306 Mass. 622 (1940)
The Honorable Edward Peter Pierce, an Associate Justice of this court from December 9, 1914, until November 1, 1937, died at Brookline on June 22, 1938. On June 8, 1940, a special sitting of the full court was held at Boston, at which there were the following proceedings:
The Attorney General addressed the court as follows:
May it please Your Honors: The Bar of the Commonwealth has prepared a Memorial to the Honorable Edward Peter Pierce, late a justice of this court. I have the honor in their behalf to present the Memorial.
Edward Peter Pierce: A Memorial.
Edward Peter Pierce served with distinction as an associate justice of the Supreme Judicial Court for twenty-three years. At the time of his appointment to this court in December, 1914, he had already been for fourteen years a justice of the Superior Court. His resignation as an associate justice of the Supreme Court on November 1, 1937, fifty-nine years after he had started the active practice of the law, and less than two months before his eighty-fifth birthday, terminated a judicial career of thirty-seven years.
From the bench, he had seen a generation of lawyers leave the field and a new generation fill the ranks of the old. During the entire professional life of most Massachusetts lawyers who were active when Judge Pierce retired, he had been a forceful figure on the bench of our highest courts, an able judge, and a vivid personality.
After his retirement from the court, he continued to serve the Commonwealth as a member of the Judicial Council until his death on the twenty-second of June, 1938.
He was born in Templeton, Massachusetts, on the twenty-eighth of December, 1852, the only son of Peter Pierce and his wife Mary Burney. The time and place of his birth and the forces of his inheritance played an important part in his life and went to the making of his mind and character before he began to shape them for himself. The traditions of generations of sound Massachusetts and Scottish forebears were his. The old New England ideal of a social, political, and economic democracy founded upon ability, work and thrift pervaded his early environment.
He was a direct descendant in the tenth generation from John Pierce of Norwich, England, who came to Watertown in 1638. Judge Pierce's ancestors fought in the Colonial Wars. His great-great-grandfather John Pierce was a Minute Man in the Revolution, as were this John Pierce's brothers, Nathan and Captain Solomon, and their cousin Colonel Abijah Pierce, the latter a great-grandfather of the Honorable E. Rockwood Hoar, a justice of this court.
Judge Pierce's mother, of Border English and Scottish descent, was born in Dumfries, Scotland, the daughter of Samuel Burney, of Carlisle, England, and his wife Ann Blackhall. Her Scottish connections, included people of position and ability. She died shortly after her son's birth.
He was then fortunate in coming under the affectionate care of his father's mother, Sophia (Anderson) Pierce, the widow of Peter Pierce, who had been a succesful farmer and country merchant in Templeton and a man of some local consequence. She was a woman of clean cut, decisive speech, independent personality, natural pride and a discriminating taste. Her grandson retained a vivid memory of her small, erect figure, vitally alive in black dress and old fashioned white cap, and her sitting room with its dark mahogany, its shining pewter, and old banjo clock. He was thrilled by her stories of early days -- of the Revolutionary War, of the Indians, and of the time, as recently as 1783, when there was a town bounty of forty shillings on each wolf's head. And as he grew in understanding she fostered in him her own regard for learning and instilled some of her intense love of New England -- a New England in which the influences of the eighteenth century were still strong.
Until his tenth year, when his father died, Judge Pierce's boyhood was spent in Templeton -- then, as now, a quiet hilltop village in the rolling, wooded country of northern Worcester County. Monadnock looms to the north, and the Peterboro hills stretch along the New Hampshire horizon. There are vistas of Wachusett, and of white farmhouses and weathered gray barns with their fields and upland pastures.
After his father's death, he lived with his mother's brother John Burney, an influential citizen of Fitchburg, a director of one of the principal banks and an officer and director of substantial companies in Massachusetts and New Hampshire. His uncle's integrity and courage, his dignity and simplicity, were important influences in the development of the growing boy.
Living in Fitchburg as a member of his uncle's small family, he attended the public schools there. In 1873 he was graduated from the Fitchburg high school and entered Harvard College with the class of 1877. At the close of his second college year he went to the Harvard Law School from which he graduated in 1877. His degrees from Harvard University were Bachelor of Laws in 1877, and Bachelor of Arts in 1902 as of the class of 1877.
Upon his admission to the Bar in Worcester, at the 1878 April term, he started practice in the growing manufacturing city of Fitchburg. Four years later, he formed the firm of Pierce and Stiles, with offices in Fitchburg and Gardner. His partner, the late James A. Stiles of Gardner, had been his classmate in college. Their partnership lasted until Pierce's appointment to the Superior Court, and their friendship until Stiles's death in 1924.
