246 Mass. 581 (1923)
The Honorable John Wilkes Hammond, an Associate Justice of this court from September 7, 1898, until December 1, 1914, died at Cambridge on March 26, 1922. On November 17, 1923, 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 this court desires to place upon its records a tribute to the character and public service of John Wilkes Hammond, for many years a justice of the court.
The source of the striking qualities which won him the affection and respect of the community is found in his distinguished descent. William Hammond, the father of the first Hammond who came to this country, married Elizabeth Penn, sister of the Admiral Sir William Penn and aunt of William Penn, who gave his name to Pennsylvania. After William Hammond's death his widow with four children came to New England in 1634, having with them the Rev. John Lothrop, their minister, and the widow joined Mr. Lothrop's church in Scituate in 1638. The only son, of William and Elizabeth was Benjamin, born in 1621, who accompanied his mother to Massachusetts and settled in Sandwich. He was the father of six children. His second child, John Hammond, born in Sandwich in 1663, moved to Rochester about 1680. He is described as a noted man of his time, selectman and assessor for three years, member of the State Legislature for two years, lieutenant of militia and a justice of the peace. From him sprang a large family, and in successive generations the ancestors of Judge Hammond were men of high character, much respected in their native town and holding those offices which in New England were given to the leaders of the community. One of the family was the father of nine and another of eleven children, and John Wilkes, the father of Judge Hammond, was one of the latter family. He married Maria Louisa, daughter of Dr. Wilbur Southworth of Mattapoisett, and Judge Hammond was one of his two children, the other being a daughter.
Judge Hammond's mother was Maria Louisa Southworth. Her father was the village doctor of Mattapoisett and she was one of eleven Southworth children. The Southworth line goes back to Constance Southworth born in Leyden, Holland, in 1615 of English parentage.
Judge Hammond himself was born at Mattapoisett on the sixteenth of December, 1837. His father died when he was five years old, but his mother, who was left without resources, continued to live in Mattapoisett where she supported herself and her two children by her own exertions, largely by taking boarders.
It was thus a sturdy, vigorous English stock from which Judge Hammond sprang. Some light upon the strong religious instincts of the family may be gathered from the fact that at the funeral of John Hammond, one of the settlers of 1680, who died in his eighty-sixth year, a sermon was preached with this title: "Duty & Privilege of Ancient saints to leave their dying testimony behind them to posterity. A sermon occasioned by the death of Lieut. John Hammond of Rochester." The text is from Psalm 71: "Now also when I am old and gray headed, 0 God, forsake me not, until I have showed thy strength unto this generation and thy power to every one that is to come." It appeared that Mr. Hammond, some time before his death, called his children together to give them some spiritual advice, and this was afterward embodied in this sermon.
In the course of this sermon the minister addressed himself to the aged widow and called her to witness that her husband resembled Elias "not only in the hasty temper" but "particularly in the graces of humility, meekness, self denial and patience which he seemed to be most sensible of being defective in according to his aforesaid constitutional infirmity, which occasioned him often to pray hard for patience & others' prayers that patience might have its perfect work in him." These quotations are taken from a speech that Judge Hammond himself delivered, and, after quoting the foregoing passages, he said, "Who cannot see in these lines the picture of the grand old man, naturally quick tempered and fully aware of that fact, striving under the trials incidental to the infirmities of old age to conquer himself and by the divine assistance to be patient to the end. Of such fibre were such men made."
The business of Rochester in the last half of the eighteenth century was largely shipbuilding, and it was natural that Judge Hammond's father should devote himself to this work, but he did not have an opportunity to accumulate any estate, and Judge Hammond therefore was taught in his childhood the meaning of plain living. He lived by the sea, communing with those who earned their living by building and sailing ships, and from the speech which he made on the fiftieth anniversary of Mattapoisett may be quoted a few words which throw light upon the atmosphere of his youth.
