344 Mass. 779 (1962)
The Honorable Henry Tilton Lummus, an Associate Justice of this court from July 27, 1932, until his resignation on October 1, 1955, died on August 29, 1960. On March 23, 1962, a special sitting of the 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: In accordance with the usual custom, it is my honor and privilege as Attorney General of the Commonwealth to present, on behalf of the Bar of the Commonwealth a memorial of the appreciation of, and regard for, the judicial career and public services of the late Henry Tilton Lummus, formerly an honored member of the Supreme Judicial Court, who died at the age of 83 at his home in Swampscott on August 29, 1960. His life was dedicated to service to the Bench, the Bar and his fellow man.
Henry Tilton Lummus was born in Lynn, December 28, 1876, the son of William and Louisa Mitchell (Brown) Lummus. He attended the Lynn schools, was graduated from the Lynn Classical High School in 1894, and from the Boston University Law School in 1897, heading his class and receiving the degree of Bachelor of Laws, summa cum laude.
He was a classmate of the late Governor and United States Senator David I. Walsh, and of the late Thomas H. Dowd, who also served as Justice Lummus did, on the Superior Court.
He began the practice of law in the office of Arthur H. Wellman in Boston and in 1900 opened his own office in Lynn with the late C. Neal Barney under the firm name of Lummus & Barney.
In 1903 he was appointed special justice of the Lynn Police Court, and in 1907 became presiding justice of that court. His judicial duties did not require his full time and he continued his private practice and served as master and auditor in many cases by appointment of justices of the Superior Court and of this court. He also taught law school classes and authored many articles on legal topics and a textbook, "The Law of Liens," which was published in 1898.
In 1921, Judge Lummus was appointed an Associate Justice of the Superior Court by Governor Channing H. Cox, and served on that court until July 27, 1932, when he was appointed an Associate Justice of this court by Governor Joseph B. Ely.
In the course of an earlier memorial to one of the deceased justices of this court who, like Justice Lummus, had first served on the Superior Court, the Attorney General said:
"To perform adequately the duties incumbent upon a judge of the great trial court of the Commonwealth requires, besides sound learning and abundant common sense, a wealth of experience in the practice of the law, a knowledge of human nature, a faculty for administration and a sympathetic temperament, combined with firmness, good judgment and infinite patience, qualities rare to find blended in one and the same person."
It can justly be said that Justice Lummus came closer to possessing all of these required qualities than all but a very few men who have served on the Superior Court, and certainly none who have served on that court exceeded him in sound learning, common sense, experience, knowledge of human nature, faculty for administration and firmness.
One of Justice Lummus' greatest services while on the Superior Court was his annotations to the Superior Court Rules in 1932.
Justice Lummus was always interested in court practice. It was one of the subjects which he taught to law school classes fifty years ago. It is interesting to note how closely the ideas he expressed to his classes in his youth accorded with the statement of those same ideas in his maturity when in 1937, as a Justice of this court, he delivered a series of three lectures at the Law School of Northwestern University in Chicago under the auspices of the Julius Rosenthal Foundation, published in 1937 under the title "The Trial Judge." For example, in his law school lectures, as in his Chicago lectures, he argued for the right of the trial judge to express his opinion on the facts.
In his Chicago lectures, Justice Lummus clearly and eloquently stated his views that no judicial system could be stronger than its trial judges, and his views as to the qualities trial judges should have. He stated in part:
"A trial judge must have a sound working knowledge of substantive law and practice, enabling him to meet the difficulties that arise without warning in the daily work of trial. Intellectually he ought to equal the best advocates that practice before him, with very rare exceptions. The public cannot afford judges who are unable to meet that standard. He must also understand and know how to handle people -- lawyers, parties, jurymen, witnesses and the public. Upon him depends whether a trial arousing great public interest or feeling will be conducted with firmness, dignity and calm, as befits the justice of a great state, or turned into a circus for the pleasure of the sensational press, radio broadcasters, and the childishly excitable part of the public . . . ."
In discussing, in his Chicago lectures, the duties of a trial judge, Justice Lummus stressed the necessity for clear and effective charges in jury trial cases. He said in part:
Charging the jury is a great art. In essence it is advocacy; not partisan advocacy, but the advocacy of an honest and intelligent performance of duty, of giving justice according to law. In method, the judge should no more be hampered than is counsel in his argument."
In one of his law school lectures of fifty years ago, Justice Lummus made the following statements as to the jury system which are worthy of record:
"The practical function of the jury is to convince people in general that the administration of justice isn't entirely a mystery with a priesthood attached to it, that the everyday people are to have a voice in it and see how it is going on, and take part in it and understand its workings; and further than that, that questions of fact, etc., be decided by a number of people of varied experiences in order that the acts and doings of the parties shall be looked at in the light of the varied experiences of a number of people drawn from various walks of life."
