Marcus Morton

153 Mass. 601 (1891)

Memorial

The Honorable Marcus Morton, a Justice of this Court from the fifteenth day of April, 1869, and Chief Justice from the sixteenth day of January, 1882, to the twenty-seventh day of August, 1890, died at his residence in Andover on the tenth day of February, 1891. A meeting of the members of the Suffolk Bar was held in Boston on the nineteenth day of the following May, at which resolutions were passed which were presented to the full Court on the same day. Before presenting them, the Attorney General addressed the Court as follows:

Your Honors : I have to present the final testimony of the Bar to their respect for the life and character of the late Chief Justice Marcus Morton. It is but a few weeks since we assembled, under circumstances of like solemnity, to notice the death of a beloved and honored member of this Court. The event which brings us here today was then impending, and the late Chief Justice followed his former associate out of this life after so brief an interval as strikingly to remind us "what shadows we are, and what shadows we pursue."

It will become me to add but little to the memorial of the Bar, save a few additional particulars of his life and public services. He was of the blood of the Pilgrims, tracing his descent from George Morton of the Plymouth Colony by his marriage with Ann Southworth of the company of the Mayflower; and he possessed to a marked degree the traits of the men who founded and peopled New England.

He was born at Taunton, April 8, 1819 the son of Marcus Morton who was from 1826 to 1840 a Justice of this Court, and in 1840 and 1843 Governor of the Commonwealth. Graduating from Brown University in 1838, he studied law in the office of Judge Peleg Sprague, was admitted to the Bar in 1841, and practised in Boston for seventeen years.

His first appearance in public position was in that remarkable body of men, the Constitutional Convention of 1853, in which he sat for Andover, which was his home from 1850.

His service in the House of Representatives in 1858 is still remembered by some of his reports on important questions of election law, which have always been followed by the House as authority. It is noted in the memorial of the Bar that he served in each of these bodies with his father, and while the record hardly bears out the tradition that father and son never voted on the same side, they were of different political parties, and they seem to have differed in opinion on other questions, so far at least as to indicate the independence of character which distinguished them both.

His judicial service began with his appointment to the Superior Court of Suffolk County in 1858, and continued unbroken, except by promotion, until the pressure of declining health, which had led him some months earlier to seek rest and relief from his work, compelled his retirement from the head of this Court in August, 1890.

Your Honors remember the universal regret with which the community, and especially the Bench and Bar, received the intelligence that he had taken final leave of his office. He was a plain and unassuming man, who would have been the first to condemn any extravagance of eulogy, but he had steadily grown in the confidence of the bar and of the people for the thirty-two years of his judicial career.

He was of strong rather than brilliant parts, patient, always accessible, of sufficient learning, and of practical sagacity amounting almost to genius, rarely exciting admiration perhaps, but never arousing apprehension. He seemed to have little respect for the "sharp quillets of the law," taking always a broad and comprehensive view of the subject in hand, and placing his judgment "upon the whole case" a favorite and characteristic expression. He was what lawyers call a safe judge, to whom they committed their causes with perfect confidence in his legal discernment, and in those qualities of his mind which always kept it true to substantial justice, according to the actual merits of the case.

He never filled so large a place in the public eye as some who have sat upon this bench, but he never sought or appeared to seek distinction. It is a familiar reflection, that, as some of the greatest forensic and judicial qualities are those which least attract the public notice, furnishing no title to fame or even to remembrance, the memory of great lawyers, and even of great judges, too often survives only in the fugitive traditions of the Bar.

But Chief Justice Morton established in fifty volumes of our Reports a lasting monument to the fidelity and ability with which he served the State, and he bequeaths to us the memory and example of a citizen and magistrate on whom the Commonwealth leaned with a confidence which grew with the length of his judicial service, and whose only ambition was satisfied in the faithful discharge of a great trust.

The Attorney General then presented the following resolutions:

The members of the Suffolk bar hereby express their sense of the great loss which the Commonwealth has suffered in the death of the Honorable Marcus Morton, late Chief Justice of the Supreme Judicial Court, their high appreciation of his long and valuable judicial services, and their respect for his character.