"Upon the stones in our village graveyard may be read, records of the dangers incurred by these hardy followers of the sea. Of my mother's five brothers three lost their lives in this business -- two, both in the same vessel, by the foundering of their ship, and one by being caught in the line as the whale was dragging it from the boat. The shipbuilding filled the village with a very superior class of workmen. In the busiest period nearly three hundred men were employed; and at the noon hour the streets were filled with them as they went home for dinner. Each man was entitled to the chips which he hewed from the timber, and many a workman on his way home trundled before him a well-filled wheelbarrow. But this industry has also disappeared, and with it have disappeared the noble mechanics who were nurtured in it. The last vessel was built in 1878."
"There were no summer vacations. The people kept at home from one year's end to another. The young men generally became ship carpenters or sailors. The young women stayed at home; and the young of both sexes found their amusements in their native village. Although I was born in the village and lived here until at the age of nineteen I went away to school, and although I spent my vacations here and cast my first vote here, I never saw the village of Sippican, now Marion, until I was more than forty years old."
His education was begun in the public schools of Mattapoisett where provision was made for only three months for each child. The children under ten years of age attended the summer school, and those of ten and upwards the winter school. His education was of the sort which the bone and sinew of Massachusetts youth received.
It was supplemented by his experience in what he termed in the same address the "one educational institution of the town -- Harlow & LaBaron's store," and it is interesting to note how by his experience in that humble college he laid the foundation of his professional success. He himself describes it thus: "See this store, dimly lighted by one or more oil lamps in an evening, thus filled with talkative and social denizens of the village, not loafers, but honest, intelligent artisans, every one of them fit for official responsibility, and listen to the way in which any question for the time being prominent, whether of town, state or national importance, is discussed, and you will understand what I mean when I say it was an educational institution. Many an evening have I, when a boy, listened with rapt attention to those discussions, and many a time when in after years it fell to me to address a jury, did I seem to see before me the very same men I had so often seen in that store -- their names different it is true, and their faces not so familiar, but their methods of thought the same -- and I knew better how to influence them than if I had not had the previous experience. There is no education more useful to a man who is to move among men, than that which he gets by mingling in the society of a country store in an old-fashioned New England village." Descent and environment in Judge Hammond's case worked in harmony, and the result was the man that we learned to respect and to love.
He lived in Mattapoisett till he was nineteen years old when he entered Tufts College, where he graduated at the head of his class in 1861. He engaged in teaching in Stoughton in 1861 and '62, and in Tisbury in the spring and summer of 1862. He enlisted among the nine months' men in September, 1862, while principal of the high school in Tisbury, and served as a private in Company 1, 3rd Regiment, M. V. M in North Carolina, until mustered out in June, 1863. Thereafter be taught in the high schools in Wakefield and Melrose, and in the fall of 1864 began the study of law at the Harvard Law School and in the office of Sweetser and Gardner in Boston. He was admitted to the bar at Cambridge in 1866. He opened an office at first in East Cambridge, then moved to Cambridgeport, and later to Boston. He was married in Taunton, August 15, 1866, to Clara Ellen Tweed, of St. Louis, daughter of Benjamin Franklin and Clara Foster Tweed.
He served as city solicitor of Cambridge continuously from April, 1873, to March 10, 1886, when he resigned. Upon his appointment to the Superior Court on that date. In 1879 he was appointed district attorney of Middlesex County to fill out an unexpired term of a few months. He served in the Cambridge common council and in the Legislature, being a member of the House of Representatives in 1872 and 1873. He was also a member of the Cambridge school committee, of which he was chairman.
He was appointed by Governor Wolcott to the Supreme Judicial Court on September 7, 1898, and served until December 1, 1914, when he resigned. From then until, his death on March 26, 1922, he enjoyed the repose which he so well deserved.
Such is the outline of Judge Hammond's career as teacher, soldier, lawyer, legislator and judge, and as each he achieved distinction. Starting in a community to which he was a stranger, without fortune save his own character and ability, he won its confidence and steadily made his way up the ladder, until he had richly earned the standing in his profession which won him a seat on the Supreme Bench and the universal approval with which his appointment was welcomed.
