361 Mass. 912 (1972)
A special sitting of the Supreme Judicial Court was held at Boston on April 11, 1972, at which a Memorial of the late Chief Justice Raymond Sanger Wilkins was presented.
Present: Chief Justice Tauro, Justices Cutter, Spiegel, Reardon, Quirico, Braucher, and Hennessey, and retired Justice Spalding.
Robert H. Quinn, Attorney General, addressed the court as follows:
May it please the court: As the Attorney General of Massachusetts it is my privilege and honor to present -- on behalf of the bar of this Commonwealth -- a memorial in tribute to the late Raymond Wilkins.
Chief Justice Wilkins was born in Salem on May 24, 1891, the son of Samuel Herbert Wilkins and Marietta Burke Rowell Wilkins. His father was a businessman, but his forebears had been farmers and artisans on the North Shore for generations. His early education was in the Salem public schools and, following his graduation from Salem Classical High School, he entered Harvard College at the age of seventeen. He received his bachelor of arts degree, cum laude, in 1912 and entered Harvard Law School the following September. While at College his scholastic achievements had earned him membership in Phi Beta Kappa. In June of 1915, he received his bachelor of laws degree from the Harvard Law School, cum laude (he had served as an editor of the Harvard Law Review), and after graduation became associated with the Boston law firm of Storey Thorndike Palmer & Dodge. He was to practice with this firm (becoming a partner in 1922) until his appointment to the bench of this court twenty-nine years later.
Judge Wilkins' legal career was interrupted by World War I. As an officer of the 301st Field Artillery he served overseas with the 76th Division. He came back from France as a captain and returned to the practice of law. In 1923 he married Mary Louisa Aldrich of Fall River. In 1926, he moved to Winchester, a town he was later to serve with distinction as a member of the Finance Committee (1932-1935), Selectman (1935-1937), and Moderator (1940-1943).
His practice at the bar in the twenties and thirties was chiefly as an advocate, and he quickly made his reputation as one of the Commonwealth's outstanding trial lawyers. His public service to the Commonwealth began in 1939 as counsel to his friend and fellow-officer in the 301st Field Artillery, Governor Leverett Saltonstall. He served Governor Saltonstall in that capacity until he was elected by the General Court in March, 1941, to fill a vacancy in the Governor's Council, a seat which he held until 1943. The directness of his thought and the straightforwardness of his speech are illustrated by his words of acceptance at the Joint Convention of the General Court upon his election: "I appreciate very much the honor which you have conferred upon me and I shall do the very best I can. Thank you."
Raymond Sanger Wilkins was appointed to this court on January 26, 1944, filling the vacancy left by the resignation of Mr. Justice Cox. Judge Wilkins was then, at fifty-three, the youngest member of the court. He participated in the consultation of the court on January 31, 1944, and first sat on March 6, 1944. He served with distinction as an associate justice until September 13, 1956, when he became eighteenth Chief Justice under the Constitution, succeeding Chief Justice Qua. On September 1, 1970, he resigned in his seventy-ninth year.
A circulatory ailment had necessitated a leg amputation some four years earlier, but Chief Justice Wilkins had continued to perform his duties with undiminished vigor, an example of fortitude to all. At his death on May 12, 1971, he was twelve days short of his eightieth birthday.
Others will speak in more detail of Judge Wilkins' work as a member of this court. For myself, his liberalism, that is, his concern for his fellow humans, is exemplified in his humane dissent in Paltsio's Case, 325 Mass. 356, decided in 1950.
His conservatism, that is, his concern for the preservation of country and Commonwealth, is illustrated by the criticism of the Supreme Court of the United States voiced in 1958 by Chief Justice Wilkins and nine other Chief Justices as the Committee on Federal-State Relations of the Conference of Chief Justices. The Committee's report in substance charged the Supreme Court of the United States with adopting the role of policy maker and failing to exercise proper judicial restraint; with an impatience extending to "an unwillingness to wait for Congress to exert the power conferred upon it by the Constitution." Parenthetically, it was characteristic of Chief Justice Wilkins that during the controversy generated by the Committee's report, he was heard publicly to say, again and again, "I did not give up my right of free speech when I became a judge."
