257 Mass. 597 (1927)
The Honorable Henry Newton Sheldon, an associate justice of this court from October 18, 1905, until January 4, 1915, died at Boston on January 14, 1926. On March 12, 1927, a special sitting of the full court was held at Boston, when there were the following proceedings.
The Attorney General addressed the court as follows:
May it please your Honors: I am asked to present the following memorial, prepared by a committee of the Bar Association of the City of Boston, of the life, character and public service of Henry Newton Sheldon, late a justice of this court, and to move that it be entered upon the records of the court.
Henry Newton Sheldon: A memorial.
Henry Newton Sheldon was born in Waterville, Maine, on the twenty-eighth of June, 1842. His father was David Newton Sheldon, a Unitarian clergyman, who was at one time president of Waterville College, now Colby. His mother, before her marriage, was Rachel Ripley, of Boston. He was one of six children. One of his brothers became Professor of Romance Languages at Harvard College. The family was poor. He was educated in the public schools of Bath and Waterville and, after spending a year at Bowdoin, entered the sophomore class at Harvard where he obtained a scholarship and, partly working his way through, graduated first scholar in the class of 1863. Being an industrious, scholarly youth, he was facetiously nicknamed "The Sluggard" by some of his friends.
After leaving college, he taught private pupils and a school at Yarmouth for about a year, and then was commissioned a lieutenant in the Fifty-fifth Massachusetts Regiment on June 28, 1864. The Fifty-fifth was a colored regiment and at that time public opinion was divided on the question of enlisting colored troops. To accept a commission in that regiment required courage and a strong sense of public duty. In his class report his only statement in regard to his military service is that "his time in the army was spent in South Carolina and Georgia." This is a characteristically modest remark but it does not tell the whole story. He was in several engagements and was wounded by a deflected bullet which struck a buckle on his uniform. Any one who knew him knows that he did his full share of whatever had to be done. He was physically, as well as morally and intellectually, courageous. A glimpse of him appeared in the Edgartown Gazette, after his death, where it is related that, "When at Cold Harbor the order came to intrench, he found that his men had been so shaken by the terrible loss of life in the fruitless assault, which General Grant told John Russell Young he regretted having ordered, that something had to be done to reanimate their drooping courage. Therefore, although there was a heavy and destructive fire from the enemy's lines, he calmly crossed the breastwork which was slowly being thrown up and, seating himself, lighted his pipe and smoked until the work was completed."
Returning to Boston at the close of the war, his regiment was discharged. Having studied law while teaching before entering the army, he entered the office of Judge Josiah G. Abbott and was admitted to the bar on the twelfth of April, 1866.
In 1867, he married Clara P. Morse. They had two children, one a daughter, who died when she was about twelve years old, the other, Wilmon Henry, who is now a professor of philosophy at Yale. After beginning practice, he also began to write. His book on subrogation, still in use, was published in 1882. For many years he was associated with the late General Blackmar, and they practised law together until 1894, when Sheldon was appointed a judge of the Superior Court.
The circumstances of his selection for the bench illustrate the value to the public of the Massachusetts system of appointment with tenure during good behavior, just as his service, which justified his appointment, illustrates how much the judicial qualities of one man strengthen and add to the character of a court. Any one who knew Judge Sheldon will realize how little there was in him or about him to attract public political attention as a candidate for the bench under an elective system. His scholarly habits, his modest reserve, his strong distaste of a public campaign for judicial office, would all have kept him beyond the range of an elective system. Why did he appear then under our system? Because Governor Greenhalge, who was a classmate in college, knew his man. He told some of his friends that he was going to appoint "The Sluggard" to the bench, and if they would collect some professional approval of the choice it would give him support in doing so. This was done, and the real work for which Sheldon was fitted began when he was about fifty-two years old.
Up to that time his mental traits and the fineness of his character were well known to the small circle of his intimates at college, and to those who came into contact with him at the bar. But he had not attained any commanding position, and, with his modest nature, was not likely to attain it. From the time, however, that he began his judicial career, his remarkable qualities found the true field for their endeavor, and he quickly became a leading figure on the bench. The ensuing thirty years were roughly divided into three periods of equal length. For the first twenty years he labored as a judge -- part of the time in the Superior Court, and the balance of the time in the Supreme Judicial Court, until his retirement. After his retirement in 1915, he rendered great service in various ways to the community.
On the bench of the Superior Court, he was almost an ideal judge at nisi prius. Always upholding the dignity of his court, but without ostentation, he was patience personified to those members of the bar who practised before him. His mind sprang intuitively to the root of a case -- both in its facts and in its law -- and to this innate mental quality he added the results of learning and study. The Superior Court at that time was but young in equity jurisdiction, the nature of which was less widely understood by the bench and bar than it is today. Full powers had been conferred upon it in 1883, but it had not yet developed its possibilities. Justice Sheldon took part in shaping what became known as the Equity Motion Session in Suffolk County, and helped to establish the practice that there prevailed. So successful was his administration of the equity side of the court, that it was with the general satisfaction of the bar that he was elevated to the Supreme Judicial Court in 1905.
