302 Mass. 625 (1939)
The Honorable Arthur Prentice Rugg, an Associate Justice of this court from September 26, 1906, until he became its Chief Justice on September 20, 1911, died on June 12, 1938, while still in office. A special sitting of the court was held at Boston on April 1, 1939.
At the opening of the court, Chief Justice Field stated:
Chief Justice Rugg long had looked forward to having a new court house for the use of the Supreme Judicial Court. He laid the corner stone of this building. However, he was not to sit here. But "we cannot dedicate -- we cannot consecrate" this room in any better way than by breathing a prayer that the spirit of justice which dominated him shall dominate the justices who shall sit here.
The Attorney General addressed the court as follows:
May it please Your Honors: The Bar of this Commonwealth have prepared a Memorial to the late Chief Justice Arthur Prentice Rugg of this court, which Memorial has been prepared by a committee composed of members of the Suffolk and the Worcester Bars, who are as follows: George K. Gardner of the Suffolk Bar and Edwin G. Norman of the Worcester Bar. I present the Memorial.
Arthur Prentice Rugg: A Memorial.
On June 12, 1938, Arthur Prentice Rugg passed from this life. Although his years had far exceeded those allotted to man by the Psalmist, and although the waning of his physical strength was apparent, his death brought to the entire Commonwealth, deep sorrow and a sense of irreparable loss.
E'en as he trod that day to God so walked he from his birth, In simpleness and gentleness and honor and clean mirth.
We are met to-day to acknowledge his devoted service to the Commonwealth and his notable contributions to its welfare. And we seek a place in the records of this court for a brief account of his life and achievements.
He was born August 20, 1862, on a farm in the town of Sterling in Worcester County. He was one of the five children of Prentice Mason Rugg and Cynthia Ross Rugg. His first American ancestor, John Rugg, came to Watertown in 1653 and afterwards settled in that part of Lancaster which later became Sterling. For five generations his descendants made their homes and reared their families in this neighborhood. Their support was gained by the unending toil of the New England farmer. Their lives were simple and unaffected, marked by honesty, industry, and thrift. Here Arthur Prentice Rugg in the sixth generation from John Rugg was born and grew to manhood. Here these elemental virtues became the framework of his character. From this boyhood environment, he learned the sin of idleness and the virtue of industry. He was in every sense a product of the New England countryside -- of the "rich and rural Worcester" county of Whittier's verse.
His education began with attendance at the District School. Then followed in orderly succession graduation from Lancaster High School in 1879, from Amherst College in 1883, and from the Law School of Boston University in 1886. He intended upon graduating from college to become a teacher; but, lacking the opportunity and influenced by reading the lives of Rufus Choate and Joseph Story, he began the study of the law. When, very shortly afterwards, a position as principal of Lawrence Academy in Groton was offered to him, he declined it, after his father had impressed upon him, in homely metaphor, that the plow ought never to be abandoned until the furrow was done. At no period of his education was his path made easy. He was never exempted from the sternness of hardship or the weariness of toil. He accepted with appreciation and used with thoroughness the educational opportunities which were offered him. He mastered and possessed himself of every subject to which he applied his mind.
He was admitted to the Bar in 1886 and at once took up the duties of citizenship and of his profession in the growing industrial community of Worcester. He confined himself to no specialty but maintained a general practice both as counselor and as advocate. Every problem was thoroughly mastered by study, reflection and the application of legal principles. Every case was tried with penetrating intelligence and argued with compelling earnestness and persuasive skill. In twenty years, with no aid whatever and depending solely on his character, industry, and professional attainments, he made himself one of the recognized leaders of the Worcester County Bar.
At the beginning of his practice he continued to reside in Sterling where he succeeded his father and grandfather as Moderator of the town. During this period he walked five miles every morning to take the six o'clock train to Worcester. In 1889 he moved his residence to Worcester and married Florence May Belcher, who brought to him the inspiration and happiness of an ideal home. He was elected to the Worcester Common Council and, -- at the end of his service, -- its President. From 1893 to 1897 he was Assistant District Attorney of the Middle District, and from 1897 to 1906 City Solicitor of Worcester, to both of which positions he was appointed by reason of professional ability alone. On September 26, 1906, at the height of an active and successful practice, he was appointed a justice of this court. On September 13, 1911, he became the fifteenth Chief Justice to serve under the Commonwealth's Constitution, and held high the honored tradition of that office for not quite twenty-seven years.