Off the bench as well as on, Judge Wilkins was truly a man for all seasons. He was, for example, a man of music. In the office of the Supreme Judicial Court Law Clerks, downstairs in the Social Law Library, there was treasured for years a tattered copy of a 1944 issue of a national picture magazine showing Raymond Wilkins at the xylophone, playing as a member of the group of prominent Boston business and professional men he organized during World War II to entertain servicemen. In 1944, the Office of War Information had recorded, and sent to our troops overseas, his composition entitled "V-DAY PARADE MARCH." Earlier, in 1937, on the occasion of the 25th anniversary of his college class, it was Raymond Wilkins who conducted the Boston Pops Orchestra in another of his own compositions. His musical interest ranged from the Boston Symphony Orchestra, of which he was for years a trustee, to collecting the music of "Tin Pan Alley," a collection he donated to Harvard. He kept in his head the words and music of hundreds of popular songs and at parties he delighted his friends by sitting at the piano for hours playing the songs which, as he put it, "entertained me from my earliest recollection on through life."
His interest in the nation's history had centered early upon Abraham Lincoln and the Civil War. His library of Civil War material is happily preserved in the Boston Athenaeum, of which he was also trustee.
The Solicitor General will refer to his deep and enduring devotion to Harvard, as Secretary of the College Class of 1912; as overseer; as a member of various visiting committees; and as a loyal alumnus of the Law School.
But Raymond Wilkins' interest was not only in ideas -- nor in institutions -- he was interested in people. He was widely known and deeply respected. He had friends in all circles and of all ages. This is well demonstrated by an incident not many years after he was appointed to the bench. The court had occasion to invite a Catholic clergyman to open court with a prayer and Chief Justice Qua understandably asked Justice James Ronan, who was of the Catholic faith, to extend the invitation. Judge Ronan's reply was: "Let Ray Wilkins handle it; he knows more Catholic priests than anyone I know."
Judge Wilkins was a member of this court for twenty-six years and Chief Justice for fourteen. These were years of great change, not only for the world outside the courtroom, but in the work of this court. For example, in the judicial year 1956-1957, the first year in which he presided as Chief Justice, this court passed upon a total of 257 matters. These included 218 cases decided with full opinions; 36 decided with so-called rescript opinions and 3 advisory opinions. In 1969-1970, the last year in which Chief Justice Wilkins presided, the work of the court had increased 30% over 1956-1957, the court passing upon 336 matters and rendering 233 opinions with full decisions, 96 with rescript opinions and 7 advisory opinions. Most significantly, the work of the court in 1956-1957 included only 12 criminal cases; in 1969-1970, this court decided more than five times as many criminal cases. In the same span of years, the caseload of the single justice session increased approximately 427%.
Noteworthy also are the important rule changes that occurred during his tenure as Chief Justice. During that time the court adopted rules providing for representation of indigent defendants; permitting pretrial oral discovery; governing contingent fees in tort cases; establishing the committee on complaints concerning the judiciary; and authorizing law students to defend in certain criminal cases.
The words of the citation that accompanied the award to him (by Harvard University) of one of his many honorary degrees well summarize his work as a judge: "Salve, vir docte, qui modo urbanissimo splendida arbitria facis -- Hail, learned man, who, in the most urbane manner, renders shining judgments."
Mary Louisa Aldrich Wilkins had died on November 20, 1954. Two years later Judge Wilkins married Katharine Schuyler Crosby, who died November 29, 1959. In August of 1965, Judge Wilkins married Mrs. Georgie Hebbard, widow of a close friend, who survives Judge Wilkins. He was also survived by two sons and ten grandchildren.
Raymond Sanger Wilkins will long be remembered (as was said at his funeral service): "For his life-long sense of personal vocation in the human rite of justice; for the way he cared for excellence; for the cleansing power of his honesty flowering from strong roots of inner integrity; for the clarity of his mind and judgments; for the rich complexity of his concerns and endeavors for the community, the arts, schools; (and) for the gift of humor that kept steady in his life true proportion. . . ."