He was born of the best Massachusetts stock. He was of a line distinguished from the beginning in the political and judicial service of the State. The legal instinct -- the aptness alike for the making and the exposition of the law -- was his by inheritance. He was fortunate in receiving the education of the New England school and college. Upon his admission to the Bar he at once took high rank. He was a member of the Constitutional Convention in 1853, and of the popular branch of the Legislature in 1858, and it is noteworthy that he served in both those bodies with his father, who had himself been Governor of the Commonwealth and a Justice of the Supreme Judicial Court.

Appointed to the Superior Court for the county of Suffolk in 1858, and to the present Superior Court at its organization in 1859, promoted in 1869 to the Supreme Judicial Court, serving in this Court till his resignation in 1890, and for the seven years prior thereto as its Chief, he rounded out more than thirty years of judicial life, the whole record of which is a monument to his integrity, his legal comprehension, his sound judgment, his practical good sense, and his judicial strength.

His sense of justice was direct and vigorous. He conveyed the impression of a mind earnest to make the law the vehicle, not of a refinement, but of the right. He was in touch with his fellow men, parties and the Bar felt an instinctive confidence in his openness to their coming and in his respect for their rights.

In recognition of his important and valuable public services and of his upright character, the Suffolk Bar respectfully asks the Attorney General to present this memorial to the Supreme Judicial Court, with the request that it be entered on its records.

Mr. Justice Charles Allen responded as follows:

Mr. Attorney General and Brethren of the Bar: In the retirement and death of Chief Justice Morton, Massachusetts has lost one whose gracious presence has long been familiar to those who have had much to do with the courts. His term of judicial service in three courts was more than thirty years. He was a member of this Court for more than twenty-one years, a longer time than any Justice has served since Mr. Justice Dewey, who died in 1866. Under the State government, only six Justices of this Court have served for longer terms than he. A conspicuous figure in the jurisprudence of the Commonwealth has been removed from our sight, and we do well to pause frorn our customary labors, and seek a lesson from his memory and example.

The life of Chief Justice Morton was almost exclusively a professional one. His membership of the Constitutional Convention of 1853 can bardly be considered as a substantial interruption of his practice at the bar. His service in the Legislature was limited to a single term.

He did not take a prominent part in the debates of the Convention, but it is interesting to recall that his first public act was to introduce an order for an inquiry into the expediency of expunging or amending that part of the Constitution which provides that each branch of the Legislature, as well as the Governor and Council, shall have authority to require the opinions of the Justices of this Court upon important questions of law, and upon solemn occasions. The committee to which the matter was referred reported in favor of making this change, and after discussion it was agreed to by the Convention, and it was accordingly incorporated into the Frame of Government which was submitted to the people and rejected by them.

As a nisi prius judge, he has had few superiors in the history of the Commonwealth; indeed, it seems to me few equals. He had an intuitive sense of how a wise man, without special legal training, would look at the questions which came before him for determination. Carefully balancing a case in his mind, he was apt to perceive the controlling considerations on the one side and the other, and he bad a happy faculty of giving to each its just weight. His acquaintance with the learning of the books was adequate. He had an unusually good knowledge of the criminal law. He had also a large acquaintance with the habits and methods of New England life. He had an excellent capacity for administration, and was prompt and ready in dealing with matters which came up to be acted upon. When a law question was fairly presented, which ought to be passed upon, he did not seek to avoid it, or take refuge in mere ambiguous generalities, but gave to one party the benefit of a ruling in his favor, and to the other party the benefit of an exception. In summing up a case to a jury, he was especially successful in presenting a view of the law which could be understood by them, and accepted as embodying sound practical sense, and which aided them to look at the questions of the case in their proper perspective and proportion ; not dwelling too much on unimportant fine distinctions, and perplexing details. In a trial for murder, depending upon circumstantial evidence, I once expressed surprise at the shortness of his charge; and he gave it to me as the result of his experience, that it was better not to dwell too much in detail upon the testimony in such a case, lest one's own opinion should be too apparent. His fairness and impartiality were beyond suspicion of bias.

I cannot think that his reputation as a nisi prius judge will fade away, at least during the lifetime of those lawyers who practised much before him.