Every great career in our profession is inspired by a view of life and a conception of the nature of the law. Some have seen in the rules which we administer a manifestation of the eternal law of nature, determining -- with all the beauty of mathematics -- the inevitable consequences of every act. Some have seen life as a struggle for mastery in the field, in the market place, or in the courtroom, and have dreamed of law as a divine woman who keeps the lists and awards to knightly valor its deserved prize. To Chief Justice Rugg both these conceptions seemed unreal. He saw the Commonwealth as a community founded, developed and maintained by effort and its laws as institutions by which that effort was coordinated and directed to a common end. To him the body of New England precedent and custom handed down by spoken and written word through three centuries -- now sturdy with tradition, now yielding with surprising readiness to innovation -- furnished the medium in which his contemporaries struggled, and provided rules which, until modified in the light of new experience, must be observed. The austerity of his belief gave short shrift to any doctrine of the rights of man which was not also a doctrine of man's duties. Life, liberty, even happiness, were not only inalienable, but dearly bought. To him was as evident as to the men who gathered in the Mayflower's cabin that man has no power except to labor and no rights except the rights he earns. Every demand for freedom, every assertion of authority, was brought in his courtroom to this acid test. The office of District Attorney could be held only by one who discharged its duties. There could be no power to create voting districts except the power to solve the problem of apportionment put by the Constitution. No argument from convenience or from public interest could justify diverting a charitable foundation from the purpose of those by whose labor it was established. Even the rights of expression and religious freedom could exist only within the framework of the laws.
To describe Chief Justice Rugg's contributions to our jurisprudence would require a volume -- we can only suggest a few of the chapter titles here. He was called to the Bench at the beginning of a period of far reaching legislation, -- legislation which had to be gradually woven into the fabric of our common law. The workmen's compensation act of 1911 revolutionized the law of industrial accidents. In Gould's Case, McNicol's Case, and Keaney's Case, he laid the foundations of the judicial development of this statute. The growing mechanization of life was yearly making rest and recreation more imperative. In Stevens v. Rockport Granite Company he laid down the doctrine that a noise which broke the quiet of a summer resort might be a nuisance; in Inspector of Buildings of Lowell v. Stoklosa and succeeding cases he upheld the legislative power to enact zoning laws; in General Outdoor Advertising Co., Inc. v. Department of Public Works he rendered what is probably the first decision in this country that advertising on private property may be forbidden for the sole purpose of preserving the sightlines of a public park. The years following the World War were characterized by profound changes in our financial system, punctuated by a succession of bank failures, which made necessary the first extended interpretation of our banking laws. In Commonwealth v. Commissioner of Banks in re Prudential Trust Co., Commissioner of Banks, petitioner, in re Prudential Trust Co., and other cases he interpreted and applied these statutes in detail. Throughout the whole period of his judicial service the multiplication of boards and of commissions, and the ever expanding field of regulation by local and state officials gave rise in this Commonwealth, as in the nation, to a group of problems which are sometimes dealt with under the name of administrative law. Although this term will be sought in vain in Chief Justice Rugg's opinions, a substantial and luminous handbook on the subject could be constructed from this source alone.
Fourteen -- it least --- of his opinions are of lasting significance to the common law: -- Old Dominion Copper Mining & Smelting Co. v. Bigelow, in which he maintained the principle against the opinions of three of his own brethren and the unanimous opinion of the Supreme Court of the United States -- that a corporation could obtain redress from its promoter for a fraud practised on the original subscribers to its stock; Crocker v. Justices of the Superior Court, which affirms the Superior Court's intrinsic power to change the venue for the trial of an indictment; Berdos v. Tremont & Suffolk Mills, which expounds the effect of penal legislation upon the law breaker's civil liability in tort; Simmons v. Fish, which affirms the Superior Court's power to order a new trial upon limited issues if -- and only if -- the remaining issues appear to have been truly found; Bothwell v. Boston Elevated Railway, which affirms the constitutionality of the statute authorizing this court to enter final judgment in a case where a verdict should have been directed -- again contrary to the doctrine of the Supreme Court of the United States; Cheshire National Bank v. Jaynes, which holds that the defendant in foreign attachment may try the merits upon a special appearance to defend his property without submitting himself generally to the jurisdiction of the court; Friend v. Childs Dining Hall Co. and Ward v. Great Atlantic & Pacific Tea Co., both leading cases on the law of warranties incidental to the sale of food; Stiles v. Municipal Council of Lowell, which affirms the right of a civil servant to maintain a tort action against officers who attempt to remove him otherwise than in accordance with the law; Commonwealth v. McNary, which expounds the law of contempt of court in connection with the grand jury; Blankenburg v. Commonwealth, which established that there may be a writ of error to a probate court; Rudd v. Searles, which affirms the power of a testator to make his bounty conditional on the legatee's acquiescence in the probate of the will; Smith v. New England Aircraft Co. Inc., which illuminates the law governing flight above private property; and Newburyport Society for the Relief of Aged Women v. Noyes, which expounds the law governing contract to convey property inherited after the contract has been made.
His public service while on this court was not confined to the discharge of his judicial duties but extended into many fields. He found time to serve as trustee of Amherst College, Boston University, Clark University and the Massachusetts Institute of Technology. He served on the council of the American Law Institute. He was president of the American Antiquarian Society; vice-president of the Bunker Hill Monument Association; an honorary member of the New England Historical and Genealogical Society; and a member of the Massachusetts Historical Society and the American Academy of Arts and Sciences. He gave generously of his time and energy to the occasional orations with which he adorned the gatherings of his neighbors, and the meetings of his fellow alumni and of the Bar. He publicly eulogized an endeared office associate, and such distinguished lawyers as Lemuel Shaw, Abraham Lincoln, Willard Bartlett and Lord Reading. He spoke to the Commonwealth at the session of the General Court held October 20, 1930, in celebration of its tercentenary. He spoke to the nation at the session of the Congress of the United States held February 6, 1933, in commemoration of his friend Calvin Coolidge, President of the United States. Amherst College, Harvard University, Boston University, Williams College, Dartmouth College and Boston College each bestowed upon him its highest honorary degree.