Like another eminent justice, Judge Hoar, he covered "with his hat more wit an' gumption an' shrewd Yankee sense than there is mosses on an ole stone fence." He was indeed "rich in saving common sense," than which there is no more valuable judicial quality. Serene and courteous in bearing, with a keen sense of humor, he was an admirable magistrate and he had a shrewd instinct which enabled him to see through the contradictions and prevarications of witnesses to the real merits of a case, and no lawyer with a good case fairly presented need fear a miscarriage of justice at Judge Hammond's hands.
In an address delivered some years ago, he spoke of an honored judge then lately deceased in language which well may be applied to himself: "As a man, he was kind and true in all family relations, a staunch reliable friend, and a good citizen. As a lawyer, he was learned, painstaking, and thorough in the investigation of his client's case, and clear and effective in presenting it to the court. He was a safe adviser. In his arguments to the jury, he never took an unfair advantage of his opponent, never appealed to passion or prejudice, but simply to reason. His judgment as to where the strength of his case lay, and on what lines it should be presented to the jury, was excellent. A persistent fighter for what he believed to be right, he was nevertheless always ready to settle upon a reasonable basis. As a judge, he was patient, courteous and eminently fair. He had a strong grasp of a case, was sure to detect the principle upon which the decision hinged, marshalled well the facts; and his charges to the jury were clear, apt, and easily understood. He was an honor to his profession, both at the bar and on the bench."
Upon this court, his work was conspicuous for the keenness of his judgment, his sufficient learning, his power of analysis, and his logical acumen, as these qualities were manifested in his judgments. His first opinion appears in the One hundred and seventy-second volume of our reports, and his last in the two hundred and nineteenth volume, covering a period of more than sixteen years, from September 7, 1898, to December 1, 1914, when he resigned, and upon these opinions his reputation will mainly and safely rest. But they do not show the whole of his service. We are able to say that he made no slight contribution to the general work of the court, to that body of tradition which is often both a guide and a safeguard to those who seek to know and to understand the law of today. It was well said of him by the President of Harvard University in conferring upon him its highest honorary degree that he was "a magistrate learned, just and wise, honored by Bench and Bar, who has upheld the pride of Massachusetts in the traditions of her highest court."
He had a long, noble, and permanently useful life, and we of the bar can have some appreciation of his services to the Commonwealth and his lasting contributions to the establishment and perpetuation among us of that collected law which commands our admiration as well as our allegiance. It is much to have lived with such a man and to feel that we may well take pride in his high character, in his native wisdom ripened by long experience, and in the good service which he was able to render. We honor ourselves in honoring his memory.
On behalf of the Bar of this Commonwealth, I move that these resolutions be embodied in the records of this court.
Boyd B. Jones, Esquire, then addressed, the court as follows:
May it please your Honors: It is my privilege to speak in support of this resolution. Because of his kindliness, because of his friendliness, because of his goodness, and because of that righteous ability with which he discharged the important responsibilities of his great office, Judge Hammond won and enjoyed the affection, the respect and the full confidence of the members of the Bar. And when the relentless course of time forced him to lay aside the robe of office, the Bar learned of his resignation with the keenest sense of personal and civic loss and with deepest feelings of regret, and sorrow.
May it please the court, the importance of a man to his community and to his fellowmen, is measured by his usefulness. There is and can be no other true measurement; and, measured by that exacting standard, we can without hesitation place Judge Hammond amongst the great Justices of this Commonwealth.
He had been especially endowed with the natural attributes which should be found in the highest judicial type. He loved his fellow men; he enjoyed their companionship; he appreciated their virtues; he knew their failings; and he understood their motives; he thus had that intimate knowledge of and sympathy with human nature which should be found in those who sit in judgment on their fellow men.
The name of the parties to a cause were to him something more than a mere title; something more than the designation of a problem to be solved: those names represented to him human beings -- persons with homes and with families, with joys, with hopes, with aspirations, with sorrows, with anxieties and apprehensions, and it was to him ever a matter of serious personal concern that the parties to a suit should not be injured nor aggrieved by its disposition; that the judgments of the court should be righteous judgments, and to that end he wrought diligently. This knowledge of human nature, this love of justice, this sense of personal obligation, was directed and made effective by a strong mentality and by a sound judgment. His qualities, happily enough, are permanently reflected in his opinions; they are simple, direct, clear and choice in expression. His statement of the cases and of the questions involved was concise but complete. His treatment of authorities was adequate and discriminating. His reasoning was forcible, vigorous, fair and convincing; and his conclusions were definite, certain and unmistakable. Parker v. Simpson, Martell v. White, and Commonwealth v. Buckley, reported in volumes 180, 185 and 200, are instances of the general excellence of his work.