On behalf of the bar of the Commonwealth, I move that this memorial be spread upon the records of this court.
Erwin N. Griswold, Solicitor General of the United States, addressed the court as follows:
May it please the court: Others will speak about Chief Justice Wilkins' work as a lawyer and a judge. But he was a many faceted man, and I want to record some aspects of his contributions to legal education, to his University, and to this community.
I first heard of Ray Wilkins in the 1930's, when he was a rising, but already leading, practitioner in Boston. Of course, he came more prominently to my attention in 1944 when he was appointed to the Supreme Judicial Court. But it was after I became Dean of the Harvard Law School in 1946 that I came to know him well and to be aware of his deep interest in education generally, and in legal education, to value his sage advice, and to appreciate his unfailing interest and help.
For twenty years, with the exception of a single year, from 1950 to 1970, Ray Wilkins was a member of the committee appointed by the Board of Overseers of Harvard University to Visit the Law School, commonly known as the Visiting Committee. He was its Chairman for three years, from 1960 to 1963.
Prior to that, Wilkins had long been active in the alumni body of the law school, known as the Harvard Law School Association. He was its President from 1955 to 1957. In these capacities, he visited the school frequently and never failed to respond helpfully to requests for his advice. He had a somewhat direct and occasionally gruff way of expressing himself on these matters, which some might have thought a little crusty. But the depth of his interest, and the warmth of his concern were always apparent. As a student he had been a founding member of the Harvard Legal Aid Bureau, and he retained his interest in helping students to learn and to help their fellow citizens by recognizing for them a useful role in the administration of justice.
At Harvard, his interests were widespread and by no means limited to the Law School. He was a member of the Board of Overseers, elected by the alumni, from 1957 to 1963. During the first five of those years he was a member of the Executive Committee of the Board. He became a member of the Visiting Committee for the History Department in 1947, and continued on that Committee until 1962, serving as Vice Chairman of the Committee from 1953 to 1959, and Chairman from 1959 to 1962. He was also Chairman of the Committee to visit the Classics Department from 1957 to 1962. In addition, however, he was, at various times, a member of the Visiting Committee for the Department of Slavic Languages, for the Harvard University Press, for the Music Department, and for the University Library. His service on these Committees was active and constructive. It evidenced the extent of his cultural interests and also his willingness to help in many ways in the work of the University.
In addition, during his period as Chief Justice, Wilkins served for many years as a highly valued member of the Council of the American Law Institute and as an adviser on two of its restatements (Trusts and Agency). He was also for many years an officer of the Boston Legal Aid Society, and became its honorary president. He was at one time or another, a trustee of the Boston Symphony Orchestra, and of the New England Conservatory of Music, as well as a member of the corporation of Northeastern University, and of the Massachusetts Institute of Technology. In none of these capacities was his service merely formal. He was always willing with his advice, and those who were working with him came to know that his advice was carefully considered, and worth heeding.
The Chief Justice was a very painstaking and thorough man. He did not use words freely or loosely. He held himself to high standards, and expected the same from those with whom he dealt. He was not at all routine in his thinking and outlook. He encouraged innovations, and was sometimes rather pointed and persistent in advancing them. As far as I can recollect, he was never merely critical or complaining. He had great courage, too, as was indicated by his surmounting physical handicap in his later years.
As indicated by the diversity of his service on visiting committees at Harvard, his background of interest and training was very broad, and his talents were unusual. He made his talents effective by devoting tremendous energy to his work, and to the commitments which he made to education and other forms of public service. When he approached a task, he focused on that task. He did not mince words. If sometimes he may have seemed a little blunt, this was offset by an evident sense of humor, not bubbling and hilarious, but tangy and down East.
He had a devotion to the law, to the Commonwealth, and to all those who joined with him in a concern for education and self-government which was a constant source of inspiration to those who worked with him. We have lost a friend as well as a great figure of the law. It is fitting that his fellows of the bar should gather here to express their appreciation of his manifold contributions, and to voice their satisfaction in having known him and worked with him in the common and ineluctable search for public justice. The greatest task of man on earth is the development of just and effective self-government. Chief Justice Wilkins has earned our gratitude for the wisdom, spirit and energy which, as a great man of the law, he devoted to that quest.