In a city like Fitchburg during the closing decades of the nineteenth century, there was time for combining active professional duties with study and reflection, general reading, and outdoor life. Judge Pierce was occupied with work that he keenly enjoyed and had the satisfaction of knowing was well done. He became one of the outstanding members of the Worcester County Bar, which included men of recognized ability and promise, among them the future Chief Justice of this court, the late Arthur Prentice Rugg. When the State board of bar examiners was created in 1897 the justices of the Supreme Judicial Court appointed Pierce to that board, and he was its first secretary. He served as city solicitor of Fitchburg for fourteen years, elected in 1886 and reelected each year, until his appointment to the Superior Court.
As a lawyer, he was a sound adviser, and in both civil and criminal cases an able advocate. For him, the profession of the law was not simply a way of making a living. He loved the law for its own sake and gave to it the best that was in him.
He was appointed to the Superior Court by Governor Crane in April, 1900. The wisdom of his appointment was speedily manifest. He was a splendid nisi prius judge, and as a chancellor a fit successor to Judge Hammond and Judge Sheldon. His elevation by Governor Walsh to the Supreme Judicial Court was confirmed by the Council on December 9, 1914, and he sat with the court at Boston on that day. His first published opinion in this court was filed December 31, 1914, and appears in volume 220 of the Massachusetts Reports at page 71. His last opinion was filed on September 17, 1937, and is printed in volume 298 of the Reports.1
It has frequently been said that the real memorial of a justice of this court lies in his opinions. It is not practicable here to analyze or discuss in any detail the opinions Judge Pierce wrote for the court, and they do not tell the whole story of his contributions to the work of this court. They number thirteen hundred and one, and are contained in seventy-nine volumes of our Reports.
In his opinions one observes a definite method. They are characteristically short. He had a dislike for mere rhetoric and for unnecessary discussion of authorities. He believed in a full statement of the relevant facts. He had a faculty for reducing difficult legal propositions to plain English. There was no groping for principles; instead, a sure handling of them. The directness and effectiveness of his style, and the elimination of collateral issues, combined to produce an opinion that is deceptively simple, one that does not reveal the learning and careful thought involved in its preparation. This simplicity was the result of his clearness of apprehension and of his ability to work swiftly and accurately.
He had a fine legal mind. He was a real student of the law. To him the law was not merely a body of precedents to be followed blindly. Nor was it an opportunist device to be used for accomplishing what might seem to be desirable at the moment. It was a system of principles, founded on the rock of justice and upon the traditional ideals of our free and constitutional government. And he believed it was the duty of the courts to give assurance that their decisions are based upon those fundamental legal principles. Recognizing that changes in the law are inevitable, he felt that when needed they should be made by the Legislature, not by the courts.
It was from this point of view that he approached a legal question, and this view gave zest to the studies that he kept up through life. He read eagerly the latest decisions, reviews and treatises, as well as the classic authorities; he welcomed the chance to go through the lecture notes of a 1aw school student; and he kept notes of his reading.
To this court, Judge Pierce brought not only wide learning in the law, made readily available by an unusually retentive memory, but also a breadth of view and a rich store of practical experience and common sense. His desire to do justice according to the law, his eye for the relevant and essential, his powers of concentration and application, his sympathetic understanding, were among his outstanding characteristics as a judge. His judicial work was the absorbing element in his life. He found his greatest happiness and satisfaction in his service on this court.
He loved equity work. His mind and temperament naturally predisposed him to equity jurisprudence and the problems presented in equity practice. When he was presiding at an equity session of the Supreme Judicial or Superior court, he was never a mere moderator. His knowledge of controlling principles, his power of analysis, his ability to combine the practical with the theoretical, gave him a gift of quick and sure decision which will live long in the memory of the Bar.
In attempting to touch upon the personal impressions Judge Pierce made on his contemporaries, to record something of that highly composite product which constitutes a human being, is is easy on this occasion to say too much or too little.
He had in full measure that indefinable quality we call "personal charm". His erect, alert figure, keen gray-blue eye, ruddy complexion, and distinction of appearance, arrested the attention; his quick smile and interested, friendly manner were most engaging. On the bench this charm of personality bore the added grace of judicial dignity.
He had force of character and force of mind. In the expression of his views he was direct and outspoken, but always with a regard for the rights and feelings of others. He had a staunch sense of duty and great courage. He had kindliness, tolerance, faith in human nature and an instinctive liking for his fellowman. He was warmly human. Young and inexperienced lawyers found him unfailing in courtesy and kindly consideration. There was no condescension or conscious affability about him. He did not pretend to any superiority either in learning or in mental equipment. His distinctions were borne with modesty. One who was close to him has said, "He died, as he lived, thinking of and for others rather than of himself."
