have referred, he adapted, modified or restated old rules so that they could become viable principles suitable to our times.
I have dwelt on Justice Whittemore's qualities as a judge, but his qualities as a friend and colleague were no less important. To drop into his office and to chat about shop or some other subject was always a rewarding experience, for he brought a background of practical wisdom and a range of knowledge to any subject under discussion that was most stimulating. He took his work seriously but never himself. Thus conversations with him were invariably leavened by the light touch. And when his assistance was sought, as it often was, he gave it willingly and cheerfully. Such, then, were some of the qualities of this kind, sensitive and knowledgeable man whom we honor today. The memory of our many years of association with him is something we shall ever cherish.
The motion that the Memorial be spread upon the records of the court is granted.
The court will now adjourn.
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