Justice Lummus, as is shown by his law school teaching was deeply interested in education and during his earlier years at the Bar he served as a member of the Lynn School Committee. He was a member of the Constitutional Convention in 1918 and was active in the Convention proceedings and debates.
Throughout his career, at the Bar, as a law school teacher, and on the Bench, Justice Lummus stressed the importance of a thorough knowledge of court practice on the part of both the practitioner and jurist and the need for informed reforms in practice and procedure for the improvement of the administration of justice. He frequently stated that cases before the Supreme Judicial Court are not won here, they are won or lost in the court below by the manner in which legal rights are saved in that court, and urged practicing lawyers and law school students to master the rules of court practice and procedure.
Justice Lummus was an outspoken and forceful speaker when occasion required. He was distinguished in personal appearance and bearing. He was interested in antiques, particularly in old razors and furniture, of which he had an extensive private collection.
It was accurately stated of Justice Lummus at the time of his death that his retirement from this court on October 11, 1955, was "after a career as one of the most colorful figures in the history of the Massachusetts courts."
The life of Justice Lummus was one of credit to himself and his family, and of great service to the Commonwealth and its citizens. His judicial services, great as they were, constituted only part of his contributions. He gave unstintedly of his knowledge and experience for the improvement of the law and of the administration of justice and for the education of the legal profession.
Those who, like Justice Lummus, devote their lives and best efforts to the administration of justice in the public good, are especially deserving of the honors of the citizens of this democratic republic, and are even more deserving of honor by their fellow workers at the Bar whose careers could not exist without the unselfish, impartial and untiring services of men like him who accept and discharge the onerous duties and burdens of the high judicial responsibilities of this court.
I respectfully request and move that this memorial be embodied in the records of this court.
Philip L. Sisk, Esquire, addressed the court as follows:
May it please the court: It is with a feeling of distinct honor and privilege that I appear this morning to represent lawyers from the Lynn Bar as well as Essex County to speak at the Judge Lummus memorial.
Another speaker, of course, is more of a contemporary of the late Judge Lummus than I. However, in my short span at the Bar the name of Judge Lummus has come to mean to me, as well as other members of the profession, that of someone who is on a pedestal, as a scholar and as a judge. There can never be a discussion among older lawyers and contemporaries of mine, too, in Lynn and in Essex County concerning the pillars of the Bar, and we have had many in Essex County, without invariably the name of Judge Lummus coming up in some manner.
In preparing these remarks I have only a feeling of inadequacy to fully and aptly express for the members of the legal profession, who respected him so much, exactly what I want to say.
I remember vividly lawyers talking at luncheon at a local gathering place concerning questions of law and cases tried, and whether they spoke of immediate problems, or merely something of an academic nature, some lawyer always quoted "Lum" as he was affectionately called by the older lawyers.
Twenty odd years ago in seeking advice from older members of my family who were lawyers, I can remember vividly one of them answering, in response to a question, "look at volume such and such, 'Lum' wrote a decision." I think that that covers our point or situation, the point being not that the decision was written, and not just because their friend and colleague, Judge Lummus wrote it, but it was the law because he was who he was, and what he was, in the field of jurisprudence. That was the end of the matter as far as they were concerned.
Speaking personally, and I am sure for other members of the local Bar, to my mind Judge Lummus was an impressive figure. He looked, and he acted, like a judge, and well he might, with the world of experience he had in the local court at Lynn, later on as trial judge in the Superior Court, and later on sitting as a member of your honorable body. Apart from his appearance and his actions, however, from the time he opened his mouth to speak there was no question about his remarkable mind and his tremendously articulate and forceful way of expressing himself, which demonstrated once and for all that here was a man above the average lawyer in ability, and justly deserving of the reputation he had as a scholar and a jurist, among lawyers and judges alike.
He had a gift of expressing himself, I am told, so that he could wither a person with a remark, if it were necessary. On the other hand, he was able to express himself either orally or in writing, at great length, always being logical, always on the issue, supporting premise after premise, to a necessary and inevitable conclusion. His command of language was, and is, to be envied. He had courage in his decisions, whether popular or unpopular. In short, he did his job, when he set out to do it, to the best of his ability. I believe that he believed that we are a government of laws, not of men, and that the law was an awesome thing at times, but always to be respected and preserved.
My late uncles Richard and William Sisk and Judge Lummus went to law school together. I know from many, many hours of talking to them of the feeling of respect and affection that they personally had, along with all of the other members of the Lynn Bar, for Judge Lummus. This was not only because he was a friend, and a one time fellow student, but also because he was the great judge that he was. I cannot help but think what a remarkable book he wrote, "The Trial Judge." I read it, and remember excerpts from it. One cannot help but feel, being in the trial courts as I am day in and day out, that a trial before him could be approached with confidence, that all parties would get a fair and impartial trial, that the witnesses would testify within the law, that the lawyers would conduct themselves only with the dignity as befits our trial courts, and that the jury would be fully instructed on the law and the facts as they applied to the law, in the particular case.