His friendliness and humor made him a delightful companion. He possessed one of the rarest of social gifts, the power of being himself in any company. His interest in politics was that of a well informed, patriotic citizen, but he was in no sense a politician. He was a Unitarian by early association and temperament. In matters of the spirit he was reserved; it seemed that the deep springs of his emotional nature were the more powerful for being restrained.
His life was simple. He was devoted to his family, as they were to him. No picture of him would be complete that did not emphasize this.
He was a born fisherman and a skilful one; he was fond of hard physical exercise; and his many fishing and camping trips in this country and Canada were a source of intense enjoyment to him, as were the anticipation and memory of them. His memories of the northern wilderness he referred to with feeling in his last days. He chose for his summer home a place on the coast of Maine overlooking the sea and the islands of pointed spruce. The surroundings were invigorating, spacious, and peaceful. The scent of bayberry and spruce mingled with the smell of salt water. From his boyhood days in Templeton, he had been sensitive to Nature in her varied manifestations. This response was not aesthetic only; it was a deeper emotional experience. A thrush in the woods at the edge of evening, the crimson and gold of maples in the warm sunshine of an Indian Summer day, never failed to stir him.
One of the unusual things about Judge Pierce was the exceptional length of years through which the effective period of his life was extended. Always energetic and buoyant, direct and quick in thought and action, so he continued to the time of his last illness. One never considered his age. It was in his eighty-fourth year that he caught his last brook trout and it was still a delight to him to do so. He played a good game of billiards until a few months before his death. The vigor that characterized his whole personal and professional career was notably preserved in his eighties. Chief Justice Rugg, writing to congratulate him on his seventy-ninth birthday, said: "Measured by years you have reached an unusual age. No member of our court during my time has remained at his post at seventy-nine. Without having looked it up, it is my impression that one has to go back to Shaw to find a parallel. It is not so remarkable to continue to carry the burden at that age as it is to retain the erectness of figure, the alertness of physical action, the complexion and the other appearances characteristic of less than three score. It is quite superfluous to remark that intellectual virility is in keeping with vitality of body."
In Judge Pierce's eighty-sixth year, his long career of public service and of usefulness came to the inevitable close. As judge and man he had the respect and the affection not only of his associates and of the Bar but also of the community at large. An editorial in a Boston newspaper on the occasion of his death reflected the public opinion:
"Gentlemen of the type of the late Edward Peter Pierce, retired justice of our Supreme Judicial Court, give tone and substance to a bench and quietly enrich the community. He was a thoroughly good lawyer, with a wide knowledge of adjudicated cases, an unusual skill in equity procedure, which he loved, and broad familiarity with the historical development of the common law. He was extremely helpful to his colleagues in of-the-bench discussions, and his extraordinarily alert mind and facility in stating his views orally and and in writing were enviable.
"He was impressive in appearance and looked every inch the judge of a famous supreme court. His dignity was not the dignity of stodginess, taciturnity and aloofness. He was fond of human beings, buoyant in nature, and as vigorous in his physical movements as in his thinking. He did his full part in making the decisions of our Supreme Judicial Court respected even beyond the boundaries of Massachusetts. He left on the high bench one of those intangible contributions which, in their totality, tend to make the Commonwealth of Massachusetts what the founders designed it to be."
On behalf of the Bar of the Commonwealth I move that this Memorial be spread upon the records of the court.
Frederic H. Chase, Esquire, addressed the court as follows:
May it please Your Honors: Few lawyers can hope to leave a permanent record of their professional work. That privilege and responsibility is given only to those eminent members of the bar who are called to sit on courts of last resort. In this Commonwealth their number is less than one in a thousand. Of such the moving finger which "writes; and having writ, Moves on"; leaves on the pages of our Reports their exposition of the legal doctrines which guide us. That indelible record, once written, speaks for itself and for the judge who wrote it. Measured by that standard the great merit of Mr. Justice Pierce as a member of this court will always be recognized.
Judge Pierce was not a phrase maker. He made no attempt to develop a distinctive literary style. His opinions are not epigrammatic. He never strayed beyond the confines of the facts of a case into illustrative examples or argumentative suppositions. When he once said, in answer to a contention that a former adjudication of the court was not binding in the case at bar, that "the conclusiveness of such a decision is not determined, nor is it enlarged, limited or circumscribed by the exposition of principles contained in the opinion, by the logic of immutable fact or by any fallacies of induction," he might well have been describing his own opinions. They leave no room for misunderstanding or speculation. They cannot be misunderstood or be given a double meaning. They stand firmly as sound and clear declarations of applied principles. But it is regrettable, although inevitably it must be so, that the lawyers of future generations who read his words will not find in them anything of what is uppermost at this moment in the minds of all who knew him. His opinions do not disclose the warm and vivid personality of the man who wrote them. The words "affection" and "respect" express feelings which may be separated or commingled. We respect a man for his integrity, industry and sincerity; a lawyer for his learning, his ability and honesty; a judge for all of these qualities. But when thousands of members of the bar after a judge's death rise to express not only their respect but their affection for him, the supreme tribute to his memory is paid; and that, we may be sure, is the tribute which the bar now pays to the memory of Mr. Justice Pierce.