In the Supreme Judicial Court, his opinions -- during a period of ten years -- were nearly six hundred in number, contained in thirty volumes of Reports, beginning with his first case, Fountaine v. Wampanoag Mills, 189 Mass. 498, which appears in the reports just after the decision in Commonwealth v. Tucker, (a famous murder case in its day, in which Judge Sheldon delivered the charge in the Superior Court,) and continuing until his last opinion, Commonwealth v. North Shore Ice Delivery Co. 220 Mass. 55. They are distinguished by his predominant quality of exactness; the style that always turned to the point. His grasp of facts -- that severest test of judicial capacity -- and the application of the law thereto, were masterly; and his opinions constitute a series of sound contributions to our law, covering a wide range of subjects. When he retired in 1915, he was generally regarded as one of the foremost judges of his generation. This estimate of his standing prevailed likewise in the community at large. In 1908 he received the honorary degree of LL.D. from his university, and in 1913 he spoke for his class at its fiftieth commencement anniversary.
Upon his retirement from the Supreme Judicial Court, at the age of seventy-two, there still remained for him some memorable years of service and effectiveness. He was chosen president of the Massachusetts Bar Association in 1915, and it was largely due to his fostering care that the Massachusetts Law Quarterly was launched and began its successful work. He declined a nomination as president but served as vice-president for the Bar Association of the City of Boston, and was at the head of a committee of three, before whom were brought, in the first instance, the complaints against a prosecuting officer which afterwards reached a sensational ending. In 1919, he became the chairman of the Judicature Commission, appointed by Calvin Coolidge -- then Governor of the Commonwealth -- to " investigate the judicature of the commonwealth" and consider and report upon the proposed reforms in judicial procedure. Prior to that time, in 1898, he had been chairman of a commission on "Simplification of Criminal Pleading," which framed the statute of criminal procedure, so that his work in the Judicature Commission was merely a continuation -- upon a larger and broader field -- of his prior labors. To the work of the Judicature Commission he brought an effective combination of theory and practice, of appreciation of old methods with willingness to look forward to the new.
At the conclusion of his labors upon the Judicature Commission in 1921, his active work ended, and in the succeeding years he endured with fortitude the advances of old age, cheered, we trust, with the knowledge of the affection and respect of his colleagues and of the Bar, and of the appreciation of the standing to which his services had brought him in the community. On January 14, 1926, he died. Time might well throw a dart at Death, ere Death could slay another such as he; so learned and so good.
If we were to attempt to paint Justice Sheldon as we knew him it would seem to those who did not know him to be but fulsome exaggeration. The first scholar in his class, he had a keen and analytical mind; he excelled in mathematics, and it is said that he could multiply -- in his head -- six figures; he had a remarkable memory, and was fond of repeating at length his favorite poems; he was read both in Italian and in French; to his natural qualities of mind, thus broadened by his intellectual pursuits, he added a constant study of the law. As was once said of Judge Benjamin R. Curtis, of an earlier generation, "constant reading had made him a 'full' man -- a richly cultivated mind." Thus he brought to his judicial labors a mind naturally strong and vigorous, and improved by much study until it had almost the exactitude of a machine. With all this endowment of nature and of endeavor, he was a very human personage; he had a ready wit and a fund of anecdote. He bore himself always with respect, with modesty and with a sense of true dignity. He had the greatest trait of a judge, in that he inspired confidence.
In the midst of ignoble strife he kept the quiet and modest tenor of his way. He was born to acquire truth and to possess it; and by the possession of it, he won the affection of his colleagues, the respect of his brethren and the honor of his community. His life presents a chart by which each of us may steer, for, like Seneca's pilot, he kept his rudder true.
Thomas W. Proctor, Esquire, then addressed the court as follows:
May it please your Honors: I rise to second the motion of the Attorney General.
Following the ancient custom, we have gathered to honor our distinguished friend: to present a brief review of his personal character, that the memory of it may endure and not vanish away as if writ in waters.
Up to the time that he became a judge, I could claim no intimacy with Judge Sheldon, although I knew him well. But when he was appointed to the Superior Court and needed to be relieved of his practice at the bar, I was privileged to assume it as best I could, and I was admitted to his friendship that lasted, I am pleased to think, until the end of his life. He left a good practice. He was not conspicuous according to his merits, but his partner, his clients and his brethren of the bar, who had felt that finely tempered blade, knew him for what he was.