Throughout this lifetime of service and of honor he remained the simple democratic citizen, the kindly neighbor, the cherished friend. His dignified figure and friendly face -- always quick to greet his friends and his acquaintances -- were familiar on the streets of Worcester. At his city residence and his farm in Sterling his friends were welcomed to the unaffected hospitality of a New England home. His marriage was made happy by four children. His widow and three children still survive. He was a member of the Worcester Shakespeare Club, the St. Wulstan Society, and the Worcester Bohemian Club, a group of men associated for good fellowship and the appreciation of literature and art. For many years he was a regular attendant and devoted member of the First Unitarian Church of Worcester. His favorite hymn, which closed his funeral services, voices what were perhaps the highest aspirations of his heart: --
Rise, my soul, and stretch thy wings,
Thy better portion trace;
Rise from transitory things
Towards Heaven thy native place!
Chief Justice Rugg's desk stands idle in the Worcester Court House. No longer will he take his seat on Redstone Hill while the sun sinks behind Wachusett and night, flowing up the Nashua Valley, darkens the Lancaster meadows to the east. His Commonwealth merges evermore into the nation. His church returns evermore to the church universal, bringing -- he would believe -- no unworthy gifts. The magicians of his generation have unchained giants who seem sometimes to have driven man from peaceful industry and to threaten a new twilight of the gods. Some of us, it may be, foresee the failure of his labor and the frustration of his hopes. Were he present today he would smile at these misgivings. He knew that it was barely two centuries and a half since the Lancaster meadows had been held against the tomahawk and the war whoop. He knew that in Sterling men had despaired of the Republic as lately as the year when he was born. He knew that the New England soil will tolerate none but the New England character; that here, at least, idleness cannot compete with industry nor error very long confront the truth. His life was no mere experiment; it was founded on the rock of faith. He believed that the Commonwealth possessed an immortal nature and that no man who truly served its life could fail. The justification of his faith is recorded in over one hundred volumes of the records of this court. So long as lives like his are remembered and held in honor, so long the Commonwealth and its justice will endure.
I present the foregoing Memorial and move that it be incorporated in the permanent records of the court.
Edward T. Esty, Esquire, addressed the court, as follows:
May it please Your Honors: The Bar of Worcester County naturally takes particular pride in the life and achievements of the late Chief Justice for it was in Worcester County that he was born, reared, practised his profession and made his home. It was in Worcester that he was most frequently seen, that between sessions of the court he did his daily work at his chambers in the court house, that he attended church, that he came into close touch with neighbors and friends, that he entered into the life of the community.
A much beloved teacher in Amherst College used to say, "It was not the little red schoolhouse, it was the old farm which gave men their start in life." It was on the farm that the late Chief Justice learned self-reliance, resourcefulness, thrift and industry, and laid the foundations of his character. As a student in Amherst College, he did not engage in athletics or in the extracurricular activities of the early eighties. He devoted himself to the main business of college life. One of his classmates said of him: "One thing always stood out conspicuously; his standard of honor was adamant. No one ever knew him to waver one iota from what he believed to be right, but if convinced that he was wrong, he was equally ready to yield."
In his professional life in Worcester he early showed those qualities which were to spell success in his profession -- ceaseless industry, thoroughness and integrity. Upon graduation from the Law School of Boston University he entered the office of the late John R. Thayer and five years later became his partner. The firm of Thayer and Rugg continued until his elevation to the Bench. He not only served in the Worcester Common Council and as Assistant District Attorney for the Middle District of Massachusetts, but for nine years was City Solicitor of Worcester. When he first was elected to that office he undertook with characteristic thoroughness an intensive and exhaustive study of municipal law and soon became a master in that field, acting as counsel for a number of towns in addition to the city of Worcester. He became a trial lawyer with few equals at the Bar of Worcester County and was enjoying a large practice when he was made a member of this court.
Others will speak of his contributions to the administration of justice in Massachusetts. His opinions, found in over one hundred volumes, or more than one third of the recorded decisions of this court, will stand as an imperishable monument to his greatness as a judge. The language of his opinions is simple and clear. They reveal a profound knowledge of the law, the incisive and logical thinking of a highly trained mind, the ability to disregard the inessential and the irrelevant, and to reach conclusions by clear and persuasive reasoning.
While he would generally be regarded as conservative, in many respects he was liberal. He was mindful, but not the blind follower, of precedent. He was a man of broad vision who understood quite clearly the need of the law to adapt itself to the needs of a constantly changing world. He was the embodiment of justice and the ideals of the law. He was sometimes referred to as the last of the Puritans. While conscious of the dignity of his office, he was always cordial, gracious and friendly. His family life was ideal. He was a devoted husband and father and had a great affection for young children. He took the greatest satisfaction and joy in the companionship of his young grandchildren. He was simple in his tastes, modest, scholarly and a constant reader. Although his duties restricted his social activities, in the informal fellowship of two small, partly dining and partly literary, societies, the St. Wulstan Society and the Worcester Fire Society, he was at his best. His contributions at their meetings showed the breadth of his literary tastes.