However true it may be that his highest title is written in the records of this court, it is none the less true that, his contemporaries remember him as well for the work he accomplished in the Superior Court as for what he did here. There, the full strength of his vigorous and alert mind found ample opportunity for full play. In the efficient performance of the functions of that court a judge should not only know the law, but should have the ability quickly and accurately to apply it. The ever varying questions which come unceasingly to that tribunal must be dealt with promptly. For the most part they cannot be reserved for reflection. The wheels of justice there must turn with the stream. If they cease to move the flow is clogged, and an ever rising pool of litigation mounts above, pressing to be released into the stream-bed which lies below. Particularly is this true of the vast number of motions and procedural matters which have to be dealt with as cases go through the Superior Court. Judge Pierce was a master in dealing with these. His singular ability in this respect was so clearly recognized by his associates that he sat in the jury waived and equity sessions of the court more frequently than did any other judge. There, in the motion session, where without pause question follows question in infinite variety, he was at his best. There was nothing laborious about his approach to issues of fact or of law. His mind never strayed into side issues or wandered in the field of speculative possibilities. His thought invariably went straight to the point, and his quick perception saved the bar many long hours of tedious explanation and argument. His great store of learning was always at ready command. When counsel had finished their arguments he was ready with his decision. He seldom reserved judgment on a motion. At the end of a day's session, the interlocutory matters which had been in order before him had been disposed of, and cases were ready for further progress toward final disposition.
However much we may try, it is impossible to portray in words the visual image which glows in our minds of the vitally sentient Judge Pierce as we saw and knew him. Everyone here is now recalling the crisp tones of his voice, his keen glance, and the warmth of his friendly interest. If each of us were to make this an occasion for personal reminiscence we might perhaps leave some semblance of the figure which lives in our memories, but even then all that we could say would fall far short of giving the complete picture we would like to draw.
One who knew him first from the bar, and afterwards as an associate on the bench, will never forget his kindness to a fledgling assistant district attorney who was taking his first monthly term of jury trials before him in Suffolk. The young lawyer was inexperienced, awkward and nervous. Yet in some indescribable way, and certainly without the slightest show of favor or indulgence, Judge Pierce made him feel a sympathy and interest which encouraged and sustained him. Later and closer relationship as colleagues on the Superior Court proved that this friendliness had not been assumed out of pity or compassion. It then took the form of generous and wise advice. His clear mind was always at the service of his associates, and his aid in solving perplexing problems was often sought and always granted. Positive as his views were, and quickly given, he had no pride or stubbornness of opinion. Although he was always ready to be helpful, he never obtruded his counsel upon others before it was asked. There was nothing of pomp or circumstance about him. He was modest, and shrank from ceremony and display. When the judges of the Superior Court were discussing the question of wearing robes he opposed the proposal. He said that he had often thought that he could do better work as a judge if he could sit down in a small room with counsel and parties and discuss a case around a table without formality. Notwithstanding this, however, he accepted the traditional ceremonies of court procedure, and upheld the dignity of the court in all respects and upon all occasions. In appearance and demeanor he graced and adorned the tribunal of which he was a member. Off the bench his bearing was unaffected and informal. The cordial frankness of his manner invited confidence and relieved embarrassment.
One morning he happened to be in the courtroom before court opened when a young lawyer who had never appeared before him, and did not know him by sight, was vigorously condemning the conduct of his opponent in a matter which was to be heard that day. When the 1awyer learned the identity of the judge he went to him in confusion and dismay, to explain and apologize. "Oh, never mind that," the judge replied, "that wasn't the judge who overheard what you said. It was only someone who happened to be in the court room at the time."
With all his mental keenness, he was not impatient of others who were not similarly gifted. He was charitable toward everything except insincerity. He sympathized with those who were in trouble. While passing through a corridor of the court house one day, he found an attorney in great distress of mind. Inquiry revealed that the lawyer had just been criticized severely by another judge in the presence of his client. "Isn't it sad," said Judge Pierce in telling about it to one of his associates, "that as a result of a judge's hasty words this lawyer will probably lose his best client." Once, when counsel was using a record of conviction to harass a former transgressor unduly in cross-examination Judge Pierce interfered to prevent further humiliation of the witness.