He died as he had lived, a respected, honored and revered citizen. Never again, save in memory, shall we see his kindly face, or hear his cordial greeting, or listen to his discourse, so instructive in its serious phases, so delightful in its lighter ones. A few days ago, in talking with a man who was in the very humblest walks of life, he said of the recent death of an acquaintance, "Mr. Jones, it makes me lonesome for those who have gone on before." Such was our feeling when we heard of the death of Mr. Justice Hammond.
George R. Nutter, Esquire, then addressed the court as follows:
May it please your Honors: The real memorial of a Justice of this Court lies naturally in his opinions; and the Massachusetts Reports from Volume 172, when in 1898 Mr. Justice Hammond took his seat upon this Bench, to Volume 219, when in 1914 he resigned, tell in enduring form the story of his service to this Commonwealth and to the profession of the law. It is unnecessary for me here to enlarge upon them.
Perhaps the best expression of regard and affection his brethren of the Bar can at this time present will be to those traits, the memory of which as time goes on, must inevitably depart with his departing contemporaries, but which in their totality were the mainspring of his service. Many attributes which render a judge distinguished have happily been so characteristic of the Bench in Massachusetts that it would be merely a matter of convention to recount them. But among other traits, Mr. Justice Hammond possessed one which distinguished him among his contemporaries. For want of a more exact definition I may call it a "sense of humor."
By "humor" I do not mean a realization of the absurd, the grotesque, or that fondness for exaggeration which is almost a predominant feature in what we in America know as humor. I mean by "humor" an appreciation of the comedy of life, using "comedy" in that sense which obtains from the time of the great Florentine to the human comedy of the Frenchman. The possessor of this gift -- for it is a gift -- views in a detached way the little drama before him, grasps with intuitive sympathy the merit, the frailty or the folly of its participants, sees the larger circumference of the stage, and, however kindly, humanly, appreciatively, yet realizes the inevitableness of the ending. This faculty pierces through subterfuges to the finding of a fact more quickly than the exercise of learning, of industry, or the patient balancing of conflicting evidence, however much these may assist; and it arrives by the same incisiveness at the determination of principles of law. It was this characteristic of Mr. Justice Hammond which among his other qualities shone conspicuously. It enabled him -- as we viewed it from the Bar -- to contribute for a quarter of a century a rare individuality to the Bench, made up during that period of personalities very diverse, yet in their total forming a rich background for the decisions and opinions of the Court.
I remember that near the end of his service upon the Bench, Mr. Justice Hammond sat for a considerable period as a single justice for the county of Suffolk, and it was my fortune to be before him during that time upon various matters. In the nature of events, one has to wait sometimes for considerable periods while the matters preceding his are disposed of. Such time is often thought of as wasted, and yet no time can be more singularly valuable. I was impressed at that time, and since then have often thought of it, with this characteristic of Mr. Justice Hammond, which I have tried to outline. Without taking sides, always maintaining an impersonal and detached attitude, his mind moved swiftly to the findings of fact, and his judgment accurately to the decision, always in a sympathetic and kindly spirit, but never permitting sympathy or kindliness to interfere with the inevitableness of his mental processes. The matters were disposed of one after the other, parties and counsel left the Court always appreciating the results. The work was done so quickly, so simply, so quietly, that it was only with an effort that one could realize that he was seeing a nearly perfect picture of a nisi prius judge, fulfilling the best traditions of the Bench. That sitting I shall not soon forget, and as we ourselves go from this gathering, to apply ourselves, as our profession bids us do, to the tangled web of the comedy, we may carry with us the memory of a master in the solution of its intricacies.