His more permanent reputation, however, must rest chiefly upon his judgments contained in the volumes of the Reports. These are over twelve hundred in number, extending from Volume 102 to Volume 150. In style, he was compact, forcible and clear. He usually contented himself with stating as plainly as he could the doctrines which were determined, with a brief expression of the principal reasons in support of them. He rarely indulged in a long discussion, or in the citation of very many authorities or precedents. He was a master of the art of putting things. He had the fine gift of being able to say things, well, and in a few words. His opinions on the average were probably shorter than those of either of his associates. In preparing them, he did not like to anticipate questions which might come up at a later day, and preferred to leave such questions for discussion and decision when they should arise. Yet few persons could be more far-seeing and wise than be, in respect to possible limitations of general rules. There are in his opinions comparatively few dicta which will require to be overruled or qualified. These judgments, taken as a whole, will I believe well stand the test of time, as carefully stated, clear, and satisfactory expositions of legal principles.

Indeed, in his method of performing the various judicial duties which rested upon him, there is but little to criticise. His administration of the law was such as to deserve and to obtain the confidence of the profession and of the people. It tended to secure substantial justice to suitors. It advanced the good name of the Commonwealth. It brought credit upon the Judiciary. His methods were simple, direct, straightforward, with a hatred of shams, and a noble scorn of meanness and trickery, and of all forms of fraud. He had a mind clear and quick to appreciate both law and facts; a wise and sound judgment; courage to decide according to his conviction of what was right, regardless of all else; and firmness, which left him undisturbed by criticism or dissent. In court, he combined a good degree of forbearance and patience with his unusual faculty of despatching business rapidly. He seldom acted, even when the circumstances might have allowed it, upon the saying of Lord Lyndhurst, that it is the duty of a judge to make it disagreeable to counsel to talk nonsense.

In the consultation room, his mind was always open to any point of view which bore upon the case: his own arguments were forcible, and often earnest, but were never urged in a spirit of captiousness; and if, as happened occasionally, be found himself in a minority, it was his habit, like that of Chief Justice Marshall, to acquiesce without a formal dissent. I recall no dissenting opinion published by him, though be concurred in some of those which were prepared by others.

In all that related to the conduct of the business of the Court with his associates, his methods and temper were truly admirable; so as not only to awaken their respect, but to secure their warm affection. After an experience with him of eight years, I do not see how any one could have administered these duties, often delicate, in respect to his associates with more fairness and kindness to us all than he constantly showed; so that we all came to feel that our relation was not merely official, but that he was always carefully solicitous to make our duties as easy and pleasant as was possible. The severing of such a relation could not be otherwise than a great grief to us.

In private life, his tastes were chiefly domestic. Like Chief Justice Parsons and most of his other predecessors in the office of Chief Justice, he was averse to taking part in a public dis- play, and especially on occasions where a speech would be expected from himself. This disinclination, however, was not invincible, and many of you will remember with pleasure the Bar dinner, where he was an honored guest, and where his remarks showed the practical turn of his mind, being largely devoted to suggestions for improving the arrangements for transacting the business of the Court.

Life was pleasant to him till he was forced by ill health to retire from the duties of his office. In the performance of his work while unwell, he showed a quality of heroism; persistent, though suffering. He enjoyed his work, and his relations with his associates and with the Bar. In a letter written last September, he said, "It is a source of satisfaction to me to reflect that during the time I was the Chief Justice the relations of all the Justices were so pleasant and harmonious" ; and he afterwards added, I shall always regard the time when I was Chief Justice as the happiest period of my life."

In his retirement, he must have had the satisfaction that comes from the consciousness of having well performed his part in life; and of possessing the approbation, respect, confidence, and affection of the Bar and of the public.

One cannot forget today the timely action of members of the Bar, only a short time before his withdrawal from active labors, in procuring the lifelike portrait which is to adorn some room in the new court-house; a worthy representation of an eminent Chief Justice.

The changes that take place in this Court, alas so frequent, are full of admonition to us who remain, that, however much we may fall short of the success of the great men who have gone before us, we too should strive to attain to some measure of usefulness in our day and generation, and endeavor so to administer the law as to make it a safeguard, a protection, and a blessing to the Community.

A memorandum of these proceedings will be entered upon the records of the Court.

The Court then adjourned.