These are little things, trivial perhaps in themselves, but they are significant. They could he multiplied almost indefinitely from the recollections of other members of the bar. But they tend to indicate, as only small incidents can, the kindly and sympathetic nature of the man who was the judge. There was nothing cold or hard about him. He had a warm and tender heart. An appraisal of his written work upon the bench does not include these human characteristics. His accomplishments there, however enduring, are impersonal and disinterested. But we cannot let this moment pass without a reference to those inherent qualities which endeared him to all who knew him, and will live vividly in their minds as long as memory lasts. He was greatly loved, and, greatly will be missed.
Owen A. Hoban, Esquire, addressed the court as follows:
May it please Your Honors: How vividly at such a time as this do the dead live in our memories and affections! What sacred testimonials to human worth and merit are silently contributed by those who sit in this solemn session of the court! The little that can be said by a memorialist on this occasion is but a slight matter in comparison with the unspoken tribute of relatives, friends and associates. They and they alone know of those precious and lovely qualities of heart and mind which are the truest interpretation of the character of him whose life and services we honor in these proceedings.
On behalf of the Bar of Worcester County, as a neighbor and a friend, I come to second the motion for the adoption of the Memorial to the late Justice Pierce which has just been presented to the court.
We were born in neighboring towns in Northern Worcester County, were familiar with the same beautiful hills, roamed the same countryside and were acquainted with the same people. After he had moved away from Templeton, Fitchburg, and Worcester County, he took frequent opportunity to draw me aside and make inquiry of the people whom he knew and lived with as a boy. He wanted to know what had become of the friends of his youth, the owners of the iron foundry, the leading citizens, the members of the bar in neighboring towns, the gossip of the countryside. All these and more were matters of interest to him. He never lost touch with his early surroundings and wanted the people of the countryside from which he sprang to be distinguished and outstanding.
These were not the inquiries of a man who had passed into the reminiscent stage. They were the questions of a man who was in touch with the life about him, keenly alert and sympathetic with the things with which he was familiar.
Long before Judge Pierce was appointed to the Superior Court, he had had wide and varied experiences in human relations, was familiar with the details of business transactions of major dimensions, was in close contact with the social and political life of the community, had impressed his personality upon the common life of the city where he lived and was an outstanding member of the Worcester County Bar. By inheritance, culture and experience he could have taken a high place in any environment. By choice he was first and last a lawyer, a wise, understanding and upright judge, a distinguished citizen of his native State. Here he was born. Here his ancestors settled, lived and worked. Here his family name appears upon the pages of its history. Here were his hopes, his fears and his whole manly interest. Active in body, alert in mind, skilful in manly pursuits, he sought no applause of crowds nor of his intimates. Dignified and impeccable in manners, his central interest was the law, the courts where he practised, and his home where he showered the depth of his love on family and close friends. His life then and thereafter was an exemplification of the virtues of a cultured gentleman: simplicity, steadfastness and honor.
Rooted through his ancestry and experiences in the New England tradition, his attitude toward men of other traditions and experiences was sympathetic, fraternal and tolerant. He knew that the artificial distinctions which have weight with men of smaller caliber have nothing to do with the capacity of the mind to grasp and hold firmly to a great truth nor with the power of the individual to exemplify in his life the most exalted virtues of Christian manhood and loyal citizenship.
Unlike those men who move through life as some great sun floating through infinite space and time, attended by a throng of satellites content to shine with the reflected glory of their controlling planet, from which they receive only light but no heat, he moved through life radiating the warmth and generosity of his own friendly nature; bound men to him with fraternal ties strong and enduring; gave more than he took from every human relation and made us realize how a thing is true friendship and how much greater is the power to exemplify it.
His own experiences with the "slings and arrows of outrageous fortune" put it outside his nature not to view its visitations on his fellow men with a pitying and humane eye. He could sympathize with the bereaved, the distressed, the unfortunate and the weak. These fine personal qualities of heart and mind, as well as the learning of schools and books, made him fit to sit in judgment on this or any court.
The span of his years and sweep of his active life extended over nearly half of the nineteenth and more than a third of the twentieth century. When he was born men were still taking the long trek in wagon trains over the western plains to California; the first transcontinental railroad was still to be built; the Civil War was yet to be fought; all of the social, political, and economic readjustments of the reconstruction period were in the future. He was a witness to the great migration which settled the territory west of the Mississippi River, saw free men in action with indomitable pluck and courage take possession of half a continent, subdue and settle it, organize governments, create wealth so great that it cannot be calculated, raise the comforts of civilized living to the highest level ever reached by man and stamp on the institutions of the whole nation an emblem of life the design of which is the only hope left in the world for struggling humanity.
Out of this period of expansion came a constant challenge to the law and the courts to lay down guiding principles on which human action could be predicated, governmental authority guided and restrained, human right and dignity protected.
When he took his seat on this great court in 1914, we were at the beginning of another period of great changes. The older philosophies and concepts of the rights and duties of citizens, the power of governments, the proper objectives of civilized living, the rights of man, were all to be challenged by newer concepts and changes sought by legislative action to replace the old with the new.