William G. Thompson, Esquire, then addressed the court as follows:
May it please your Honors: To those who but yesterday were thinking of themselves as younger members of the Bar, Mr. Justice Hammond was always a striking figure. They met him when he was in the full vigor of middle life administering justice according to law in our court of first instance, somehow contriving, in spite of statutory obstacles and the slowly gathering tradition of judicial enfeeblement, to see that the facts were established with a fair approximation to truth and the law correctly applied to the facts. And later they observed the sagacity with which as an appellate judge he dealt with the alleged errors of men who sat where he so long had sat -- at the gates of the temple of justice. And at the last they saw him with ebbing physical strength but high spirit, courageous, hopeful, venerable.
What was the cause of Judge Hammond's remarkable success, as a presiding magistrate and as an appellate judge? Why did counsel with a good case and an unpopular client feel a certain sense of security in the jury session over which he presided? Why was it that his opinions in the ordinary run of cases so rarely drew a fire of hostile criticism from defeated counsel, or even from the free companions of the law school reviews?
The answer to these questions will, it would seem, be found in two characteristics, the first not uncommon, the second rare. First, he was a thoroughly honest, self-respecting man, with all that that implies. And second, he was gifted in a remarkable degree with a kind of intuitive wisdom or sagacity which enabled him to adapt to the social conditions in the midst of which he was required to administer justice the great traditions of the English judge. If he had been told that in a democracy the judge is the servant of the people, we may suppose he would cheerfully have assented, with the important qualification that the judge is a servant whose unique duty it is, while serving, to forget his master. Had he been urged to increase the pomp and ceremony of judicial proceedings, his democratic instincts would have warned him against that course. But had it been suggested to him that truth itself has a democratic tinge, his honesty would have repelled the thought. From the arrogance of office his simplicity and self-respect were a sufficient deterrent; but so they were also from that familiarity which blurs the inherent dignity of the judicial function. He had the wisdom to realize that the plain man is able to distinguish between arrogance and strength, pretense and simplicity, unassimilated information and knowledge; and that it is the latter qualities and not the former that win lasting respect. Not the desire for more power, but the determination to exercise vigorously, and without fear or favor, all the powers committed to him, was his ruling purpose as a nisi prius judge.
And as a member of the appellate court the sureness of his grasp both of the extent and the limits of the jurisdiction of that court was equally apparent. No man believed more strongly in justice; but the only justice with which as a judge he dared concern himself was justice according to law. The logical development of legal principles and their application to ascertained facts irrespective of the consequences to particular litigants, are the aims apparent in his opinions.
He doubtless knew that the popular opinion of appellate courts is mainly based upon the comparatively small number of decisions involving the constitutionality of statutes, especially statutes dealing with the relation between manual laborers and their employers, and statutes dealing with the relation of great aggregations of capital to the public at large; and decisions declaring and developing the common law on the same subjects. In reaching conclusions about such matters it is, of course, impossible for any judge to reason in vacuo or to detach himself from his personal background of education, experience and social status. The very premises of such an investigation are drawn, consciously or not, from the judge's philosophy of life, from his satisfaction or dissatisfaction with the existing social and economic order. He cannot perhaps detect any more clearly than the layman the direction of the great tides of tendency and change which will at length determine the future of our institutions and of civilization itself. All he can be sure of is that, whichever way he decides a particular question involving these great matters, he will incur the hostility of one of the warring groups. In this situation he will not, in the words of one of our own philosophers, be content to sit idly by repeating the thoughts of other men and other days, or yet to take up bodily into the law some particular theory of social reform. Rather will he, while seeking light from every available source, cautiously, yet with unshaken heart, as one on high adventure, reject in the particular case concepts, however ancient, which no longer correspond with social or economic reality, and retain those which for him express the ultimate realities of life. Then, if what is for him the cause of truth and justice be lost, he himself is not lost.
Such, it seemed, was the spirit in which Judge Hammond approached the great problems of modern jurisprudence. He turned not away from the light. He kept his faith. He has his place among the great servants of our State.
