174 Mass. 591 (1899)
The Honorable Walbridge A. Field, a justice of this court from the twenty-first day of February, 1881, and Chief Justice from the fourth day of September, 1890, died at his residence in Boston on the fifteenth day of July, 1899. A meeting of the members of the bar of the Commonwealth was held in Boston on the twenty-fifth day of the following November, 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 am charged by my associates with a solemn, yet grateful, duty. Walbridge Abner Field, a justice of this court for eighteen years, and for nine years its chief, died at his home in Boston on the 15th day of July last. The bar of the Commonwealth have embodied in formal resolutions an expression of their esteem for him, and their respect for his memory. I am commissioned to present those resolutions to the court, and to request that they be entered on record, to the end that those who come after us may know something of the regard we had for our departed chief.
I cannot expect to add to or improve upon the resolutions which I have the honor to present to the court; but I should be unjust to my sense of gratitude if I did not avail myself of this opportunity to pay my own tribute to the memory of one to whom in common with my associates I feel I owe so much. Chief Justice Field has been a prominent figure upon this bench for nearly a generation. The period of his service comprises the most important part of the professional life of those who are now in active practice. I intend no disparagement of those who shall take up his work in saying that to this generation of lawyers, to whom his gracious presence has been so long familiar, the unique place he occupied in our affections will never again be quite filled. In recent years my official relations with him have necessarily been of so intimate a character that whether I speak of him with full knowledge of his worth or not, I know, at least, that I speak from a full heart.
The life story of Chief Justice Field makes it plain that the high station he attained was the result of no accident. Every step seemed to lead directly towards the goal he reached. As a boy, even, he displayed that fondness for literary studies and that capacity for literary work which, next to health, at least, are the first essentials of success in our difficult profession. At college he was distinguished for his scholarship. But two other men, it is said, ever equalled the mark he attained; and one of those was Rufus Choate.
He graduated from college in 1855, and was admitted to the bar in Boston in 1860, being then twenty-seven years of age. He was fortunate in having been privileged to pursue his studies in an office of high rank and established reputation, where he remained after his admission, becoming a member of the firm; and (except when called away in the performance of public duties) continued his connection with the firm until be was elevated to the bench.
Once only, and for a brief time, he turned aside from the law. But his career in politics, though brief, was characteristic and creditable. In 1876 he was selected to represent his party in a close district as a candidate for Congress. He was declared elected. But his seat was contested; and after a memorable contest he was unseated, only to stand again as a candidate, and to vindicate his right to the seat by a second election, which could not be questioned.
During this contest he was offered by the governor a position upon the bench; but with characteristic devotion to what he deemed to be his duty to his supporters, he declined the offer. If he had yielded to what must have been to him a strong temptation, especially as his political future seemed at the time almost hopeless, we should have had five years more of his services on this bench, but we should not have had a most convincing proof of the strength of his manhood and of his devotion to duty.
After one full term in the House of Representatives he resumed the work of his profession, enriched and educated, no doubt, by what he had learned in that greatest of schools of human experience, but glad to return to the career destiny had marked out for him. Again the call to judicial service came to him, and in 1881, at the age of forty-eight, he began that great work upon the bench of the Supreme Judicial Court, for which he was so well fitted by training and natural temperament.
What an ideal judge he was! With what natural dignity, and yet graciousness, he administered the duties of that high and responsible office! Your Honors, who sat by his side, can scarcely appreciate the unbounded confidence the bar felt in his absolute sense of impartial justice and the satisfaction they entertained in his appreciation of their efforts. Even the nervous and timid beginner was soon inspired with confidence by his sympathetic courtesy. He was a good listener. No advocate left his presence without feeling that he had had the fullest opportunity to present his client's cause.
