272 Mass. 591 (1930)
Centenary of His Appointment as Chief Justice
The Honorable Lemuel Shaw became Chief Justice of the Commonwealth on August 31, 1830, and first took his seat at a sitting of this court at Lenox in the county of Berkshire on September 21 of that year. At the opening of the sitting of the court at Pittsfield in that county on September 16, 1930, there were the following proceedings.
Frederick W. Mansfield, Esquire, President of and on behalf of the Massachusetts Bar Association, addressed the court as follows:
May it please your Honors: One hundred years ago at Lenox in this county, Lemuel Shaw took his seat as Chief Justice of this Honorable Court. A hundred years is but a fleeting moment in the world's history. But in the history of a nation and of a great commonwealth the century that has elapsed since Shaw was elevated to this exalted position has been a momentous era. For our nation and our State those years have been filled with important events. They have been notable and eventful years and with them Lemuel Shaw was identified for more than one half of their number -- twenty-six as a practicing lawyer and thirty as Chief Justice. His professional life of over one half a century was lived during the critical and formative period of our nation and our Commonwealth. The Bill of Rights had just been written when he was born. Washington was not five years dead when he was admitted to the bar. Lincoln had just been inaugurated as president when he died. The nation was still in swaddling clothes when he began the practice of his profession and had but just begun to put on the raiment of vigorous youth when he was called to the Bench which he graced and over which he presided illustriously.
The law is not a sudden growth. It follows the progress of men and of events. Its development under Chief Justice Shaw was remarkable. For the thirty years that he was Chief Justice the times and customs were rapidly changing. Then, as now, enterprise and invention were opening new fields of human endeavor and achievement. The frontier was being steadily driven back. Then, as now, men and nations were being brought nearer to each other by new means of travel and of communication. With new customs new questions were presented for legal adjudication. Railroads and public service corporations were developing. Human slavery was a growing cloud upon the horizon. Many novel problems were solved by Chief Justice Shaw and the Supreme Judicial Court by application of old principles -- many by the promulgation of new but soundly reasoned rules of law. Often, this Court under his leadership blazed a trail through virgin forests or breasted uncharted deeps. Under him the law and the administration of justice progressed and expanded as nearly as it was possible to do. It kept pace with events as closely as it may ever be said that the law keeps abreast of progress and achievement.
The great work of Chief Justice Shaw was invaluable to Massachusetts and to all her people. Yet his fame is perhaps altogether confined to the legal profession. He was not a great advocate. Contemporary with Webster and with Choate he could not match their reputation for debate and for oratorical skill. To become a popular public figure idolized beyond the ranks of his profession the lawyer must be something other than merely great as a lawyer. He must catch the popular fancy by advocacy. He must fire the imagination by eloquence. Not being a great orator or advocate, Lemuel Shaw was practically unknown to the layman. But judges and lawyers know well and appreciate fully the real worth of this truly great man whose figure looms larger as he recedes farther into the past. And, as his works were so largely confined to the field of jurisprudence, it would seem to be altogether fitting that some official recognition of the passing of a hundred years since he ascended the Bench be accorded to his memory by this Honorable Court.
It seems altogether fitting, too, that, in this county where he first graced the bench and where upon his retirement in 1860 the close of his judicial career was officially noticed by the court and by the bar, the completion of this century of development and progress in the law be officially noticed by the court.
To that end, then, the lawyers of Massachusetts, speaking through the Massachusetts Bar Association, desire to call to the attention of this Honorable Court the passing of this important centenary and I am directed to move that this Honorable Court may be pleased to take official notice of the fact that one hundred years have passed since Lemuel Shaw became its Chief Justice; and that it cause to be spread upon its records, if that shall be pleasing to it, some adequate and appropriate notice of these proceedings so that such an important event in the legal history of our Commonwealth may not pass unnoticed by this Honorable Court and by the bar of Massachusetts.
Frederick H. Chase, Esquire, on behalf of The Bar Association of the City of Boston, addressed the court as follows:
May it please your Honors: The fundamental principles of our law we accept without doubt or question. The confirmation of generations gives them a weight and credit which warrants our trustfulness. By long common observance they have become venerable axioms. Tried by whatever new analysis or test, these principles have always proved sound and true.