It might truly be said that his faculty for attracting business was not equal to his faculty for dealing with it. His mastery of his profession, the quickness and ease with which he managed the interests committed to his care, gave him, when busiest, almost an appearance of leisure. He was a learned author on an abstruse subject.
But his greatest period of usefulness to the people was as a judge. He won and had the confidence, respect and admiration of bench and bar alike. He had, it seemed to us, all the qualities requisite for his great office in a most remarkable degree. He had great learning. His memory, prodigious and exact, held the first fact, the last fact and all the facts between. Upon that great storehouse he could draw sight drafts and he needed no days of grace. "His logic, keen and analytic, rejected and brushed aside the inconsequent and irrelevant, though to us it seemed to bear; and yet he saw connections and inferences of fact that to us were invisible. He saw the case in true relation, perspective and proportion. He seemed almost to see the end from the beginning. His minute book had "patience, patience" written at the top of every page, but his mind raced on to the true goal, the real goal, with almost the quickness of light, and when we reached it, if we did reach it, we found him waiting there. Of all the principles of law, those truly applicable were used, and only those, with the speed and the sureness of mastery. Under his hand complications disappeared and simplicity took their places. It was like magic. He was our admiration and our despair. He took care of the loser. The verdict, the finding, the decision, take care of the winner. I have sometimes thought that the important party to the litigation is the loser. If as he leaves the court defeated, he is forced to feel that his bad cause has received all the consideration that there could be for it, we need have no fears for our courts of justice. In this, I think, Judge Sheldon succeeded as well as any man.
Of his work as an appellate judge, you know better than we of the bar. His opinions are regarded by us as learned and able and wise and useful. They seem to us to be the fitting monuments of a marvellous mind.
He performed a most meritorious service to the State, when, with the aid of others, he simplified our criminal pleading, that relic of black letter law, inherited by us from the bad, old days of legal tyranny. The accusation is now plain and direct and no time is wasted in bygone subtleties.
Judge Sheldon had simplicity of character. Of course he was courageous. At twenty-two, he was lieutenant of a colored company in the evil days of '64. No more need be said. He was companionable, with a pleasant, kindly wit. His great talents made him, not imperious, but considerate. He was so modest but so sure. He did not think evil of his fellow men.
At length, after a judicial service of more than twenty years, he retired and spent his ease with dignity. Even then he performed a difficult public task at the call of the bar, for the benefit of his fellow citizens. He long had passed the psalmist's allotted span, and we are glad to know that the later years were not all labor and sorrow. He had lived a long, a full, a useful and a noble life. And when at last the end came, full of years, full of honors, with face toward the morning, -- yes, on the wings of the morning -- he passed on his way, tranquil and serene.
Addison L. Greene, Esquire, then addressed the court as follows:
May it please your Honors: Among the pleasantest days of my life are those spent with Mr. Justice Sheldon upon the Judicature Commission and among my most delightful recollections are those connected with the many conversations, and discussions, some formal, but mostly informal, which we had together at that time.
He was then nearing the close of a useful and well spent life. His mind was ripened, his memory stored with reminiscences of people and events, his fund of anecdote apparently inexhaustible, his legal acquirements extensive, his legal knowledge accurate; while, intermixed with all this, leavening the whole loaf, ran a delightful vein of humor, reserved, a bit shy, but all the more alluring because of the deliberateness and dignity of his language and bearing.
It was not surprising to find him learned and accurate in the law; he had been long upon the bench and both at nisi prius and in the Supreme Judicial Court had firmly established his reputation as a lawyer and a jurist. But it was surprising for some reason to find him so well versed in the ordinary interests of the day, -- baseball for instance. He knew the batting and pitching averages of all the leading League and Association players. It was not at all surprising in our discussions that he should quote quickly and accurately authority upon the constitutionality or nonconstitutionality of a proposed measure. We were so sure of his learning that we would have been astonished had he not done so. But it was surprising to find a legal mind with a penchant for baseball familiar with the macaronic style of the Italian Renaissance.
He can best judge who can best understand, and he best understands men who lives closest to them in their daily joys and sorrows. It is not an easy thing to work one's way through college, but the doing of it brings its own reward. War is a dreadful thing and yet the young officers who come back have learned how their men think, they have learned how to care for them, how to assume and fulfill responsibilities. And this experience of youth and early manhood, in school, in college, in the army, in teaching, was valuable, very valuable to a mind naturally inclined to be studious and reserved. It explains its scope and breadth. It tells why the Bar remembers Judge Sheldon upon the Superior Court Bench not only as a learned but as a discerning and discriminating Judge.