He was a regular attendant at the annual meetings of the American Law Institute in Washington. He there mingled freely and without restraint with the members. He seemed to be everywhere, acting as a gracious host in seeing that members had the opportunity of meeting each other.
He was a great admirer and intimate friend of Calvin Coolidge. They had much in common, their heritage and upbringing were not unlike, they both graduated from Amherst College and served together on its board of trustees. Upon President Coolidge's retirement to private life, the late Chief Justice persuaded him to become president of the American Antiquarian Society and upon his death succeeded him, a position which he held until his death. It was fitting that he was asked to deliver the memorial address before the joint meeting of the Houses of Congress upon the death of Mr. Coolidge. He referred to the silence of the former President in these words: - "This was one aspect of the shrewdness of his nature. No one understood better than he that the unspoken thought never wounds, never harms, never needs to be modified or withdrawn." It was commonly reported that at the time of the appointment of the late Chief Justice to the Bench his proud mother commended to her distinguished son the virtues of the unspoken thought in much the same language. The advice was always followed by him.
At a farewell dinner by the Association of the Bar of New York in 1919, in honor of the Earl of Reading, the Lord Chief Justice of England, upon the eve of his departure after his service in Washington as British Ambassador, the late Chief Justice was chosen to speak in behalf of the American Judiciary. In speaking of the duties which bring the highest challenge to both judge and lawyer he said: "They require of the judge perfect impartiality of temperament, a blindness to every consideration save that of the law by which he is bound. They exact a profound and accurate knowledge of legal principles. They demand wide acquaintance with men and affairs. The judge should be familiar with the secret springs which move men to action and which govern their conduct. His insight for the essential and the enduring should be keen and his discernment between the false and the true unerring. The wisdom of the market place should be his. Industry and the faculty of fine and sympathetic discrimination should be his handmaids. Quickness of apprehension and soundness of judgment should be his constant companions. Courage, steadfast and unflinching, should be his, which can withstand without a tremor not only the clamour of the many but the insidious influence of the powerful few. Capacity to express his views in words so clear as to be incapable of being misunderstood should be his."
These qualifications and more the late Chief Justice possessed in ample measure.
His life not only sheds lustre upon the administration of justice but serves as a source of inspiration to both Bench and Bar.
Bentley W. Warren, Esquire, addressed the court as follows:
May it please Your Honors: The Memorial which has just been presented to your Honors admirably sets out the career and character of the late Chief Justice. Its quality doubtless is due in part at least to the unmistakable characteristics of the man and the even tenor of his life, steadily progressing from one honor to another, all borne with inherent modesty, and from one responsibility to another, all discharged with unwavering fidelity and throughness.
The explanation of his characteristics and of the man himself, as known to his friends and the public, is to be found in his New England heritage, as related both to ancestry and to physical environment. How much the human product in New England is due to a background of generations of New England ancestors, in Rugg's case six successfully occupying the same farm, and how much to the rigors of climate and the niggardliness of soil of this section of the world, may not be clear. There can be doubt, however, altogether they have given rise to a race marked by sobriety, industry, thrift, reverence for things eternal, and self-reliance in things temporal. The Chief Justice manifested all these marks of his New England heritage from early boyhood to the day of his death.
Three New Englanders whom I have known -- and there have been many others -- have typified the New England character in their lives, which were in part contemporary during their active years. They were James J. Storrow, for years a leading citizen of Boston, Calvin Coolidge, a fellow alumnus of Arthur P. Rugg, and Rugg himself. All three were equally devoted, in widely different fields of endeavor, to the promotion of the welfare and progress of their fellow men. The title of Storrow's biography is "Son of New England." The biography of either of the others might with equal propriety be given the same title.
That Rugg was a son of New England is the key to an understanding of the man.
I first knew the Chief Justice, professionally and personally, at the beginning of the present century when he had already been City Solicitor of Worcester for more than three years, although still under forty years of age. In one case we were opponents; in the other I had a professional interest, although not technically associated with him, in the case. Each furnished opportunities to observe his method of work in the preparation and conduct of the case. His industry was indefatigable in mastering the facts and law, in exploring every argument not only on his own side, but equally every one which might be presented against him, and in preparing to meet it. This industry was exhibited by him throughout his professional life. It was what might be expected from a man who never shrank from a five-mile walk from his home to take a six o'clock morning train to Worcester preliminary to beginning his day's work in that city. Such thoroughness of method and the habit of judicially studying, the merits and defects of both sides of a case, which he continued after his appointment to this court, were of great public benefit in the administration of justice. To the extent of his ability -- and it was great -- he supplemented the efforts and cured the shortcomings of counsel for either side. No good case ever failed of due consideration at his hands because it was poorly presented.
Many of us like to feel that the long and successful history of Massachusetts justifies our belief in it as a model for the Union and is the realization of John Adams's ideal of a government of laws and not of men." A study of that history would almost surely demonstrate that this is due in no small measure to the unvarying recognition by the court, both in theory and in practice, of its obligation to fulfill its essential functions resulting from the assignment to it by the Constitution of its all-important duties and responsibilities. Thus it has contributed, as the years have passed, to the orderly and progressive development of our common law in protecting the rights and liberties, the peace and security and general welfare, of our people.