So, too, we take great men on the faith of our fathers, and do not fear to be misled. For the judgment of time is not often wrong, and a figure, which escapes oblivion and endures the ages with undiminished outline and distinction, must, we know, be made of more than common clay. And where fame stirs an interest to discover for ourselves of what nobility consists, the search is sure to repay our diligence and to reveal the elements we seek.
But, whether we examine the title to renown to see if it be clear, or rest upon tradition, it is well for our profession that it has borne men whose names are given more passing reverence. It is good for the law that it should have its representatives amongst the immortals. We must not forget that, though ours is a government of laws and not of men, yet it is one which must be administered by men, and that the vigor of the system depends upon the strength with which it is administered. Respect for law in the abstract depends upon the soundness of its principles, but confidence in the law as a governing force can be sustained only through the medium of firm and upright human agencies. We are often reminded that the rules of law which govern us are not arbitrary, fixed, and rigid, but are yielding and plastic, and can be moulded to fit the varying shapes of progressive times. The most ancient and honored precepts stand perpetually ready to meet new and perhaps transitory needs, to be reaffirmed in the light of current requirements, and to be restated and fortified in terms of present understanding.
It is gratifying to know that the importance of the never-ending task of exposition, application, and affirmance of the law is recognized by the community, and to find that whenever the work is performed with conspicuous ability and success, it receives the tribute of that undying gratitude which is the reward of lasting public service. Thereby the man who has upheld the majesty of the law, and sustained confidence in the integrity of its administration, becomes great. Thereafter his memory stands to cheer the hearts of those who come after him, and to give them strength inspired by the courage of his example.
Emerson says that "nature works very hard, and only hits the white once in a million throws. In mankind she is contented if she yields one master in a century."
The master of his century was Lemuel Shaw. Coming to the bench of this court one hundred years ago, fresh from the bar, he left it thirty years later a famous jurist. He had the confidence and respect of his own generation. He has received the admiration and reverence of posterity. No one has demonstrated to greater degree the importance of the man to the law. No one has done more to help us to keep our faith in the living force and beauty of the common law. He gave enduring assurance to society that judicial pronouncements come as the result of profound knowledge, earnest human consideration, and deliberate conviction. He has become our exemplar of justice, his name a maxim. His portraits even, so familiar to us all, carry conviction of his power. As we look at his likeness we are reminded of the legendary Greek who, when asked how she knew that Hercules was a god, replied, "because I was content the moment my eyes fell upon him."
He was one of those of whom Carlyle speaks when he says: "As many men as there are in a nation who can withal see Heaven's invisible justice, and know it to be on earth also omnipotent, so many men there are who stand between a nation and perdition. So many, and no more."
As the representative of The Bar Association of the City of Boston, the successor of the Suffolk Bar Association, of which Lemuel Shaw was one time president, I have the honor to join in the motion which has been made.
J. Bernard Boland, Esquire, on behalf of the Berkshire Bar Association, addressed the court as follows:
May it please your Honors: On the twenty-first day of August, 1860, the Honorable Lemuel Shaw resigned his position as Chief Justice of the Supreme Judicial Court of Massachusetts, and withdrew to private life. Two weeks later, in September, which is seventy years ago this month, the Bar Association of Berkshire County, where the Supreme Judicial Court was then sitting, with particular propriety recognized the close of this career which had begun in the fall term of 1830, one hundred years ago now in the same court room at Lenox where Chief Justice Shaw had first taken his seat. Proceedings were there initiated by the Bar Association for this county of Berkshire, and a few days later a meeting of the bar of the entire Commonwealth was held in Boston, representing all the counties of the State and expressing its regret at his resignation. It seems, therefore, most fitting that there should be, today, during this session of the Supreme Judicial Court for Massachusetts, a solemn commemoration, recognizing the one hundredth anniversary of the advent to this court in Berkshire County of Chief Justice Shaw, and the seventieth anniversary of its recognition in this county of his resignation.