In addition to being not only a great judge in the trial court, and as a member of this court, Judge Lummus was also a dedicated man. He was dedicated to the position to which he was appointed in this high court, as well as previous appointments as a judge. He was dedicated to the research and the many, many hours of studying and distinguishing cases, and finally deciding the most intricate of legal problems. It has been mentioned that he also had a hobby of buying and selling antiques. He was also dedicated to this, in whatever leisure time he had.
He is survived by his widow, and a son, two grandchildren and four great grandchildren, all of whom are intensely proud of his memory.
Lawyers in Lynn will always speak with respect for Judge Lummus whenever his decisions are read, as they always did while he was alive. His passing has resulted in the loss of a great idol for the legal profession in the City of Lynn, and in Essex County, as well as all over the State, but we who knew him, and those who knew of him, will never forget the outstanding judge that he was.
May I respectfully request of this honorable court that my remarks be inscribed upon your records.
Harry D. Linscott, Esquire, addressed the court as follows:
May it please the court: The Lummus record begins in 1635 when the first of that name came from England and settled in Salem. Thence the record runs in almost direct line to the present generation. On the distaff side, the record begins with Roger Conant, first governor of a chartered company settling in Salem in 1625. In Lynn, Judge Lummus' father carried on the business of tanning leather in partnership with the father of the late Governor Allen.
His father wished him to go into business but Henry preferred law and entered Boston University Law School with the parental injunction that unless he showed great promise he would be taken out of school and brought into the tannery.
As a student, he was brilliant. Without the benefit of a college education, going directly from high school to law school, he graduated summa cum laude.
A year after graduation, he published a textbook, "The Law of Liens," still considered authoritative and mentioned as late as 1958 in North End Auto Park v. Petringa Trucking Co., 337 Mass. 618.
In 1907 be became presiding justice of the Lynn Police Court. He did not care for the name "Police Court" and was instrumental in having it changed to the District Court of Southern Essex. He remained as presiding justice fourteen years.
Henry Lummus would have been outstanding in whatever branch of the law he might have cared to enter. Learning, great mental energy, a courageous spirit, a bent for tireless research, a phenomenal memory, impartiality, plus a strong strain of ordinary common sense were his outstanding characteristics. He was eminently fitted for the judiciary.
In 1937, when he was sixty-one years of age, Judge Lummus published a booklet entitled "The Trial Judge," being a series of lectures given by him at Northwestern University Law School.
In "The Trial Judge," he brings together and expresses, in the simple, easy style of writing of which he was a master, the wisdom gained from his years on the Bench combined with his high ideals and understanding of the judicial process in the American way of life. The book should be in every law library and might well be presented by the bar associations to every new judicial appointee. It is well written, interesting, and as a judicial guide to beginners would seem invaluable.
Among other things, he speaks in "The Trial Judge" of minor courts.
"From the standpoint of statecraft," he says, "of inculcating confidence in our courts and our government among multitudes of people, many of them of foreign birth, no courts in the land compare in importance with these inferior tribunals of the first instance."
In the District Court of Southern Essex, Judge Lummus maintained an example of what minor courts ought to be. Incidentally, he made it a real trial court.
In 1907, the automobile was still a novelty and had not become the source of litigation it now is. The workmen's compensation act was yet to be passed. Most District Court tort cases came from street car accidents, factory accidents, and personal controversies. On the criminal side, there was a daily contest between defendants and police.
Being contemporary, I have a very clear recollection of Judge Lummus' court of that period. With infinite patience, he allowed a group of young practitioners, some later to become eminent, to try out at length and in the grand manner small civil and criminal contests. They in turn were encouraged by the fact that they were trying before a judge with a clear mind, a knowledge of evidence and absolute impartiality. For young lawyers, it was great experience.
During his eleven years on the Superior Court bench, Judge Lummus became noted for his competency, his wisdom, his judicial knowledge, his court control in both jury and jury waived trials; and particularly for the clarity of his charges to juries.
"One of the most important duties of a trial judge," he says in the book above referred to, "is to instruct the jury in the law governing the facts that the jury may find upon the evidence. I am not one of those who takes the view that instructions are necessarily futile and without effect upon the deliberations of the jury. . . . Charging the jury is a great art. In essence, it is advocacy; not partisan advocacy, but the advocacy of an honest and intelligent performance of duty, of giving justice according to law."