Many features of the judicial branch of our government, as represented in the Supreme Judicial Court, have promoted the development and the stability of its role of a balance wheel in the government itself. Two attributes of this court stand out preëminently. One is the practical life tenure of its members, imparting to the court a quality of permanence and continuity foreign to either the executive or legislative branches. The other is the rather unusual provision, in judiciary organization, for advisory opinions by the court to the executive and legislative departments of government. In submitting such opinions, greater freedom is possible in considering the questions of law involved, as the justices are unhampered by the principle early enunciated and always adhered to, that every presumption must be entertained in favor of the validity of any statute under consideration and that only the clearest reasons against its validity will suffice to set it aside. Moreover, a different situation is presented when the court is asked to give an abstractly correct advisory opinion as to the constitutionality of a proposed bill than when it is asked in a litigated case to hold invalid the provisions of a statute solemnly enacted by the General Court and first brought to the attention of the justices in a controversy between actual litigants and after rights have accrued and been exercised and duties and responsibilities have arisen under the provisions of that statute. The distinction between the two kinds of opinion is not unlike that governing the necessary degree of proof for the entry of judgment in a civil action and that required to warrant a verdict of guilt in a criminal proceeding. This flexibility possible in advisory opinions has without question headed off and prevented the enactment of many measures of doubtful constitutionality, which, nevertheless, had they been enacted, might, under the application of the principle just mentioned, have become imbedded in our statutory law.
It is of interest to study the record of the late Chief Justice in passing upon questions of constitutionality in advisory opinions and such questions in litigated cases. I have referred to him as a son of New England. Like most New Englanders, born and bred here, and with a background of several generations of New England forbears, he, could hardly be other than conservative. New England conservatives, however, are by no means reactionaries. Massachusetts was among the earliest, if not the very earliest, of the States to encourage construction of railroads, and later of horse railways, and later still of electric railways, to supplement horse and buggy travel. It was the first to set up a commission to regulate public service corporations. It was a pioneer in the adoption of the Australian ballot system, in the insurance of real estate titles, and in authorizing savings banks to engage in life insurance. It developed a most liberal and complete code of labor laws, which more selfish States, seeking sectional advantages, regarded as a warning, rather than something to be imitated.
Rugg was an outstanding believer in the governmental structure and institutions of this Commonwealth. He held a deep seated loyalty to the Massachusetts Constitution as the basis of that structure and the bulwark of those institutions. He doubtless felt, as many of his contemporary, and earlier, New Englanders felt, that it was better to accomplish any desired enlargement of governmental power by an amendment of the Constitution, adopted in the orderly way prescribed in that instrument, than to stretch its provisions through judicial interpretation merely to accomplish a little earlier an object which at the moment seemed desirable.
On the other hand, he felt an equally deep seated loyalty to the activities of that government manifested in the procedure and under the forms prescribed in the Constitution itself. With these two loyalties, not often conflicting, but to be independently regarded under different circumstances, he approached the consideration of questions of law addressed to the court for advisory opinions and of such questions of law arising in actual litigation. The results are significant and reflect his intelligent and discriminating reaction to the two sets of circumstances.
Without a complete and exhaustive examination of all instances of the two classes of opinions, it appears that he participated in approximately eighty advisory opinions. Of such of these as dealt with the constitutionality of proposed legislative measures, thirty-seven, or nearly half of the total, held that the measures submitted to the court were beyond the constitutional power of the Legislature to enact. On the other hand, in litigated cases in which statutes came before the court on an issue of constitutionality, so few as to be really negligible have been set aside. Indeed, it is probably the general judgment of the bar that an attack upon the constitutionality, or a defense based on the unconstitutionality, of a statute while Rugg presided over this court represented a last resort of a litigant. Whether this comparative immunity of enacted statutes is due to the winnowing out of doubtful measures through their prior submission to the analysis of the court in requests for advisory opinions, or whether it is due to the different rules applicable in consideration of constitutional questions in advisory opinions and in actual litigated cases upon enacted statutes, it must be c1ear that the provision for such advisory opinions has proved of great value to the orderly and constitutional exercise of the powers entrusted to the executive and legislative branches of the government.
How well the high reputation which the court has always enjoyed in the country was maintained during the Chief Justiceship of its late Chief was evidenced by some striking figures compiled only four years ago from the five then most recent volumes of reports of the courts of last resort in the forty-eight States. They show not only that the Massachusetts opinions were cited more than those of any other State, but that such citations exceeded by seventeen and one-half per cent the citations from the next highest State, which was New York. Evidence to the same effect is contained in Lawyers Reports, Annotated, and American Law Reports. Two hundred seventy of his opinions, which include twelve Opinions of the Justices attributed to him, are contained in this selected series of cases, surely a remarkable tribute from an independent source to the value and stimulating nature of the opinions written by Rugg.