History gives us the information that as a young man Lemuel Shaw enjoyed a close friendship with Nancy Melville, daughter of Major Thomas Melville of Boston, who was a leader in the Boston Tea Party in 1774, and later Surveyor of the Port of Boston. This friendship developed between the young couple and resulted in their engagement of marriage. The untimely death, however, of Miss Melville cut short their youthful dreams, and not until Lemuel Shaw was thirty-seven years of age were his affections again bestowed. He always held in tender memory his first betrothed, and subsequently in 1847 the families were actually united by the marriage of Shaw's daughter, Elizabeth, to Herman Melville, grandson of the old Major, and nephew of the fiancée, Nancy. Herman Melville had been a wanderer of the seas, has written many interesting and delightful accounts of his life, and is the same Herman Melville who lived in and was associated with the early history of this city of Pittsfield. Thus by a repetition of events in his life was Chief Justice Shaw particularly close to us members of the Bar Association for Berkshire County, aside from his very pronounced and honored position as Chief Justice of this Court. And may I in closing pronounce a sort of benediction, borrowing from Lemuel Shaw himself the thought and expression when he said, "On you, gentlemen, and your associates and successors, as the professed ministers of the law, it depends to maintain its character. From your ranks, subject to your training, must be drawn all those who are called to the office of judges; in truth, the value and efficiency of the jurisprudence of Massachusetts is committed to your charge. And my last earnest hope and prayer for yourselves and successors, and for all the people of our beloved Commonwealth, is that through an honorable practice of the law, and a faithful administration of justice, they may long continue to enjoy the inestimable blessings of liberty, safety, and peace.1
Chief Justice Rugg responded as follows:
Mr. President of the Massachusetts Bar Association and Brethren: The court gladly recognize the propriety of the action of the bar in making signal note of this anniversary.
One hundred years ago Lemuel Shaw was appointed chief justice of the Commonwealth. He was nominated on August 24, 1830, and confirmed and qualified on August 31, 1830. He first took his seat at the annual sitting of the full bench of the Supreme Judicial Court held at Lenox for the county of Berkshire on September 21, 1830. The court house in which that sitting convened on the third Tuesday of September, erected in 1816 and said to have been "surpassed in stateliness and elegance by few in New England," though still standing, is no longer the property of the county but is used as the home of the Lenox Library Association. It is altogether fitting and appropriate that on the centennial of that sitting the court and the bar should take special observance of that appointment. It was a momentous event in our history. The court over which he was called from private life to preside was no untried tribunal. Its unbroken history extended back to its original organization as the Superior Court of Judicature of the Province of Massachusetts Bay in 1692, making it now, if not then, the oldest court in continuous existence on the continent. It had performed its duties to the general satisfaction of the community. It had survived the shock of the Revolution. For fifty years it had been recognized and its name established by the Constitution of Massachusetts. During that half century judges of great eminence had contributed to its strength and had given it high distinction. Its first chief justice under the Constitution, William Cushing, had been called to the initial membership of the Supreme Court of the nation and a few years later had been appointed by Washington chief justice of the United States, an appointment declined for personal reasons, although confirmed by the Senate. Francis Dana, a statesman of proved capacity during the post-revolutionary period, whose descendants in several generations have achieved a lasting fame, had presided as chief justice with rare power for fifteen years. Theophilus Parsons, of great intellectual capacity and a highly constructive mind, an outstanding figure alike in statecraft and jurisprudence, in six years as chief justice brought about essential and surpassingly important improvements in the administration of justice.
His reputation as a practical reformer of the law persists untarnished and seems destined to endure. The picture of his immediate predecessor, Isaac Parker, portrayed by Shaw himself in this county as his first judicial utterance,2 shows him to have been a chief justice of no mean parts. The court had always met and probably surpassed in is achievements the just expectations of all the people. Its courage, wisdom, and vision are well illustrated by its decision that the adoption of the Declaration of Rights of the Constitution by its own force and without supplementary legislation abolished slavery within the Commonwealth and set free every person theretofore held in bondage. Yet the visible accomplishments of the predecessors of Chief Justice Shaw and his associates were comparatively small. There were no published reports of the decisions of the court until 1804, the year in which Shaw was admitted to the bar. In 1830 there were but twenty-five volumes of our reports. The range of subjects covered by these adjudications was narrow. Almost the whole field of law as practised today was uncultivated, undeveloped, unknown.