He belonged to the generation of men who had been schooled in the older concepts about human life and its purposes. There was no place in his philosophy for the idea that man as an individual is helpless, a creature without self-respect, without will power and without faith in himself. To him such a concept of human dignity was horribly degrading and fundamentally untrue. His career of steady advancement from a country village to a place on the highest court of the Commonwealth attained by his own physical powers, his fine intelligence and his will to do so was a complete negation of any such philosophy. Life to him was something more than a mere biological experience, originating in chance, continuing by rote ending without hope.
To him the law, was a body of guiding principles providing the rules by which human action must be guided toward a realization by the social group of a common, desirable and proper end. This view permitted him to approach the solution of the newer problem without prejudice to modification of existing rules where experience showed such changes were desirable.
He belongs to that sturdy group of great judges, able to view life as a whole, definite in end, exalted in purpose, who have stood for the preservation in the law of the land of those fundamental concepts which for three centuries have been the guiding principles on which this Commonwealth was founded, developed and maintained.
It may be that the things for which his generation stood and fought will pass away. It may be that newer concepts of the relation of man to the social group will replace the philosophies and concepts which, up to now, have guided the institutions of government and protected the rights of men in this Commonwealth and this nation, but if such changes do come we can have the abiding satisfaction that as long as rugged men of the type of Judge Pierce can sit in judgment, influence public opinion and mold the processes of government, the future society will be founded upon right principles and in it human right and dignity will be protected and preserved.
Of all the millions of men who have lived and worked since the world began only an infinitesimal few have their names inscribed upon the rolls of history. It may be that the proceedings of this day, like other human documents, will serve only to gather dust in the ages that are to come. But if, at some future time, some inquiring scholar comes across a volume of Massachusetts Reports in which the memorials to distinguised justices have been written, reads what we now say and properly relates the declarations of this hour to the history of our time, I have no doubt but that he will give high place to the justices of Massachusetts who have sat on this court and laid down the guiding rules by which man can find his place in a complicated social existence without losing sight of the eternal verities. In that day I have no doubt that that scholar will give high rank to the Honorable Edward Peter Pierce, former Associate Justice of the Supreme Judicial Court of Massachusetts.
I second the motion for adoption of the Memorial.
Chief Justice Field responded as follows:
Mr. Attorney General and Brethren of the Bar:
"Some few there be, spoilt darlings of high Heaven, to whom the magic grace of charm is given." While no one would ever think of Mr. Justice Pierce as a spoilt darling of high Heaven, all who really knew him were conscious that to him had been given the magic grace of charm. It adorned, but did not weaken, his sterner qualities. In physical appearance he was attractive. He looked distinguished, but not austere. In manner he was modest, dignified and courteous. Having known him makes it less easy to believe that the fountain of perpetual youth is only an idle dream. Responsibility, age and the sorrows of life did not destroy the youthfulness of his spirit, which he retained along with physical and mental vigor. Association with him in the work of the court was a delight, not only because of his character, his ability and his helpfulness, but also because of his charm.
However, we speak here primarily of the judge, and not of the man. Yet they cannot be separated. Judge Pierce's qualities as a man permeated his work as a judge, and inspired lawyers and litigants who appeared before him with confidence in him, and respect, even affection, for him.
Edward Peter Pierce became a judge before most of the lawyers in this room were admitted to the bar, and continued to be a judge for thirty-seven years. In 1900, when he was not quite forty-eight years old -- having been born on December 28, 1852 -- he was appointed an Associate Justice of the Superior Court. He held that position for almost fourteen years, until on December 9, 1914, he was appointed an Associate Justice of the Supreme Judicial Court, a position that he held for nearly twenty-three years, until he retired therefrom on November 1, 1937, shortly before he became eighty-five years old. There- after he was designated by Chief Justice Rugg to represent the court on the Judicial Council, and in this work he took great interest. He died on June 22, 1938. Of the seventy-three men who have been Justices of the Supreme Judicial Court only eight have longer terms of service thereon than Judge Pierce, and his combined years of service on the Superior Court and the Supreme Judicial Court exceeded the years of service of any other man on either or both of these courts except Mr. Justice Braley. Moreover, no other man ever sat upon either of these courts at an age as great as that of Judge Pierce at the time of his retirement. Up to that time he continued to perform ably his judicial duties. In his last court year he wrote sixty opinions of the full court besides attending to his assignments in the single justice session of the court. He participated in the work of the full court in September and October, 1937, and presided over the single justice session of the court in the month of October.