Theodore Chase, Esquire, addressed the court as follows:
The late Chief Justice Wilkins was a complex man -- talented in every field he tried, witty, gregarious and endowed with tremendous energy. The qualities which marked his judicial career would have made him a prominent man in any sphere of life.
When he was forty-six years old Judge Wilkins wrote that "one should actually participate to the fullest extent he is able in government and public affairs, at least if he cares effectively to preserve any independent right of criticism." He richly earned, and sometimes exercised, that right in his own career. Reference has already been made to the many public activities in which he engaged before the beginning of his twenty-six years as a member of this court.
He greatly enjoyed the company of men and women. His tremendous vitality enabled him, while keeping up with his work on the court, to attend a constant succession of ceremonial occasions, dinner parties and social events, and he enjoyed them all immensely. When called upon to speak on any occasion, as he frequently was, he invariably spoke without notes but with wit and humor and to the point. He had a passion for accuracy in everything he said and wrote and in what other people said as well. (In a masterful article entitled "The Argument of an Appeal," which he wrote for the Cornell Law Quarterly only three years after going on the bench, he emphasized the importance of proofreading one's brief: "It should utterly eliminate typographical errors.") His recollection of dates and titles and middle initials was remarkable. It was good fun to be with him on any occasion, for he had an inexhaustible supply of information on a great variety of subjects; his repartee was amusing and his comments on contemporary events and reminiscences of people always stirred one's interest.
The Chief Justice had an extraordinarily wide acquaintance with the members of our profession. Most members of the bar will remember him because of some personal contact, some incident or characteristic which has left a lasting impression. Many of them have appeared before this court over which he presided and will recall his probing questions, his quick grasp of argument and his clear insight into the motives and actions of others.
Those members of the profession who are familiar with the opinions which he wrote will recognize his ability to deal meticulously when the occasion required or to avoid detail when no need appeared. Many of the decisions reached by the court over which he presided and formulated in opinions written by him had profound implications. Consider, for example, the decision forbidding discrimination in private apartment buildings, the decision upholding the racial imbalance laws and a series of decisions broadening criminal defendants' rights of representation. And reference has been made by the Attorney General to the new rules of court adopted under his leadership.
On October 27, 1970, shortly after his retirement, our profession honored Chief Justice Wilkins at a dinner at which the Governor and distinguished representatives of the bar had an opportunity to assure him of their reverence and affection. Following that dinner a collection of articles about the Chief Justice and various aspects of his career was published in the Massachusetts Law Quarterly. And so the words of another Attorney General on an occasion precisely similar to this, which occurred one hundred and eleven years ago almost to the day, honoring that great chief justice, Lemuel Shaw (with whom Chief Justice Wilkins had much in common), are peculiarly apt:
"It is a satisfaction to remember that a few months ago, on the occasion of his retirement from the bench, the bar, by its most distinguished representatives, had the opportunity of assuring the late Chief Justice of their reverence and affection, and that his last days must have been cheered by the consciousness that he had gained that reputation which . . . 'consists in the deliberate and lasting approbation of the wise and good, and which . . .' is the best reward of public service."
Wilmot R. Hastings, General Counsel of the Department of Health, Education and Welfare of the United States, addressed the court as follows:
May it please the court:
My statement in support of the Attorney General's motion is from a perspective narrower and somewhat more personal than those which you have just heard. Along with some two dozen other young lawyers, more or less, I was privileged to have served Chief Justice Wilkins as a law clerk.
As well as an employer, I believe that we all regarded the Chief Justice as a friend and as a tutor.
He took seriously the task of educating his clerks. He was trying to teach us something about legal craftsmanship and something more about the capacity of the legal process to be rational, fair and even-handed.
As for craftsmanship, his simple rule was that there was no simple way.
The Chief Justice inevitably required a detailed briefing memorandum laying out the arguments for and against each party's position on each of the issues, with an analysis of the supporting authorities, and pointing out any additional issues which should be considered by the court.