Chief Justice Shaw assumed these official duties in the plenitude of his great powers. A few months under fifty years of age, he had been trained by a broad experience in his profession and in legislation. He had been a member of both branches of the General Court and of the Constitutional Convention of 1820; he had participated in a celebrated impeachment trial and, against Webster as opponent, made the leading argument for the managers; he had engaged in the pioneer work of framing the first city charter of the Commonwealth. He was equipped with wide knowledge of men and affairs. He relinquished the certain prospect of large pecuniary rewards at the bar, at the earnest solicitation of Webster and Governor Lincoln, to devote the rest of his life to the judicial service of the Commonwealth. His place in juridical achievement cannot be measured aright except in the setting of the conditions and times in which he wrought. When he came to the bench the law was comparatively simple. The constitutions, both State and Federal, were new. Many then alive remembered their adoption. The great chief justice himself was born only a few months after the organization of our State government under the Constitution and was eight years old when Washington was first inaugurated president. Constitutional law was in its infancy, although a number of Marshall's epoch making opinions had then been delivered. There were few decisions touching the meaning and reach of our State Constitution. He was appointed chief justice at a time when the era of manufacture, of railroads and of inventions was opening. The capital of the Commonwealth was its only city. The law of eminent domain and municipal sanitation was almost uncharted. The public service corporation was scarcely known. Its law lay wholly in the lap of the future. Slavery was a recognized institution under the Federal Constitution and laws, and existed in several States. The possibilities of the police power for the promotion of the public welfare was a sealed book. A century ago a period of expansion was opening in the Commonwealth. Industrial conditions in the Commonwealth were almost completely transformed while he was chief justice. It was an unexampled opportunity and privilege for one of the extraordinary intellectual and moral stature of Lemuel Shaw to be its chief justice for thirty years. His great ability was greatly employed to this end. It was a severe test. He met its every requirement. When he left the bench, he had illumined by his judgments almost every branch of law within the jurisdiction of State courts. He had pronounced leading opinions touching every subject which required his attention. His giant figure has dominated our own jurisprudence. His prestige is confined by no State lines. It is a part of the strength of the common law. His opinions have frequently been relied upon in adjudications of the Supreme Court of the United States where they always have been mentioned with respect. Con- sciously or unconsciously they have been an important factor in the development of the common law jurisprudence of every other State of the Union. They have been cited with commendation by the courts of England. Whatever may have been the standing and reputation of the highet court of the Commonwealth in 1830, it is plain that its position of primacy in the hearts of the people and in the esteem of those learned in the law was beyond question in 1860.
The common law is always in a state of change. It is never finally settled. It must constantly be readapted to the shifting conditions presented by inventive genius, business sagacity, commercial adventure, social and humanitarian advancement, and progress in government. As the chief justice said in one of his opinions dealing with a new instrumentality for the convenience of mankind and the legal responsibilities of its owner: "It is one of the great merits and advantages of the common law, that, instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail, when the practice and course of business, to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circum- stances of all the particular cases which fall within it. . . . The effect of this expansive and comprehensive character of the common law is, that whilst it has its foundations in the principles of equity, natural justice, and that general convenience which is public policy; although these general considerations would be too vague and uncertain for practical purposes, in the various and complicated cases, of daily occurence, in the business of an active community; yet the rules of the common law, so far as cases have arisen and practices actually grown up, are rendered, in a good degree, precise and certain, for practical purposes, by usage and judicial precedent . . . . The consequence of this state of the law is, that when a new practice or new course of business arises, the rights and duties of parties are not without a law to govern them; the general considerations of reason, justice and policy, which underlie the particular rules of the common law, will still apply, modified and adapted, by the same considerations, to the new circumstances."3