Perhaps the outstanding qualities of Henry Newton Sheldon, apart from his legal attainments, were his modesty, his consideration for others, his dignity and his unfailing courtesy. He possessed that charm so precious and so rare that we call it "of the Old School," because so little of it exists at any new moment. Such modesty and consideration do not, and in his case did not, mean lack of conviction or willingness to abandon a principle or a belief. It was fundamentally a part of his nature to give full consideration to the opinions of others, to treat ideas as well as persons with scrupulous courtesy. His judicial experience doubtless accentuated these natural qualities, for, among the four things that Socrates says belong to a Judge, are "to hear courteously" and "to consider soberly." Emerson says that "we sometimes meet an original gentleman, who, if manners had not existed, would have invented them." He might well have had Judge Sheldon in mind when he voiced that thought. What a wholesome comprehensive word, that of "gentleman," even though it be somewhat slurred today. There are some natures so honest, generous and brave that we cannot conceive them doing a dishonest or unkindly thing. It is in their conduct that we find the standards of gentlemen. Thackeray answers his own question when he asks, "What is a gentleman? It is to be honest, to be gentle, to be generous, to be brave, to be wise, and, possessing all these qualities, to exercise them in the most graceful outward manner."
With all his consideration for his neighbors' views, Judge Sheldon appeared to me a man of decided opinions who never wavered for a moment in his conception of right and wrong. But he was fortunate in belonging to that class of men happily described as being "of approved sobriety, reasonable in their postulates, liberal in their admissions, well established in their inferences." Such men possess intellectual courage -- the courage of their opinions. They are never in danger of falling into either of the two classes so much deplored by Phillips Brooks: the one "clinging servilely to the old ready made opinions which he finds, because he is afraid of being called rash and radical;" the other "rejecting the traditions of his people from fear of being thought fearful and timid and a slave."
Judge Sheldon's physical courage has been mentioned. Apropos of the risks that judges sometimes run in the performance of their duties, he told one day of an incident within his own experience. It had been his unpleasant task to impose a severe prison sentence upon a physically powerful prisoner, who became thereupon immediately and violently enraged, created a scene in the courtroom and vowed to be avenged as soon as he was free. This threat was renewed from time to time while he was confined. Time passed, and there came a day when, while crossing Boston Common, Judge Sheldon found himself face to face with this man, who was evidently there to make good his threat. Here Judge Sheldon stopped; he had illustrated his point and he had no thought of relating his own prowess. "But what happened," we urged "Well," he replied finally, with a twinkle in his eye, "we talked a while -- then we walked along together and after a time he said goodbye and left me." It was not difficult to read between these lines.
There always appeared to be a logical connection between the dignity of Judge Sheldon's bearing, the deliberateness of his speech and the courtesy of his manner. It was evident that with Emerson he believed that "Life is not so short, but that there is always time enough for courtesy," and that experience had taught him that his own opinions would be most convincing when all opposing views had been patiently considered.
It is a touching and inspiring tribute to his memory that, after so long and so busy a life, the same words of praise, the same terms of affection spring involuntarily from every lip. What greater praise is there than to be hailed as a just judge, a loyal citizen, a courteous gentleman. No unkindly word, no untimely jest of his has left its trace of bitterness behind. Death silences all criticism, but here there is no criticism to silence.
We will remember Judge Sheldon just as he was, -- fond of his profession and of his books, kindly and considerate, his life well spent, loyal to the country for which he had fought, faithful to the ideals that it represents, sturdy to maintain justice against wrong, but broad enough to comprehend the weakness of human nature. We see him still, as we saw him in the latter days of his life, frail in physique but in courage high, and, although he must have known that his days were numbered, the same quiet humor lighting up his face as he talked. His life was an inspiration, for it is an inspiration
"To count the life of battle good
And dear the land that gave you birth;
And dearer yet the brotherhood,
That binds the brave of all the earth."
William G. Thompson, Esquire, then addressed the court as follows:
May it please your Honors: The esteem in which a man is held by the minority whose judgment must in the long run determine his rank in the judicial hierarchy will, of course, depend on the solid qualities of character, learning, and courage. Yet it has not been thought inconsistent with republican simplicity to invest the judicial office with symbols of formal importance, to the end that the judge may not only be, but also may seem to all men to be, one worthy to occupy a position apart from his fellows and above them. If he has weaknesses, this practice serves to conceal them, and thus to prevent the high dignity of the office from being lowered by the unworthiness of any particular incumbent. Such ceremonial isolation is entirely justifiable. In most cases it serves the purpose of an appropriate background for the fine central figure of the picture. But if a doubt, however unfounded, should arise whether, if the background were blotted out, the central figure would still be impressive, there can in most cases be no decisive answer. In the case of Judge Sheldon, however, it happens that the high estimate of his character, wisdom, and disinterested public spirit, formed by the Bar from observation of the way he exercised the powers of his office, was singularly confirmed by an incident which occurred after his resignation. It is of that I wish to speak.