He was seldom satisfied with his clerks' initial work product. On the more complex cases, he would require additional memoranda and conferences, painstakingly explaining to his inexperienced associate why additional work was needed. Only then did the process of final drafting, in longhand, of his opinions begin.
At that point, the editing and review process would start. Again, this work was required to be laborious and precise.
During this entire process, the Chief Justice took the time to explain to his clerks why changes were needed, why arguments seemed valid or spurious, as the case might be, and how particular counsel might have improved his case.
Typical of the experience of his law clerks, I learned more about legal craftsmanship in that one year with the Chief Justice than in any comparable period before or after that time.
But our larger lessons were learned by example, not instruction. By observation, we learned that impartiality in the judicial system is not myth; that rationality is at least one of the system's operating hypotheses; and that fairness is indeed an objective both sought after and most often achieved.
Justice Cutter, speaking for the court at the request of Chief Justice Tauro, responded as follows:
Mr. Chief Justice and brethren, Mr. Attorney General, Mr. Solicitor General, members of the Bar, and Guests:
The Justices of this court are entrusted, during their tenure, with a continuing institution, now nearly three hundred years old. Their obligation is not only to decide justly the controversies of their time but to pass the institution to their successors, strengthened by their efforts. Chief Justice Wilkins abundantly met this obligation.
He came to the court as an associate justice during World War II. After the end of hostilities, his industry did much to keep the court abreast of its rapidly expanding case load. Two chief justices successively assigned to him a great variety of important, difficult cases and, even before he himself became Chief Justice, he had written for the court in almost every field of the law.
As Chief Justice from 1956 to 1970, he naturally was the author of many of the most significant opinions. In a period of change, he guided the court with perception and restraint, properly recognizing new legal concepts without disregarding the virtues of certainty and stability. In 1124 opinions, he spoke for the court. He wrote most of the forty-eight advisory opinions rendered while he was Chief Justice. His opinions are clear, unusually compact, thorough, precise. He had a unique gift of incisive and striking expression. 1
To his own writing, and to his helpful analysis of opinions by others, he brought a broad knowledge of the authorities. He had an instinct, supported by experience, for identifying unsound or careless statements of the law. The whole court derived benefit from his insistence that any opinion in which he joined be worthy, in substance and in form, of this tribunal. His desire for perfection and his exacting standards sometimes had costs measured in the length and vigor of the discussion. The effort, however, usually led to a better product. He applied to himself the same standards with which he expected others to comply.
While he was Chief Justice, the principal work of the court, its appellate business, was kept current despite a constant increase in the volume and complexity of matters presented for review. This record was maintained, in large measure, because of his active leadership and his own energy in writing some of the court's most exacting opinions. The court did not fall behind in its work even when a vacancy was left unfilled for nearly a year. He was determined that justice in this court should not be delayed. In his later days, despite infirmities often painful, he continued to assume his full share of the case load.
The Attorney General has called attention to the important administrative and procedural changes undertaken or perfected under the leadership of the late Chief Justice. He was particularly pleased that (well in advance of Gideon v. Wainwright, 372 U.S. 355) this court, by rule, had ordered adequate representation of indigent criminal defendants.
1 Particular decisions by the late Chief Justice are referred to in various articles published after his retirement in 1970. See e.g. 55 Mass.L.Q. 93-123; 15 Boston Bar J. No. 6, 12-15.
Few men have come to this court so well equipped for judicial service. He had been a high ranking scholar at the Harvard Law School. Reference already has been made to his many public and charitable responsibilities and to his service as an artillery officer in World War I. In the second war, he had been an unofficial adviser to his great friend Judge Robert P. Patterson, then Under Secretary of War. His varied work at the bar had involved many significant matters. The diverse activities of this complicated, versatile man could only have been carried on by one with inexhaustible energy.
He served this court effectively and with imagination for over a quarter of a century. His leadership added new stature to the court. He, and his associates no longer on this bench, have passed to their successors an institution by them greatly enhanced in reputation and tradition.
We allow the motion that the memorial presented by the Attorney General be spread upon the records of the court.
The court will now adjourn.