These few statistics, and still more the admiration and affection in which he was held by the Bar during his twenty-seven years as Chief Justice, and the universal regret felt at his death, attest his fidelity to the traditions of this court and his success in handing on, unimpaired, to his successors its reputation, built by those who had preceded him and unfailingly maintained by his own great industry, learning, and passion for even handed justice.
Is not a great judge portrayed as one "that walketh uprightly, and worketh righteousness, and speaketh the truth in his heart"? Such was Arthur Prentice Rugg.
Frederick W. Mansfield, Esquire, addressed the court as follows:
May it please Your Honors: Since the Constitution of the Commonwealth of Massachusetts was adopted nearly one hundred sixty years ago, there have been fifteen Chief Justices of the Supreme Judicial Court.
In this roll from Cushing to Rugg, the names of many illustrious men have been impearled. It is to honor the last of these that we are gathered and to attest, as adequately as we may, the esteem in which we held him -- the last in point of time, but not in achievement.
For Arthur Prentice Rugg was a very great Chief Justice. Different men have different gifts. Many of the distinguished men who have graced this august tribunal as its Chief have acquired fame which has extended beyond the narrow confines of our small, but great Commonwealth. Some of them were called to preside over the judicial destinies of the nation and in that field have attained national -- even international -- fame. But some of them, who by the vicissitudes of fortune have been denied that culmination of their judicial careers, have won as lasting and pervasive renown as their more favored brethren.
Chief Justice Rugg was one of these. Although his elevation to a higher bench at times seemed imminent, he was destined to complete his life work in a circle, smaller geographically, but not less great in its power to influence juridical thought and to mold judicial opinion.
All of our Chief Justices -- as indeed their associates -- have been held in reverential esteem and respect by Bench and Bar and people. Some of them have been held almost in awe. But Chief Justice Rugg claimed more than esteem and respect. He had our affection as well. For he was not a stern and austere judge. He was full of human kindliness of spirit -- a warm-hearted, lovable man who exuded a beneficent sympathy which fell benignly on all those about him and upon all who came within the charmed circle of his personality. An upright man, a man of impeccable character who softened with human understanding the strict neutrality of the impartial judge.
The trembling and fear of the beginner at the Bar dissolved when he appeared before this well loved man. For his kindly soul shone in his countenance and the warmth and sympathy of his ready smile calmed the troubled spirit of the tyro; and many a veteran of the Bar, recalling embarrassed moments of his early practice, has heartfelt reason to rise up and call him "Blessed."
I think this was his most endearing attribute, but he had many. As a legal craftsman, his work is unexcelled and in lucidity of mind, cogency of phrase, happiness of diction, aptness of words, his opinions are models of clarity of thought and comprehensive grasp of legal principles.
While we mourn his passing, we are comforted by the thought of his long and useful life, the eminence of his career and the heritage that he leaves, not to his dear ones alone, but to his native State and her citizens.
We will long cherish his memory and the poignancy of our loss will be tempered in the afterglow of his sweet nature and the radiance of his ready smile. His power and his charm have builded for him a monument that will endure forever.
Chief Justice Field responded as follows:
Mr. Attorney-General and Brethren of the Bar:
It is in conformity not only with tradition but also with the demands of our minds and hearts that the court unites with the bar in tributes of respect, admiration and affection to the great Chief Justice who has gone.
Arthur Prentice Rugg, the fifteenth Chief Justice of the Supreme Judicial Court, died June 12, 1938, in the seventy-sixth year of his age, having been born August 20, 1862. Until about a week before his death he was engaged actively in the work of the court. He was the seventh Chief Justice to die in office. He had held the office of Chief Justice since September, 1911, about two months less than twenty-seven years. Previously he had held the office of Associate Justice for almost exactly five years since his appointment in September, 1906, when he was forty-four years old. When appointed Chief Justice he was the junior Associate Justice. The period of his service on the court -- nearly thirty-two years -- was longer than that of any other justice except Justice Wilde, and the period of his service as Chief Justice was longer than that of any other Chief Justice except Chief Justice Shaw. During his term of office as Chief Justice eighteen different men sat with him as associate justices and he fell only a little short of having presided over three wholly different courts, composed, respectively, of his seniors in age, his contemporaries and his juniors. Many members of the Bar had practised before no other Chief Justice of the Supreme Judicial Court. The comparatively early age at which he came to the Bench and his long service thereon, particularly his long service at the head of the court, gave him full opportunity to demonstrate his exceptional judicial qualities. Years before his service ended he had become, for citizens of the Commonwealth, a living symbol of justice according to law.