Honorable William B. Stevens then addressed the court as follows:
May it please the Court: My earliest recollection of Judge Hammond goes back to the fall of 1865. Having graduated from Tufts College, he was then studying law in the office of Sweetser and Gardner. I was, at that time, desirous of getting into a law office, and through his help was admitted to the same office, and for the next few years our personal relations were somewhat intimate. Judge Hammond had great admiration for the legal ability of Mr. Sweetser, who, at that time, was the leading lawyer in Middlesex County. I think intellectually Mr. Sweetser was one of the most honest minded men I have ever known -- never resorting to subterfuge, having the utmost contempt for sham. Although not, perhaps, especially learned in black letter law, he was thoroughly grounded in legal principles and had no superior, if an equal, in arguing questions of fact to a jury and questions of law to the court. In such, an atmosphere, surrounded by these influences, supplemented by a course at the Harvard Law School, Judge Hammond obtained his legal education.
But I prefer to think of him as a young man, as a genial, companionable, interesting friend, rather than as an able lawyer and great judge. He was a born judge; his temperament was judicial. I was impressed in his student days with his ability to express a complicated and involved question in plain, simple language. Added to this power of lucid statement was a native shrewdness and Yankee common sense. In the best sense of the word Judge Hammond had a conservative mind.
It seems but yesterday that he opened a modest office in East Cambridge and began his married life in a plain, unostentatious house; but soon afterwards he moved to Cambridgeport where he lived, and afterwards owned and occupied a house on Harvard Street, not far from Harvard Square.
It is almost impossible to realize that a lifetime has passed -- almost sixty years -- since I first knew that young man; and that, after a distinguished career, he had finally reached old age and now has passed to the unknown shore.
Arthur D. Hill, Esquire, then addressed the court as follows:
May it please the Court: There is just one aspect of the career of Mr. Justice Hammond which has indeed been spoken of already, but which I would like further to accent, and that is the extraordinary services which he rendered through his rare power of administering justice and making the community which he served realize that justice is behind and is the purpose of all our laws and courts. He was a very rare presiding officer in the courts of justice, for he had the power of being dignified without arrogance, and firm in the conduct of his court without being arbitrary. He had the rare quality, too, of being able to respect opinions which he did not share, and even to which he was strongly opposed. Nor was this because he was lacking in convictions. On the contrary he was a man of strong, definite views, and on some subjects had even stronger prejudices at which he was the first himself to smile; but his thought was always checked and illumined by an unusual sense of humor and a wide tolerant humanity.
Cardinal Newman says somewhere, that in proportion as we love truth more and victory less we shall be anxious to know what it is that leads our opponents to think as they do. The feeling embodied in that passage was conspicuously present in Judge Hammond's mind. He always tried, to understand what the men with whom he was dealing felt and thought.
Above all things he was single minded in seeking to administer justice according to law. He never thought of himself; he never thought even of the dignity of the court; he knew that if he walked toward the end, the dignity of the court and the personality of Judge Hammond would take care of themselves. Because of these things he was enabled to do more than perhaps any other man here to-day has done towards maintaining and strengthening the position of the courts of which he was a member.
His service on those courts was contemporaneous with a great change in the character of the community. Not only had men of new races come in, in numbers hitherto unknown, but the economic situation and the temper of thought of the time has so changed that we seem almost to be living in a different world from the world that existed some fifty years ago. In all that change it has been hard to preserve unhampered the traditional institutions that we value in New England. The greatest of these institutions -- our courts -- have not been exempt from the danger. It has been hard to make the new elements in the community understand what our legal traditions mean, but they all understand a good and a strong man. Judge Hammond through his personality was able to illuminate and make clear to all with whom he came in contact the great facts for which the courts stood.
I think it is common, in a divided community as this has come to be, for particular individuals to appeal to particular groups, rather than to the community as a whole. That was conspicuously not true of Judge Hammond. I have never met any group of men, any section of the bar, any section of the community, which did not admire, respect, and feel for him a strong personal affection. He was a man of great spiritual force. That great spiritual force illumined his work and went into everything that he did and merged his personality in that of the court, so that he stood to all with whom he came in contact as the embodiment of justice and of right.
The Chief Justice responded as follows:
Mr. Attorney General and Brethren of the Bar: -- The court have listened with genuine appreciation to the accurate and careful memorial to the late Mr. Justice Hammond, and to the discriminating and faithful tributes which have accompanied its presentation. We heartily concur in this testimony of respect to his personal virtues, and to his judicial qualities.