In the year 1919, when he was more than seventy-five years of age and in failing health, he complied with the urgent request of the Council of the Bar Association of the City of Boston to serve as chairman of a committee appointed to investigate charges vitally affecting the administration of the criminal law in this county. For a considerable period in 1919, and for shorter periods in the years 1920 and 1921, he rendered this service until the work was finished. The committee's room in the Post Office Building was small and closed, the hearings occasionally lasted until seven or eight o'clock in the evening without adjournment for dinner; the committee had no power to summon witnesses or compel answers to questions; there were no officers to preserve order, no surroundings of formal dignity or restraint to ensure decorum. When the hearings began, the persons involved in the complaints were in the full tide of success, and not in a conciliatory mood. Yet the evidence obtained by the untiring efforts of the Association's counsel was presented in orderly and quiet fashion; all legitimate questions were answered by those who cared to make a defence; there was no breach of decorum; and the committee was able to make an adequate report of many complicated transactions. How was the situation saved? It was my privilege to sit with Judge Sheldon during those trying days, and I can answer. Not by the trappings and power of office, but by the simple dignity of an upright man. I particularly remember one occasion when we retired alone to consider a ruling on which much depended. Every consideration but one seemed to require the admission of certain evidence against the accused. That one was justice. The discussion was brief. I shall not soon forget Judge Sheldon's concluding remark. It was this: "We have to consider what is right, not the consequences of doing right."
Others will speak of the varied activities of his long life as soldier, lawyer, judge. Yet I would remember him in still another character, one perhaps not the least important of them all. I think of him in his old age as the modest private citizen, yet still the unconquered veteran, answering the call of urgent but undistinguished public duty; courteous, fearless, masterful. Was it not of such as he that Plato was thinking when he wrote the closing words of his "Republic":
"Indeed, if we follow my advice, believing the soul to be immortal, and to possess the power of entertaining all evil, as well as all good, we shall ever hold fast the upward road, and devotedly cultivate justice combined with wisdom; in order that we may be loved by one another and by the gods, not only during our stay on earth, but also when, like conquerors in the games collecting the presents of their admirers, we receive the prizes of virtue; and, in order that both in this life and during the journey of a thousand years which we have described, we may never cease to prosper."
Philip Nichols, Esquire, then addressed the court as follows:
May it please your Honors: With the rapid flight of time it is hard to realize that those of us who came to the bar just before the turn of the century are no longer to be ranked among the younger members of the profession and that with the passage of a few more years our coevals will become the seniors of the bar. Our elders even now seem hardly men of a different generation.
Judge Sheldon, however, I could always feel belonged definitely to an earlier generation, because I as a child first knew him as a former classmate of my father at Harvard and as one of his intimate friends, always referred to by that nickname, "The Sluggard," which on the principle of lucus a non lucendo, his tireless industry at college had brought upon him. Judge Sheldon, even before his elevation to the bench, was a man to remember. His great learning, his dignity and his judicial temperament and manner gave him a distinction which could not be overlooked. Notwithstanding his scholarly disposition, he had some less serious interests. He lived in an age when few men themselves participated in outdoor games after their college days; but he enjoyed certain forms of athletic spectacles, both before and after he was on the bench. Even there his natural instincts dominated, and his fair and judicial comments on the progress of the game contrasted strangely with the outcries of the excited partisans by whom he was often surrounded.
His circle of acquaintances was, however, not wide, and this Commonwealth might never have had the benefit of his services on the bench if at the time of life when a judicial appointment was most appropriate another Harvard classmate had not chanced to be in office as Governor.
At that time the number of judges of the Superior Court was far less than at present, and the appointment of a new judge was less frequent and consequently of greater public interest. When Governor Greenhalge appointed Mr. Sheldon to the Superior bench, one of the Boston afternoon newspapers published an article upon the appointment with the caption, "Who is Sheldon?" and denounced the Governor for nominating for that important office an attorney so obscure that no one even knew who he was. The reporter who wrote the article had evidently made his inquiries in the wrong circles; many members of the bar of standing in the profession knew and admired Mr. Sheldon, but the incident shows how little he was known by the public at large or by the frequenters of the corridors of the courthouse. It is often felt that experience as a trial lawyer is essential to success as a trial judge; but if Judge Sheldon's experience at the bar had been largely in the form of an office practice, his conduct of jury trials, both civil and criminal, did not suffer from any lack of previous training. Much has been said of his effectiveness in the Equity and Motion Sessions; but his handling of jury cases was also admirable. His expressive manner of speech made his charges to the jury unusually effective, and, though they read well enough, they were even better in the actual delivery. He had an unusual faculty of putting life into time-worn phrases. I remember well his charging juries in cases arising out of defects in public ways and how much meaning and significance he put into the word "reasonably" in explaining to the jury that the duty of a city or town was merely to keep its ways reasonably safe and convenient for travel -- a word, which if pronounced as it often was in a perfunctory way, would be overlooked by the jury entirely.