Anyone having occasion to read one of Judge Lummus' jury charges will be impressed by the grammatical and at the same time easy flow of sentences, the clearness of expression, the wisdom and fairness of his instructions. Surely, it would seem, no juror could listen to such a charge and fail to understand the issues, the applicable law, and to have instilled in his mind a determination to find the facts truly and to do justice. Moreover, his charges make good reading. I particularly like the charge in Commonwealth v. Hendrick (The Pickwick Club case) given August 12, 1925. In student classes it might well be read as a model.
Judge Lummus was appointed by Governor Ely to the Massachusetts Supreme Judicial Court in 1932. He retired in 1955. It is not possible, in a brief statement such as this, adequately to describe the accomplishments of his twenty-three years on the supreme bench. He was a student as well as a jurist, and indefatigable in research. His exposition of difficult and highly technical legal principles was thorough and clear.
Of his many important decisions, it seems to me that National Shawmut Bank v. Joy, 315 Mass. 457, concerning certain questions of trust interpretation, and Commonwealth v. Welansky, 316 Mass. 383 (the Coconut Grove fire case) are outstanding.
On the somewhat debatable question of whether judges, in the course of trial, should try to procure a settlement, Judge Lummus had strong convictions. "A judge," he writes, "should seldom advise a settlement, unless counsel seek his aid. Competent counsel know better than he does when settlement is advisable, and incompetent counsel think they do. Procuring a compromise is no part of the judicial function. The prestige of the court should never be employed in dragooning the parties into an undesired compromise.
Judge Lummus was a member of the Council of the American Law Institute. He wrote many articles for law journals. As a member of the committee which revised the Superior Court rules in 1932, he traced out and put together in the form of notes, the history, origin and applicability of each rule. He may be said to have been the originator of the present annotated rules system.
"Being a judge," he wrote, "is a career in itself." It was his career, steadily pursued, beginning at the bottom, ending at the top; a career successful, useful and happy. To write of him in detail, of his personality, his idiosyncrasies, his hobbies, his ability, his accomplishments, would require and deserve an extended essay in a law review. No story of the advancement and improvement of justice in Massachusetts can be written without including Judge Lummus.
Assuredly, future generations of lawyers, as they read over his decisions in our Massachusetts Supreme Court Reports, will agree with us, who knew him, that he was, in every respect, a great judge.
Chief Justice Wilkins responded as follows:
Mr. Attorney General and Brethren of the Bar:
Henry Tilton Lummus, the judge, was master of the spoken, as well as of the written, word. As a justice of this court, he disclosed rare intuition in the choice of phrase and a vigorous vocabulary alert for the finest distinctions. He accommodated his style to the particular case. In one deemed by him to be of not over average legal importance, he would dispose of an issue in terse, compact language. He was aware of, but never dissuaded by, the aphorism that every lawyer wants a short opinion in the other fellows' cases. Accordingly, in a case which he considered suitable for a needed pronouncement of some precedent, he would draw upon his great talents of research and literary exposition and produce an opinion which could long serve as a guidepost to the Bar and to judges of all courts. In this category may be cited Cook v. Farm Service Stores, Inc. 301 Mass. 564, Carilli v. Hersey, 303 Mass. 82, Peterson v. Hopson, 306 Mass. 597, Lowell Bar Assn. v. Loeb, 315 Mass. 176, National Shawmut Bank v. Joy, 315 Mass. 457, and Carter v. Yardley & Co. Ltd. 319 Mass 92.
As judge of the Superior Court he could impress in clear extemporaneous rulings on evidence, in making which he brooked little argument from counsel, and in sonorous, lucid charges to the jury. At the close of a trial without jury he might turn to the official stenographer and, apparently without notes, would dictate from the bench in perfect elocution a full statement of findings and rulings in a form which needed no revision.
In his long and valued service on the Supreme Judicial Court Mr. Justice Lummus was the author of 1,136 opinions, of which 1,099 were signed by him and 37 were rescript opinions. His first opinion was Commonwealth v. Kosior, 280 Mass. 418, and the last was Holiver v. Department of Public Works, 333 Mass. 18. In addition to his cases previously mentioned, other noteworthy opinions, among many, are Stuart v. Sargent, 283 Mass. 536, Snow v. Van Dam, 291 Mass. 477, Commonwealth v. DiStasio, 294 Mass. 273, Minasian v. Aetna Life Insurance Company, 295 Mass. 1, Meehan v. North Adams Savings Bank, 302 Mass. 357, and Bowe v. Secretary of the Commonwealth, 320 Mass. 230. It is not his opinions alone which reflect his wisdom. Many opinions of his colleagues have benefited from words, phrases, or even entire sentences suggested by him at the conference table.
Mr. Justice Lummus had a unique judicial career. In addition to many appointments as auditor and master in the early years, he served with distinction on three levels of courts for more than half a century. To have observed him was memorable. To have tried before him was an educational experience. To have served as his associate was an honored privilege.
The motion that the memorial be spread upon the records of the court is granted.
The court will now adjourn.