Every branch of the law as then practised came under the moulding influence of his powerful mind during the three decades from 1830 to 1860. Changing customs and advancing civilization compelled the application of our law to a great variety of novel subjects and its extension into new domains. It would have been but human to make mistakes. But he would be bold who would undertake to point out errors in the work of the great chief justice. His opinions have been open to the world. They have withstood the merciless scrutiny and decisive trial of time. Experience has demonstrated their wisdom. They have remained for the most part unchanged and unchallenged. During his period of service fifty-six volumes were added to the Massachusetts reports.4 Within these volumes are about twenty-two hundred opinions written by him. They would probably fill twenty volumes of the size of one of our reports. It would be impracticable at this time to enumerate the great leading cases from his pen. If a murder case is to be tried, everyone, judge and counsel alike resorts for guidance to Commonwealth v. Webster.5 If the police power is in question, its sure and ample foundations under the Constitution are found in Commonwealth v. Tewksbury6 and Commonwealth v. Alger7 In the monumental discussion in the latter case the relative rights under the colony ordinance of the public and the landowner in the seashore where the tide ebbs and flows were settled for all time. If controversy arises as to riparian or public rights in nonnavigable streams, it can commonly be stilled by his elucidation of that subject in Cary v. Daniels.8 Whether the law of the jurisdiction where a contract made or of that where it is to be executed governs its construction and interpretation usually can be satisfactorily determined by examination of his opinions in Carnegie v. Morrison9 and May v. Breed.10 The contrast of the liberty of the individual under the Constitution with the demands of the people for restrictive limitations was illuminated by his discussions in Fisher v. McGirr11 and Jones v. Robbins.12 If the history of slavery in this Commonwealth is sought, it may be found in Commonwealth v. Anthes.13 The rights of laborers to combine for the promotion of their welfare were placed upon an enduring foundation by the pioneer adjudication in Commonwealth v. Hunt.14 The law of conspiracy there also was fully discussed. Several of his opinions lay the foundation for what has grown to be the highly important subject of conflict of laws. An eminent railroad attorney declared not many years ago that by mastering Shaw's opinions on railroads one would have a sure guide in principle for solution of modern problems in that branch of law. Broad jurisdiction in equity was not conferred upon our cours until three years before his retirement from the bench, but the equity jurisprudence then open under our statutes was constructively developed by his powerful mind. The underlying principles of negligence and torts, of insurance and agency, of commercial law in all its aspects, and of public service corporations may be found stated in his clear, comprehensive and unerring way in opinions dealing with a large number of practical controversies. Constitutional law is the peculiar fruitage of American institutions. It is the searching test of the American judge. There were comparatively few decisions on this general subject one hundred years ago. It is said that during Marshall's thirty-four years of judicial service the Supreme Court of the United States rendered sixty-one decisions on constitutional law, of which thirty-five were written by him. The nation was his stage, the world his audience. The discussions by Shaw, although frequently dealing with the Constitution of the United States, in the main covered the more restricted but intensively cultivated area of State constitutional law. During his thirty years of judicial service, one hundred and ten decisions involving distinctively constitutional questions were rendered by the court. Of these fifty bear his name. Eight advisory opinions were given during that period; it would not be venturesome to infer from their forceful reasoning and thorough discussion that these also were his work. All these opinions were unanimous with two exceptions. All of these judgments were comprehensive, clear to the common understanding, complete to the last detail. A very competent authority, who was also an able judge, after rereading every one of Chief Justice Shaw's opinions on constitutional law, declared that it would be "hazarding but little to say that no judge of any court was ever called upon to decide a greater number or variety of this class of important causes; and that no judge with the possible exception of Chief Justice Marshall, ever discussed these questions with a greater wealth of learning, with a more comprehensive view of the whole field of debate, or with a more profound insight into the nature and structure of our complex system of government."
The great chief justice had able associates. He would have been the first to attribute to them due credit for the prestige of the court. He was aided by arguments from those who constituted what may, without disparagement to any other period or to the present, perhaps well be called the golden age of our bar. Webster, Choate, Curtis, Dana, the Hoars, father and two sons, Cushing, Bartlett, Rockwell, Ashman, Allen, Washburn enlightened the court by their wealth of learning and intellect. Nevertheless, his was the master mind in the opinions of the court. He gave them a cogency of reasoning, a persuasiveness of argument, an abundance of illustration, a lucidity of statement, a soundness of conclusion, which were all his own. He exemplified the claim of Chief Justice Marshall, modestly expressed as his own rule of conduct, that he "had never sought to enlarge the judicial power beyond its proper bounds nor feared to carry it to the fullest extent that duty required." Or, to state the same thought in the language of one of the judgments of the court written by Marshall: "As this court has never grasped at ungranted jurisdiction, so will it never we trust shrink from the exercise of that which is conferred upon us."