When, ten years later, Judge Sheldon was promoted to the Supreme Judicial Court, not even the most ignorant follower of the courthouse news inquired, "Who is Sheldon?" nor was there any dissent from the general gratification that the Commonwealth was to have the benefit of his services in this enlarged field of usefulness.
His work on the Supreme Judicial Court speaks for itself. In a Commonwealth which has produced such a large proportion of the leading American jurists, it would be unseemly, even in a eulogy, to rank Judge Sheldon among the greatest; but the strength and the reputation of our highest court has rested not so much upon the brilliancy of its most renowned leaders, as upon the steadiness, good judgment and high general average of ability of the associate justices; and think what it meant to Massachusetts to have, on an average of one a week for ten years, an opinion of that court going out to the country at large, written with the accurate and expressive use of language, the scholarly research, and the keen analysis of the precise point of law involved in the case which characterized all of Judge Sheldon's opinions. Massachusetts may have lost her industrial supremacy, but, as long as we have men of the type of Judge Sheldon on the bench, the opinions of her highest court will continue to stand as the leading precedents in the jurisprudence of the other commonwealths of the country.
It is pleasant to remember that, after he had retired from his active labors, he was able to enjoy a period of well-earned rest, and that in that time he took part in congenial and useful public services tending to the better administration of justice.
In the Constitution of Massachusetts it is said that the idea that a man can be born a judge is absurd, and in the sense in which it was meant that statement is undoubtedly true; but in another sense Judge Sheldon was born a judge, and, if he had never served in a judicial capacity, he would have missed his vocation and the Commonwealth would have suffered a definite loss.
Henry M. Rogers, Esquire, then addressed the court as follows:
May it please your Honors: I may be pardoned, perhaps in this presence, for speaking of a friendship with Judge Sheldon which lasted for upwards of fifty years. From the beginning of that friendship until its close, there was never a moment that we would have had our relations changed; there was nothing for which either of us had to make apologies or to seek redress.
My last interview with him was on the first day of January, 1926, when I called upon him; less than fourteen days before his death. We talked of everything in the heavens above, the earth beneath, and the waters under the earth; and when we parted, we parted as we had met. On that first day of January, 1926, as I left him, I could not help thinking, and afterwards saying, that he seemed to me better than he had been at any time within the two preceding years.
Judge Sheldon's character was as firm as the hills. He walked this path of life of ours as if he knew it led to the Divinity. Our closest association, perhaps, was after we were designated "veterans of the Civil War." For we were both closely affiliated with that great order, the Military Order of the Loyal Legion of the United States, that was formed on the day of the death of Abraham Lincoln and because of his death, when a few officers of the Northern army on that terrible fifteenth day of April, 1865, hurried from Philadelphia to surround the coffin of their great Chief, not knowing how widespread the conspiracy was that had stricken down our great Leader, and with the determination to see that, as they stood around his coffin, his body should be borne in safety and laid away to its final rest in Springfield, Illinois.
Then they hurried back to Philadelphia and, in the great Hall of Liberty there, dedicated themselves anew to the ideals for which Abraham Lincoln had lived, worked, suffered and died. The date of the birth of that great order is the date of Abraham Lincoln's death, April 15, 1865.
Henry Sheldon was a Chevalier Bayard. He was a gentleman, without fear and without reproach. He was a great judge. He was a lawyer with high ideals which he always remembered and practised, because he was an honest man. He was a patriot and he proved his patriotism. He was a loyal friend. Those of us who loved him and knew him longest mourn him most.
But I see the silver lining; for he and I had a very short creed, that Character is Destiny; and it is in the memory of his character that we have inspiration, and in his destiny that we have an example to follow.
Chief Justice Rugg responded as follows:
Mr. Attorney General and Brethren of the Bar: For the fifth time within less than three and one-half years we are assembled in this room to pay tribute of respect and honor to the memory of one who has worn the ermine of this tribunal. The court continues its course unbroken, but one by one those who have been its members fall.
Henry Newton Sheldon was born in Maine at the seat of Colby College, then called Waterville College, of which his father was president at that time and for ten years afterwards. He was reared in a stimulating intellectual and moral atmosphere. Highly gifted in mental faculties, which early began to unfold, he ranked first in the general scale of scholarship in his class of 1863 at Harvard. After graduation he taught school for about one year until, on his twenty-first birthday, June 28, 1864, he was commissioned second lieutenant of the Fifty-fifth Regiment of the Massachusetts Volunteer Infantry, composed of colored troops. He was promoted to be first lieutenant in December, 1864, and served, in South Carolina and Georgia, until the regiment was formally discharged in September, 1865. He did not attend the Law School, but studied by himself and in the office of Josiah G. Abbott. He was admitted to the bar in 1866, and married in 1868. He practised law in Boston and was for about twenty years in partnership with General Wilmon W. Blackmar, who at the time of his death was Commander-in-Chief of the Grand Army of the Republic.