The judicial work of Chief Justice Rugg was by no means limited to writing opinions but, as is ordinarily true of a judge of an appellate court, his written opinions constitute his preëminent contribution to jurisprudence. They will be found in over one hundred volumes of the Massachusetts Reports -- about one third of the entire number of such volumes. His first opinion expressing the judgment of the court in a decided case was in Forbes v. Keyes, 193 Mass. 38, his first such opinion as Chief Justice was in Ferron v. King, 210 Mass. 75, his last in King v. Boston, [300 Mass. 377,] decided May 26, 1938. As an Associate Justice he wrote two hundred forty-six opinions expressing the judgment of the court, and as Chief Justice, two thousand six hundred ninety-nine such opinions, a total of two thousand nine hundred forty-five. He wrote only four dissenting opinions as Chief Justice, and none as Associate Justice. Moreover, eighty advisory opinions, or answers to requests for such opinions, in which he joined when Chief Justice, presumably were written by him. No other justice has approached him in the number of opinions written. In this respect his nearest competitor is Chief Justice Shaw, to whom about twenty-two hundred opinions are credited. Such a number of opinions, including many in important and difficult cases, could not have been written by the late Chief Justice even with his facility in writing, his learning and experience, if he had not devoted himself ceaselessly to the task. His industry has become proverbial. Of course the extent of his contribution, by virtue of his opinions, to what he used to describe as the "visible fabric of the law" cannot be measured by their number alone -- impressive as it is. Their quality and scope must he considered. It is, however, not an exaggeration to say that very nearly the entire body of the law of the Commonwealth as declared by the court can he found stated -- in many aspects first stated -- in opinions written by him. And an extraordinarily large proportion of the cases in which the opinions were written by him have become leading cases for this Commonwealth -- many of them for a wider field. There is ground for the belief that the judgments of few, if any, judges of State courts are as frequently cited as are his.
It would he vain to attempt to summarize the contribution of Chief Justice Rugg through his opinions to the law of the Commonwealth, beyond stressing the extent of that contribution and indicating some of its elements. And elements not mentioned may be even more deserving of notice. Every branch of the law within the jurisdiction of the court has felt his influence. He wrote opinions in all fields, sharing with his associates in the routine work of the court. He took upon himself, however, almost exclusively the preparation of opinions in certain classes of cases. He wrote most of the opinions on questions of practice, and through these opinions materially affected the administration of all the courts. He also wrote the opinions on constitutional questions. Probably more such questions were presented by requests for Opinions of the Justices than in actually litigated cases, but in either event the view of the court or of the justices would he expressed by him. His attitude on such questions was definite and consistent. He recognized the broad sweep of the grant of legislative power. Statutes should be struck down only when clearly in violation of constitutional guarantees. But he stood firm against the infringement of rights so guaranteed. And no one could be more insistent than he upon the maintenance of the principle of separation of powers and the consequent independence of the judicial department. This attitude, however, did not prevent him from giving full effect to legislation providing for fact finding by administrative bodies, so long as the tribunals were impartial and there was adequate opportunity for hearing and for review by a court of the law involved in a decision made. More than any other man the late Chief Justice has been the interpreter of the Constitution of the Commonwealth in its present form after the changes effected therein as a result of the constitutional convention.
To nearly as great an extent as in cases involving constitutional questions, Chief Justice Rugg wrote the opinions in cases involving other questions of public law or affecting governmental rights. Such cases not only seemed to him to deserve the particular attention of the head of the court, but also fell within the field of his experience when at the Bar. Moreover, ordinarily, he would write the opinion in a case involving a novel point of law irrespective of the nature of the question. Many such new questions arose while he was Chief Justice out of changing conditions of life or the broadened scope of legislation, and in dealing with them he made notable contributions not only to the law of the Commonwealth but to the law of the country. His opinion in the case of Smith v. New England Aircraft Co., Inc., 270 Mass. 511, dealing with the law of aviation is one example out of many. He was not hostile to the broadening scope of legislation. Indeed he regarded substantial change in the law as falling within the province of the Legislature rather than of the court. In an address delivered before the General Court on the occasion of the Tercentenary Exercises he recognized that in legislation "new occasions have . . . taught new duties" and expressed the opinion that the General Court had avoided "the ever-present danger of too much legislation." It was his constant aim to interpret and apply statutes in such a manner, consistent with other law, that the legislative purpose would be accomplished. Some of his ablest and most useful work was done in building up coherent systems of law on statutory foundations. The law of workmen's compensation is an instance. In a survey of the history of the operation of this law for the quarter century of its existence, prepared for submission to the late Chief Justice, one who had been connected with the drafting of the law and with its administration from the beginning stated, "you have my undying gratitude for your splendid work because the compensation act, through your interpretation, has lived up to everything expected of it." His thorough discussion, in the course of numerous opinions, of the law governing banks and trust companies, also had a statutory background.
In his opinions Chief Justice Rugg attained a high and strikingly uniform standard of excellence -- a standard not reserved for his great opinions alone. His opinions, as well as his occasional writings and addresses, disclose that he was sensitive to literary values. But he was not inclined to risk clarity or accuracy for epigram or ornament. His words were chosen carefully to express his thought with precision. There was full citation of authorities. Ordinarily his opinions were restricted to matters essential to the decision, though these matters were developed fully. He regarded statements in opinions as authoritative, and carefully avoided making any unnecessary statement which might hamper the court in reaching a correct decision in a later case after more complete examination. He believed that it was for the public interest that there be continuity in decision and statement of the law -- that precedent should be followed -- but he interpreted precedents very narrowly and was not unwilling even to overrule or modify if the need was demonstrated. Fundamentally, for him, the law was moral and practical. He was never fully satisfied with a decision, though it was amply supported by authority, if it failed to meet his standards of honesty and of decency or was contrary to the dictates of common sense. The soundness of a proposition was to be tested by its effect in application rather than by its place in a theoretical system of law. He never forgot that the purpose of law and the courts was to serve the people. But, as the Memorial suggests, his emphasis was upon man's duties rather than upon his rights.