Judge Pierce was Massachusetts born. The Memorial tells the story of his ancestry and of his early life. He was educated in the public schools and at Harvard College -- where he was a member of the class of 1877 -- and at the Harvard Law School. He left college without completing his course there and entered the law school. He was awarded the degree of Bachelor of Laws in 1877 and twenty-five years later the degree of Bachelor of Arts as of the class of 1877. He had a continued interest in the college and in its class of 1877. In his later years, at least, it was his habit to attend the annual commencement and the reunions of his class, though, not unnaturally, he came away with a sense of loneliness at being one of the few active survivors of his college days.
Upon his admission to the bar in 1878 Judge Pierce began the practice of his profession in Fitchburg. He soon formed a partnership with James A. Stiles, Esquire, and in this association continued to practise law, with offices in Fitchburg and Gardner, until he was appointed to the Superior Court. He served as city solicitor of Fitchburg for many years, and consequently municipal law became -- as it continued to be throughout his life -- a field of special interest for him. Moreover, through his work as a member of the board of bar examiners he acquired a particular interest in the problems relating to admission to the bar, though his continued friendliness to young lawyers had a deeper origin in his own youthful and kindly spirit. It was characteristic of Judge Pierce to an extraordinary degree that all his experiences became a part of him.
Twenty-two years of active and varied practice at the bar contributed to fit Judge Pierce for judicial work. In addition, however, while at the bar, as well as after he was appointed to the bench, he was a student of the law. He bought for his personal library classics of the law, and the volumes did not stand unopened upon his shelves. He read law review articles when time permitted. He was a subscriber to the Law Quarterly Review almost, if not quite, from its beginning, and owned a complete set of this periodical for the more than fifty years of its existence, as he did a complete set of the Harvard Law Review. He acquired and retained an unusual knowledge of cases decided in this Commonwealth and of leading cases decided elsewhere. Yet he was not merely a "case lawyer." He knew the principles upon which the cases were decided and placed them in their relations to the great body of the law, of which he had a comprehensive grasp. Judge Pierce once jestingly remarked that an appellate judge should be able to write an opinion in the woods away from libraries. More than most men he had the knowledge of decided cases and of legal principles that would have made it possible for him to do this. It is needless to say that he did not adopt this practice. But the fund of knowledge upon which he could draw enabled him to reach conclusions quickly when necessary, aided him in the study of the books and made easier for him the decision of cases and the preparation of opinions.
Judge Pierce early gained an enviable reputation as a judge of the trial court. He was capable in all branches of its work. I have an impression, however, that the trial of criminal cases had little attraction for him. Yet as a judge of the appellate court he wrote important opinions in criminal cases and displayed a thorough knowledge of criminal law. On the other hand, equity cases made the greatest appeal to him. He was a master of equity procedure and of equitable principles. In his time on the Superior Court the judges assigned to hear equity cases constituted almost a special divisional court. Several of the judges so assigned were advanced to this court. Indeed, to be so assigned came to be regarded as a recognition of special ability and a step toward such advancement. Judge Pierce had the satisfaction of receiving such recognition of his ability and at the same time of having an opportunity of doing the kind of work that interested him most. His advancement to the Supreme Judicial Court did not come as a surprise to the bar. It had long been expected.
With this background it was natural that Judge Pierce after his appointment to the Supreme Judicial Court should enjoy particularly presiding in its so called equity session. He liked the type of questions there presented. He liked the somewhat broader scope for decision that is characteristic of equity compared with the narrower issues involved in ordinary common law actions. And proceedings for extraordinary writs in which there is room for the exercise of discretion have something of the same quality. To analyze a complicated situation and evolve therefrom a solution just to the parties and in conformity with law was a joy to him. Moreover, he liked the opportunity that the single justice session afforded to meet lawyers in a little less formal way than was possible when he was sitting with other judges on the full court. As a single justice Judge Pierce disposed of business rapidly. If, because of his knowledge of the law and his alert mind, the speed with which he reached and expressed conclusions was sometimes disconcerting to lawyers he was always willing to hear further argument and to modify his conclusions when convinced that modification was required.
Immediately upon his confirmation as an associate justice of this court -- the very day that he was confirmed -- Judge Pierce sat with the full court in Boston. The first opinion written by him deals with a case heard on that day -- Booki v. Pullman Co. 220 Mass. 71. In the years that followed he wrote thirteen hundred one opinions expressing the judgment of the full court, and one dissenting opinion. He joined in one other dissenting opinion and in a concurring opinion. His last opinion was in Duggan v. Third District Court of Eastern Middlesex decided on September 17, 1937, and reported in 298 Mass. 274. In his period of service Judge Pierce did his full share of the work of the court. And no justice could have been more ready to accept additional assignments as a single justice or on the full court when conditions required.