In 1882 there was published Judge Sheldon's work on the Law of Subrogation, still the standard treatise on that subject. In the following year he edited an American edition of "Bateman on Auctions." He was a contributor to the American Law Register.
In 1894 he was appointed a judge of the Superior Court by his college classmate, Governor Greenhalge. Not widely known by the bar of the Commonwealth at that time, he speedily achieved and maintained a high position on the trial court. He saw where the truth lay; and he had a keen perception of the requirements of justice in the disposition of disputed questions of fact. He knew full well that the trial judge, sincere, without guile, learned in the law, with sound sense, unbiased, with a clear eye single to the right, ought to be the dominating power in the court room. To a rare degree he met the exacting tests of a great magistrate presiding over jury trials. In his court no masterful advocate overstepped the bounds of propriety or had influence one jot or tittle beyond the merit of his argument. He discerned the essential and wasted no time upon the trivial. Calm, firm, dispassionate, courageous, he led the jury to see the vitals of a case in right perspective and to perform their duty in the light of correct principles. His talents and resources all were instantly available. In equity sessions he dispatched the business with almost unerring accuracy. His decisions were seldom reversed. It was the common speech of the bar that his associates on that bench regarded him as the willing oracle to whom they might freely resort for assistance and guidance in troublesome matters.
No branch of the law has been in this country the subject of more widespread criticism and popular condemnation than criminal pleading. That Massachusetts has escaped from this general reproach is due in no small measure to the constructive capacity and technical skill of Judge Sheldon. Pursuant to chapter 85 of the Resolves of 1897, an able committee of three was appointed by the Governor to investigate and report upon a plan for the simplification of criminal pleadings, and to prepare a schedule of forms of pleading to be used in criminal cases. Judge Sheldon was the chairman of that committee. Its recommendations were the basis of St. 1899, c. 409, now a part of G. L. c. 277. The drafting of this statute and its accompanying forms, which were included, in the report, demanded great technical learning and unclouded understanding of the Constitution. The work was thoroughly and admirably done. Nonessentials were eliminated: verbiage was omitted. Only the description of the indispensable touching a crime need be stated, and that in plain, simple, concise words. The constitutionality of the act was upheld. Under its provisions, the framing of indictments and complaints has become so easy that fatal faults now almost never occur. This service was of incalculable value to the Commonwealth. The eleven years on the Superior Court were for Judge Sheldon a period of constant and unusual growth in judicial excellence, and were so recognized in the estimation of other judges, of the bar, and of the public.
When appointed to this court in 1905, at the age of sixty-two, he brought to its deliberations wide experience, rich treasure of learning, ripened wisdom. His fitness for the new position was at once and everywhere gladly acknowledged. It was more than justified by his performance of its duties. For him there was no need for probationary exercise before bearing the burden of the heaviest kind of appellate work. His opinion in Gray v. Whittemore, 192 Mass. 367, written when he had been on this bench only a few months, was a demonstration of judicial excellence of the first order. It was followed by other judgments from his pen of like superiority, too numerous to mention at this time. He was on this court for ten years, retiring in 1915, at the age of seventy-two, while in full vigor of body and mind. He wrote five hundred and ninety-three opinions expressive of the decision of the court, found in thirty-two volumes of our reports, from 189 Mass. 498, to 220 Mass. 55, both inclusive. He wrote only one dissenting opinion and joined in one written by an associate.
In the final decade of his life and when relieved from continuous labor, he performed one more public service of signal value. By St. 1919, c. 223, provision was made for the appointment of a commission of three to investigate the judicature of the Commonwealth. Judge Sheldon was the chairman. Here again his capacity for constructive statesmanship in the law was manifest. The report is a comprehensive survey of our judicial system with suggestions for its improvement. As a consequence of its recommendations came the small claims procedure, whereby controversies involving amounts not in excess of $35 can be adjudicated with informality and expedition; the judicial council, a permanent body of trained experts to study and make report for the betterment of the judicial system and its procedure; and the extension of the appellate division, earlier established for the Municipal Court of the City of Boston, to all the district courts of the Commonwealth. The enactment of several other statutes was proposed, some of which have already become laws beneficent in their operation.