By common consent he had all the learning of the law which the past could afford. He used it as a means for the accomplishment of justice. He encountered his full share of the storms which are bound to center about a great and fearless magistrate. Public feeling ran high and hot concerning some of the questions he had to decide. The turbulent waves of contending factions broke harmless at his feet. His character, his wisdom, his power of convincing statement, the clearness of his exposition of governing principles -- above all his sense of justice -- prevailed in the end over all opposition. He never confused the incidental with the vital. He had the rare faculty of separating the trivial from the essential, the ancillary from the dominant. The cardinal virtues of the ancients -- justice, temperance, prudence, fortitude -- were his. Imagination of a very high order and an extraordinarily well balanced judgment are attributes of a judge of the first degree of excellence. Our great chief justice possessed those attributes. He seemed to see all sides of every question presented for determination. He had the rare power to visualize the effect of the judgments of the court upon wholly diverse facts and upon unborn controversies. He had the prevision to apprehend tne ramifications of every legal principle declared. He was able to project them into the future and to shape them to the advantage of the time to come. To name his characteristics is to enumerate all the faculties which combine to make an ideal chief justice: breadth of vision, depth of insight, power of generalization, soundness of judgment, accuracy of discrimination, clarity of expression, strength of character, wide range of learning, driving force over himself, unerring discretion, unclouded perceptions, unquenchable zeal for the right, reverence, a religious spirit, indomitable courage; all these were moulded by dominant intellectual ability and ethical power into a unified force for the achievement of justice according to law.
The first act of Chief Justice Shaw on assuming the duties of his office in this county was to deliver an address before the bar of Berkshire in commemoration of the life and character of his predecessor. In passing, it may be noticed that this address contains an admirable account of the history of the development of trials from the adoption of the provincial charter onward to that date. In describing the traits of Chief Justice Parker, for whom he had a deep and warm admiration, it well may be that he stated his own conceptions of the elements of great judicial service in these words: "...the predominant object of his life, the leading motive to all his actions, was to be found in a sincere and entire devotion to the great duties of his office, and an unshaken determination to discharge these with strict fidelity, to the utmost extent of his power. His industry was exemplary and most praiseworthy. In forming his judicial opinions, he proceeded with the utmost caution, patience, and persevering research, availing himself of all the aids of argument, of all the light to be derived from judicial authority, or the reasonings of others, and not unfrequently relying at last, and relying justly, upon the sdictates of a mind, quick to discern, and anxious to allow, the claims of justice and natural equity, and at the same time deeply impressed with the importance of steadily maintaining the established rules of law. He labored to place his judicial decisions upon some tenable ground of principle, which would neither violate the rules of positive law, nor yet lose sight of the real justice and merits of the case."15 The warmth of expression of friends and contemporaries in attempting to delineate correctly the outstanding characteristics of a powerful personage honored in his day, whose activities are ended, does not always, perhaps not often, accord with the judgment of posterity. This criticism cannot rightly be levelled at the tributes pronounced at the conclusion of the service of Lemuel Shaw as chief justice. In the resolutions of the bar of Berkshire presented to the court upon his retirement seventy years ago, reference is made to "the acuteness and power of his intellect, his sound and varied learning, his patient and faithful investigation, his sensibility to the natural justice and equity of particular cases, and, yet his inflexible regard to the uniformity of established legal principles."16 In a communication presented to the retired chief justice by representatives of the bar of the Commonwealth in a summary of the essential means by which a chief justice secures the usefulness of a court occurs this: "Integrity, on which the community leans with absolute confidence; learning and industry equal to all occasions; the faculty of assisting the tribunal to speak the consenting voices of several minds, as if they were the conclusions of one; the power of maintaining amid the conflicts of the bar the supremacy of the bench."17 