The controlling sentiment of this hour is thankfulness that such a life has been lived and such a career added to the rich treasures of the Commonwealth. When his bodily presence passed from earth, there was a momentary pang of regret that we should see him in the flesh no more, but it was speedily displaced by a feeling of joy that we had been privileged to know and to be benefited by communion with such a character.
In summary review the significant dates of his life are birth in 1837; graduation from Tufts College in 1861; service as private in the Union Army, 1862-1863; admission to the Bar and marriage at the age of twenty-nine, in 1866; city solicitor of Cambridge from 1873 to 1886; judge of the Superior Court for twelve years, from 1886 to 1898; associate justice of this court when one year past three score, in 1898, and for sixteen years, until his retirement in 1914 at the age of seventy-seven; and death in 1922 in his eighty-fifth year, still in mental vigor.
Manifestly his was a full life, dedicated to usefulness and crowned with honor. Early promise of distinction ripened by continuous growth in power until far past the psalmist span of three score and ten.
He was fortunate in birth and ancestry. He was a typical son of the Massachusetts of the pilgrim and puritan. His conversation, manner of thought and method of approach to the consideration of controverted questions showed his origin. His family association with seafaring men and a voyage as one of the crew on a fishing schooner to the Grand Banks in his youth gave to his speech a nautical savor, which never wholly left him and which frequently lent peculiar piquancy to his comments on men and affairs. The shrewd judgment and the homely but unalloyed phrase of the true New Englander were his in marked degree. His interest in Tufts College never waned, and for many years he served on her board of trustees. A deeply religious spirit was his. Without ostentation but with unwavering persistency, he was a constant attendant upon the public worship of God. Slight of figure and under the medium height, his countenance was lighted by keen eyes, whose twinkle disclosed never-failing humor. His wit was sparkling, kindly and never barbed with satire. It relieved the tension of many a discussion. He was the most genial of companions. Association with him was a delight. He was always hopeful, happy and of a buoyant disposition. He loved mankind. He cherished fellowship with friends. He was no ascetic. The market-place was far more attractive to him than the cloister. He was proficient at chess. He was ardently appreciative of baseball and a frequent attendant at league games.
His literary tastes were varied and his range of reading wide. He was intimately acquainted with literature pertaining to the law and to the sea. He had read all of Campbell's Lives, both of the Lord Chancellors and of the Chief Justices. Often he commended to the young lawyer the study of these volumes and also the reading of Ten Thousand a Year. He was almost as familiar with Two Years Before the Mast as with the Bible. He found recreation and refreshment in fiction of many sorts. His mastery of that language enabled him to gain pleasure in the untranslated writings of French historians. Around the fireside of the home, his gracious hospitality gave many a happy hour to favored guests. A gladsome family life was illumined in his declining years with the distinctive felicities of the patriarch. His nature was thoroughly rounded. He had active contact with whatsoever things are full of fun, as well as with whatsoever things are honest, just, pure, lovely and of good report. His professional learning was adequate. He was grounded in the practical. He was amply gifted with common sense. He tested every principle according to its just application to the ordinary affairs, the everyday habits, the actual business, the social relations and the domestic concerns of mankind.
His practice at the Bar covered a period of twenty years and ended thirty-seven years ago. His characteristics as a trier of causes can now survive in the memory of but a few. He must have been fair, alert, keen, with a secure hold on essentials and a proper disregard of the unimportant. His long experience as city solicitor of Cambridge gave him unusual comprehension of the great variety of questions incidental to the growth of a city under modern conditions. As a trial judge in the Superior Court he was a close approach to the ideal magistrate. He enjoyed the work. His faculties were adapted for the settlement of controversies of fact arising in the business of men according to the relevant principles of the law. He exercised a safe, prompt and discreet controlling judicial power over the diverse passions, motives and tempers of suitors, witnesses and counsel, so that contentions were composed by finding the truth as nearly as possible amid the complexities of trials. He asserted the appropriate function of the judge by furnishing to the practical common sense of a jury guides by which to test the credibility, to determine the reliability and to weigh the testimony of witnesses. He enlightened the intelligence and directed the attention of jurors to the end that, notwithstanding inequalities in the skill, ingenuity and efficiency with which issues might be presented, the scales of justice should remain even, unaffected by any prejudice, and should incline to the one side or the other only according to the preponderance of trustworthy evidence.