When sitting with the full court, Judge Pierce, notwithstanding the quickness of his mental processes, was patient in listening to arguments of counsel, earnestly seeking to understand fully the contentions of the parties. His occasional questions to counsel were designed to clarify the issues. At the close of a day's sitting on the bench when the court retired to the consultation room for discussion of the cases heard, Judge Pierce carried with him an unusual grasp of the questions to be discussed and, not infrequently, his conclusions as to the decisions required. Consequently, though not assertive of his own views, he was very helpful in this preliminary discussion. His participation in the later consultations at which written opinions were submitted by the several justices for consideration by their colleagues was of a like nature. He was conscious that the decision of cases, and the embodiment in written opinions of the conclusions reached, were coöperative matters. In the old phrase, he "put his mind into the common stock" that the best result, of coöperative effort might be achieved, though an opinion expressing the judgment of the court might not bear his name. While not disposed to criticize the opinions of others as to form, he was keen to detect and ready to criticize what seemed to him substantial errors in statements of law or conclusions. No colleague would lightly disregard his criticisms. Judge Pierce was open-minded, readily yielding his views to the views of others when convinced that he was wrong. But he had to be convinced. If, however, after his views in a case had been expressed, they were not accepted by a majority of the court, he was ordinarily content that the opinion go as a majority opinion without expression of dissent by him.
Opinions written by Judge Pierce deal with nearly every branch of the law within the scope of the jurisdiction of the Commonwealth. It would be difficult to select any opinions that could fairly be described as outstanding in excellence above others. His opinions are of a strikingly uniform standard of excellence. They proceed directly from premises to conclusions without discussion of collateral issues. The language is clear and accurately expresses the thought to be conveyed. There is no attempt at ornament or epigram. Nor is there any attempt at display of learning. On the contrary, as is truly said in the Memorial, an opinion written by him "does not reveal the learning and careful thought involved in its preparation." The pattern followed by Judge Pierce in writing opinions was adopted by him deliberately in accordance with his juristic philosophy. He thought of the law as a comprehensive system of general and fundamental principles decisive of cases to the facts of which they were applicable. The function of a court, as Judge Pierce conceived it, was to apply these principles to the facts of the case to be decided. And the correct application of such principles depended upon the facts and would vary with differences in those facts. Consequently he thought it essential to all adequate written opinion that the facts of the case be fully stated therein, and it was his practice to make such statements. On the other hand, he thought it a sufficient presentation of the law to state a governing principle and to refer to one or more cases decisive of that principle, particularly those in which it was applied to states of fact like that in the case under consideration, or even merely to cite such cases. But he did not multiply citations in support of an established principle, and he did not -- as he was capable of doing -- discuss the theoretical basis of the principle or its historical development. He applied established principles, however, with sound practical judgment.
Judge Pierce wrote with facility. When he had completed his study of a case and reached his conclusions with respect to it, he prepared an opinion quickly and with a sure touch. Moreover, he had an exceptional power of concentration. Even when a separate room would have been available for him, he chose to continue to work in the consultation room at a desk which -- as he took satisfaction in knowing -- had been used by Chief Justice Holmes. The mental picture of Judge Pierce seated at this desk, writing rapidly, apparently oblivious of other persons, will not fade from memory. His place of work naturally made him subject to interruptions. Yet he always seemed glad to discuss with his associates their problems and was helpful to them in such discussions. He was generous in sharing his knowledge gained through study and experience, though he was never long diverted from the performance of his own duties. Writing the number and quality of opinions that were written by Judge Pierce required industry as well as ability. He was industrious, and methodical in his industry. When not sitting in court he was almost constantly at his desk during working hours and he worked intensively.
The performance of judicial duties in which Judge Pierce spent so large a part of his mature years was a matter of both love and duty. His conscience impelled him to use his time and effort without stint to administer justice according to law and without fear or favor of any man. But love of his work gave it zest. Law and its application were his supreme interest -- apart from the members of his family, to whom he was ardently devoted. That interest continued even after his voluntary retirement, which came from a sense of duty rather than desire. His interest in law and its application, however, was not coldly impersonal. It was the interest of a friendly human being in things vitally affecting the welfare of other human beings. Moreover, he had interests outside the field of the law, as the Memorial so well points out. They were not unknown to those of us who worked with him in Boston and travelled with him, an always agreeable companion, to other counties to hold court. His quiet appreciation of things seen and heard did not escape notice.
The published opinions of Judge Pierce will constitute a permanent record of his service to the Commonwealth. They fall short, however, of showing the full extent of that service. And they fail to show the qualities of mind and heart that endeared him to so many persons, and particularly to those who sat with him upon the bench. To-day we pay tribute to an upright and able judge, a man of never failing charm, whom we are proud to remember as a friend.
The motion that the Memorial be spread upon the records of the court is granted. The court will now adjourn.
1 This opinion is reported as Duggan v. Third District Court of Eastern Middlesex, 298 Mass. 274. -- REPORTER
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