Selections have been made in the Memorial, with true insight, of specially important opinions written by the late Chief Justice. Opinions are included which were written at various stages of his career, among them his noteworthy opinion in Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, written when he was an Associate Justice. At this early stage of his career his judicial ability was clearly manifested. His reputation as a great judge would be secure if it rested solely on the opinions listed in the Memorial. But the list might be greatly extended. And a complete statement of his contribution to the jurisprudence of the Commonwealth would require reference to whole fields of law developed by him.
Writing opinions in cases in which he states the judgments of the court, however, is only a part of the work of a Chief Justice. He, as well as other justices, must devote much time and thought to the decision of cases in which the opinions are written by others and to constructive criticism of such opinions. Chief Justice Rugg's ability and thoroughness in the performance of these functions were notable. No one who has not sat with him in the consultation room can have full realization of his capacity to lay hold, quickly, upon the significant factors of a case and to apply his experience, learning and power of reasoning to the solution of the problems involved. These qualities made him very influential in the discussion of a case. Yet he was open-minded, eager to learn the views of his associates, and ready to adopt them, even if contrary to his original views, when convinced that they were correct. Though an opinion was written by another justice, it represented also the Chief Justice's considered judgment -- often reached after much study. Moreover he had administrative duties not inconsiderable in extent. In the performance of these duties -- including presiding at sittings of the full court -- he acted with strict impartiality, with care and courtesy, always insistent that, while the work of the court should proceed with reasonable expedition, the rights of all litigants should be fully protected.
Arthur Prentice Rugg was preëminently a judge. To him a judge's gown was a well-nigh sacred symbol. He was a member of the Supreme Judicial Court for more than half of his mature years. He conceived of the court as a single entity having a continuous existence apart from the individual justices who composed it. He revered it as an institution founded to establish justice and having had a long and honorable existence. He was jealous of its reputation, its character and its dignity. Everything pertaining to its history was of interest to him. And he thought of membership in the court as requiring a high standard of conduct and complete devotion to duty. If possible, his ideal for the Chief Justice was even loftier. This position he held to be one of peculiar dignity and responsibility. Indeed it is not wholly clear that he regarded as promotion an appointment of a Chief Justice of this court to be an Associate Justice of the Supreme Court of the United States. He lived up fully to his ideal for a Chief Justice. His conscience was acute: its dictates were always heeded. He did not flinch at the call of duty however distasteful. He had courage of a high order. Even in personal appearance and bearing he was "every inch" a Chief Justice. Yet with all his honors and the universal respect in which, deservedly, he was held, he continued to be modest as to his personal attainments, simple, though dignified, in manner, and friendly in all human relationships. To his associates he was more than courteous. Their welfare was of deep concern to him. He was affected by their joys and by their sorrows. Honors which came to them he appreciated on their accounts and also because, in his thought, honorable recognition of himself or of his associates reflected honor on the court itself.
It is now apparent that the years before Chief Justice Rugg was appointed to the court constituted an excellent period of preparation for his life work. Qualities then displayed and developed brought success in the wider field. His experience in city government and in practice aided him in his judicial work. But a broadened horizon brought no weakening of loyalties. He was always devoted to the town of his birth, spending much time there, and writing a delightful historical sketch of the town. His love of the land, of country life and of the beauty of the countryside never failed. He aspired to visit all the towns in the Commonwealth, particularly the more remote. He valued highly the public school. And no college ever had a more loyal alumnus than did Amherst College in Chief Justice Rugg. He served the college on its board of trustees, as he also served Boston University, the institution at which he studied law. He remained true in his allegiance to the city where he established his home and practised at the bar. And his early interest in history continued throughout his life.
Though Arthur Prentice Rugg was preëminently a judge and his life before he became a judge truly preparatory to his judicial career, he was more than a judge and for that reason the greater judge. The breadth of his interests is not fully reflected by his activities for in his devotion to his judicial duties he rigidly limited his other activities. The Memorial recites some of these other activities -- including addresses on notable occasions -- and recites also honors that came to him in the form of elections to learned societies and honorary academic degrees. He had the satisfaction of knowing that his worth was appreciated by his fellow citizens. Though his judicial career was limited to the Commonwealth, he was a national figure. Two dominant qualities in his character are too personal to be discussed but must be mentioned. He was devoted to his family. And, being fond of little children, he found great happiness in his grandchildren. Also he was deeply religious. He was a regular attendant upon services of worship and took an active interest in the affairs of the church with which he was affiliated. He respected the religious convictions of others however different might be the form in which they were manifested from that to which he was accustomed. And even his extreme reticence could not conceal his innate spiritual quality. He "wist not that . . . his face shone."
Highly fortunate has been the Commonwealth which had for so many years in its highest judicial position such a man as Arthur Prentice Rugg. And Mr. Valiant-for-truth "passed over, and all the trumpets sounded for him on the other side."
The motion that the Memorial be spread upon the records of the court is granted.
The court will now adjourn.
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