The more permanent record of his judicial achievements is found in his work on this court. His written opinions in declaring its judgments are found in forty-eight volumes of our reports, the first being Carey v. Hubbardston in 172 Mass. 106, and the last, Hutchinson v. Boston & Maine Railroad, 219 Mass. 389. The total number is 791. They are marked by clearness of thought, chasteness of language and conciseness of expression. There is no confusion either in matter or manner. It is always indubitable that the controlling principles of law are firmly grasped and thoroughly understood by the writer. Every proposition is sufficiently supported by reason and authority. His thought was rich. His words were few. He never wasted the printed page nor trespassed upon the time of the reader by redundancy or verbiage. His style was simple. He was master of the strong diction of apt words of obvious meaning in common use. His imagination by pertinent illustration made lucid the application of governing legal principles to intricate states of fact. His vivacity of thought sometimes gave a dash of color to judicial opinions, which of necessity are devoid of all attempt at literary adornment.
No description in detail of opinions from his pen is practicable on this occasion. One deserves mention because it stands out above others as a signal contribution to the history of trial by jury and its constitutional place in our jurisprudence. The judgment of the court in Parker v. Simpson, 180 Mass. 334, was pronounced by him. It contains a thorough and critical study of the social conditions and judicial practices of the founders of our Commonwealth and the framers of our Constitution with special reference to trial by jury. It is exhaustive in its references to primary sources of information. It is conclusive in the marshalling of the results of exhaustive research. It satisfies by its comprehensive discussion. It is convincing in the strength of its reasoning. Its accurate and original thought compels adherence to the views expressed. It is a fit companion to the best accomplishments of our greatest judges.
Important as were his visible additions to the body of our jurisprudence, his impersonal and impalpable contributions are hardly less significant. His resources were always at instant command. His intellectual keenness was extraordinary, the acuteness of his perceptions unusual and the quickness of his mental processes almost phenomenal. His searching analysis disclosed every sophistry. His clearness of vision and vigor of discussion swept away the fog of uncertain and inaccurate thought. His incisiveness penetrated to the core of every question. In debate with him issues became exactly defined. In the faculty of constructive, vivid, and kindly face to face criticism he was without a superior, if not without even a peer. The unessential paragraph, the unsound premise, the faulty reasoning or the illogical conclusion in proposed opinions rarely escaped his immediate attention. He was by reason of these attributes peculiarly helpful and suggestive to his juniors. These qualities rendered him invaluable in the discussions around the consultation table. His inquiries from the bench to counsel during argument always tended to forward the discussion but were sometimes of disconcerting discernment. His judicial manners were admirable. The dignity of the bench ever was maintained in spirit as well as in appearance. He was courageous, serene, patient, prompt. The law was never hurried or delayed through him. His treatment of counsel and witnesses was courteous and generous. His sympathies were broadly humane. Although of firm convictions and difficult to move when he had reached a final conclusion, he was thoroughly open minded and deferential to the views of others. Only three dissenting opinions were written by him, and he joined in but few dissents by others. He knew how to get on with men. He was conspicuous for wisdom. The intricacies of technical learning, recondite legal investigations, and philosophical theories of jurisprudence had comparatively little attraction for him. He was profoundly interested that the law be made an effective instrumentality for the accomplishment of justice under existing social conditions. He was deeply solicitous for the preservation of the fundamental principles of constitutional government. The protection of the "rights of every individual, his life, liberty, property and character," according to standing laws and in conformity to due process of law, the maintenance of the general welfare and the common good, equality before the law, religious freedom and perpetuation of a government of laws and not of men were to him living issues, never to be lost sight of, and never to be in the slightest degree impaired. His career has added substance and lustre to the judicial annals of Massachusetts. That is lofty praise. No less is his due.
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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