The resolutions presented to the court shortly after his death and drawn by one of the most eminent in the profession of that day contain this passage: "...in looking back upon the judicial life of the late Chief Justice of the Commonwealth, and in taking the gauge and dimensions of his worth, we miss in him no one quality that goes to make up the great judge. We find, ample, ready and well-digested learning; strong common sense; acute logical power; accuracy of perception; clearness of exposition; discriminating analysis; the skill to apply old principles to new cases, and solve novel problems by established formulas; a mental glance equally wide in range and minute in observation. These intellectual attributes were sustained by corresponding moral traits; by inflexible justice, untiring industry, calm courage, unwearying patience and tender humanity. Qualities so rare, so happily combined, so long exerted, entitle him to a place in the first class of the great magistrates who have administered and expounded the common law, whether in England or America."18 In the proceedings attendant upon the presentation of these resolutions to the court it was said: "For the high degree of symmetry and harmonious development to be found in the science of the law as administered in our courts, we are largely indebted to his comprehensive and vigorous intellect, clear insight into the wants of society, and the remarkable judgment which guided him in the practical application of the principles of the common law to the ever-growing necessities of a great State, constantly increasing in population, refinement and wealth."19 For many years he was a member of the corporation of Harvard. A minute adopted by its governing board admirably summarized the broadness and the strength of his great qualities: "The President and Fellows of Harvard College are profoundly affected by the loss of that great and good man, a jurist, preëminent among his contemporaries in the State and the nation; a scholar of large and various acquirements; a magistrate, whose comprehensive wisdom, patient and untiring industry, learning, fidelity, courage, firmness, and thorough love of truth and justice, gave security to all the interests of this Commonwealth and strengthened the foundations of civil society; a citizen, who knew and fully appreciated the traditions, the usages, the institutions, and the character of the people of his native State, to whose service he freely devoted the whole of his great powers; a patriot who loved his country; a man, steadfast in adherence to principle, of a tender and generous heart, and of a spotless life."
Seventy years have elapsed since these utterances. They were made in the shadow of deep regret and genuine sorrow for the retirement of the great chief justice who for so long had guided the administration of justice with a sure hand and consummate wisdom. They are undimmed by the passage of time. They glow with truth. They carry now a weight impossible when uttered. They have been stamped with verity by the experiences of seven intervening decades. After three score and ten years they express as well as words can at the present moment the feeling of bench and bar for the matchless genius manifested by the life and works of Lemuel Shaw as chief justice. The country pays reverence to Marshall as the expounder of the Constitution of the United States and the founder of the conceptions of that instrument under which the nation has weathered the storm of civil war and has become great among the powers of the world. We think it not too much to say that what Marshall did for constitutional law, Shaw has done for the common law of the country. He envisaged its possibilities for the general welfare; he laid deep the foundation of its enduring principles; he illustrated their strength and vigor in application to new conditions and an altered civilization. Our own law rests sure and steadfast upon the foundation he laid. The structure of jurisprudence in many a State owes a vast debt to his work. The corner stone may be unseen; it endures unshaken, secure, sufficient. Concerning the common law in its adaptation to modern conditions, the lofty tribute might well be paid him that he "found it a sealed book, he left it a living letter."
The addresses at the bar admirably portray outstanding features of the judicial career of Lemuel Shaw. The motion presented in behalf of the bar is granted. These proceedings may be extended upon the records of the court.
1 15 Gray, 608. 2 See 9 Pick. 566. 3 Norway Plains Company v. Boston and Maine Railroad, 1 Gray. 263, 267-268. 4 9 Pick.--24 Pick.; 1 Met.--13 Met.; 1 Cush.--12 Cush.; 1 Gray--15 Gray. 5 5 Cush. 295. 6 11 Met. 55. 7 7 Cush. 53. 8 5 Met. 236. 9 2 Met. 381. 10 7 Cush. 15. 11 1 Gray. 1. 12 8 Gray. 329. 13 5 Gray. 185. 14 4 Met. 111. 15 9 Pick. 577. 16 15 Gray. 599, 600. 17 15 Gray. 603, 604. 18 1 Allen. 599. 19 1 Allen. 597-598.
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