The short stature and slender figure of Judge Sheldon were crowned by a countenance of rare expressiveness. Although not born for athletic adventure, he rode the bicycle in its day and in summer by the quiet sea on occasion gained recuperation by rowing and fishing. Always ready in utterance, he was in speech both sonorous and luminous. He was an easy, cheerful and interesting conversationalist, with fine appreciation of humor. He was a man of genuine kindness of heart. Though he could be as stern as any occasion demanded, he had the genial temper and serene disposition of one confident in his own resources and at the same time able to get on well with men. He was not possessed of the magnetic attributes commonly thought to be requisite for candidates at popular elections, and, so far as I know, never held an elective office. The volunteer of the civil war, however, was dedicated to the service of his country; in peace as well as under arms he was a profound student of her institutions, solicitous for her political and social welfare and active in the promotion of fine civic ideals. He was deeply interested in the Loyal Legion, was for one term its chief officer, and attended its meetings whenever practicable. He was happy in his life. Of domestic tastes and a man of the home, he was given to hospitality. His companionship was always welcome. Generous in his opinions concerning others, he utterly scorned conduct savoring of trickery, sharp practice, or want of candor. Many and deep were his satisfactions. There was the consciousness of full contemporary commendation of his labors by the bench and bar. Harvard honored him with her highest academic distinction on the forty-fifth anniversary of his graduation. He was president of the Massachusetts Bar Association in 1916-1917. He followed closely the national game for many years and was a frequent spectator of the baseball played in Boston. He was an expert in chess. He was fond of good music. He was a staunch supporter of the church and an attendant upon its public services. For a number of years he was an official of the Unitarian Club of Boston. His general information covered wide and diversified fields. He was a man of extraordinary erudition. He was a lover of literature and was intimately acquainted with masterpieces in all its departments. In youth he became widely read, and he continued to be familiar with that which was best in beauty and force of style, whether ancient, or modern, or current. His memory was amazing. It was quick to apprehend and tenacious to retain. Learning by heart with him was not a laborious effort, but a natural aptitude. Whatever in literature made an impression on him was photographed at once on his mind and thereafter was capable at any moment of reproduction by tongue or pen. He was able to quote with verbal precision and at length from many poets and prose writers. Not infrequently he repeated in the original favorite passages from Greek, Latin and German authors, and occasionally, for comparison, a standard translation of the same passages. Among recent writers he preferred James Russell Lowell, and could recite most if not all of his great poems. He was never forthputting. He awaited in the placid strength of his own integrity and capacity whatever the wheel of fortune might bring.
His natural powers, accomplishments and temperament were peculiarly adapted to judicial work. He had the common virtues of the Massachusetts judge: impartiality, patience, probity, purity, courtesy. Soundness of moral fibre, strong conscience, sound judgment, determination to go to the root of every matter, unruffled poise, were his.
He was courageous, energetic, industrious, wise. On the bench he had no prejudices or predispositions. Every question presented itself to him for decision in the white light of the law of the land. His good sense, learning and facility of speech made his counsel around the consultation table of the full court of singular value. He had no pride of opinion and readily yielded to sound reasoning. But he rarely had occasion to change. He illustrated in marked measure the threefold attributes of the studious man, as stated by Bacon: "Reading maketh a full man; conference a ready man; and writing an exact man." He was able to perform with ease and rapidity all the tasks falling upon a member of this court. He once remarked that his largest output had been four opinions written in one day. Other of his judicial utterances must have required many days, perhaps weeks, for preparation. His great learning in the law was all at instant command. The movements of his mind were swift, tireless, painstaking, thorough. His conclusions were based upon adequate premises. These traits enabled him to perform huge labors in brief time. The quality and quantity of his judicial work were at once the admiration and despair of his brethren. He perceived the relative value in the law of cases as they came before the full court. He differentiated accurately between those presenting no new points, and hence requiring no extended treatment, and those reaching into a rough or uncultivated field where discussion was essential. His opinions have distinctive characteristics. The discussion of legal propositions is ample. Nothing is left unsaid which can forward the argument. The reasoning is strong, progressive, impregnable. The logic is convincing. The conclusion seems inevitable and uncontrovertible. The citation of authorities is apposite and full. The form of expression is clear, neither too concise nor too abundant. The words are chosen with exactness and nicety. The arrangement of sentences displays complete mastery of the art of technical composition. His easy felicity in the unhesitating selection of appropriate language, his familiarity with governing principles of law, the finish and dexterity of his expression were such, that the final revision and printing seldom showed substantial change or alteration in phrase or even in word from his first draft manuscript. The clarity and precision of his judicial utterances disclose unclouded thought. His statement of legal principles is unmistakable in meaning. His work carried the impression of a reserve of learning and power never brought to supreme exertion. His opinions meet the exacting requirements of the legal scholar; they instruct and illuminate the student beginning a professional career; they satisfy the demands of the practitioner of every degree from the tyro to the most experienced.
Long and blameless life and marked usefulness were his. He passed from mortal vision full of years and of honor. His end was not untimely. We cannot sorrow long. We are deeply thankful that a career of such sweet and surpassing excellence has been added to our common heritage.
"Cease tolling, bell, and let the bugles blow."
The motion of the Attorney General that the memorial be entered upon the records of the court is granted.
The court will now adjourn.
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