The value of oral arguments is sometimes questioned; and there are those who hold that if the brief be well prepared, it is sufficient. Chief Justice Field had no such views. He believed that no medium of communicating ideas from mind to mind can ever quite take the place of the magnetism of the human voice; and no man who had anything to say that was worth hearing ever failed to find in Chief Justice Field an attentive, a responsive, and a critical listener. One peculiarity of his is worth noting. Many a lawyer I have known to come away from argument feeling sure that the Chief Justice was with him, because he had sharply questioned the counsel upon the other side. He had not learned that though the Chief Justice frequently interrupted with questions (one of the most valuable features, in my judgment, of the oral argument), his questions were seldom put for the purpose of confounding the advocate whom he believed to be wrong, but rather to test the truth of what impressed him as the correct view.
A characteristic of the Chief Justice which has always profoundly impressed me I do not find to be referred to specifically in the resolutions of the bar. He never seemed to me to grow old. Though he was nearing the end of the ten years that follow the threescore, I do not recall that he presented in his personal appearance any of the usual indications of advancing years. The latter part of his life was a struggle with persistent disease; but I believe his mind never grew old, and I am sure his heart was young to the day of his death. No nipping frost had chilled the impulses of his youth; no darkness of declining day had obscured the vigor of his mind. To the ripe maturity of manhood he added a freshness of appreciation, a genuineness of sympathy with the activities, mental and material, of human life, a sensitiveness to the newest thought of the world that is the eternal characteristic of youth. It was to me the most lovable trait of his character. At a time of life when many are content to sit by the wayside and see the restless procession of human life go on before them, he was still joining in the march of the ages, keeping step to the drumbeat of the newer civilization.
Far be it from me to deny the veneration that is due to the wisdom of age, or to disparage its dignity, its nobility, its beauty, even. But I have come to learn that all the progress of this human race has been achieved by those in whose hearts the deep wellsprings of youth have not become dry. It is they only to whose clear vision is given to see the coming of the bright morrow that shall outshine the glory even of to-day. It is the divine courage of youth that dares to go forward. In saying this, however, I do not speak of youth as a matter of years, but of temperament. Those whose hearts still beat in unison with the great impulses of humanity in its reaching out for that which is beyond and above are still young, though their locks are tinged with frost and their bodies withered by disease. It was this heart of youth that continued warm in the bosom of our beloved Chief Justice till it ceased to beat forever.
I dwell upon this aspect of his character because herein do I find the key to his success as a judge. That his career was successful in the highest sense of the word cannot be questioned. He was a great judge, not because of a towering intellect that shone conspicuously above his associates, not for the brilliancy or erudition of his opinions, not by reason of special achievement in any branch of the law; but because of the sensitiveness of his mind to the impulses of humanity, and because of his ability to keep in touch, and to keep the law in touch, with the advance of the race. I have heard it said of him by those competent to speak with authority, that his idea of the duty of a judge was not so much to formulate a science, to lay down a set of a priori rules, as to deal with each case by itself, and to ascertain what justice to the parties to it required, without special regard to what might be the effect upon other cases and other parties. I am not sure that this was so; and I am still less sure that it would be a safe general rule of judicial action; but in the sense that thereby the law would be brought in closer touch with the ethical sense of the humanity of to-day, it might well have been true of a judge of the temperament of Chief Justice Field.
It is sometimes said to our reproach that the law is merely a collection of precedents, a science only in the sense that it builds upon the wisdom of the ages. We whose lives are given to its service know that this is not so. It may be said to be the chief duty of the bar to ascertain what has been decided to be the law, and to apply the law so ascertained to the case in hand; although I do not so believe. But the duty of the court, at least, is a higher one. It is in its last analysis to ascertain not merely what the law has been, but as well what it ought to be; and thereby what it shall be. The law is not necessarily a dead letter; it is capable of being a great living force reflecting the progress of humanity, assisting in the attainment of the golden rule as a standard of life. The great judge of to-day is not a man who is versed merely in the lore of the centuries, but one whose sense of equity and justice is attuned to the living humanity of to-day. I can pay no higher tribute to our departed chief than to say that his sympathy with the best impulses of mankind was never warped or dulled. It is for this, above all other things, that his memory will be blessed.
He was sensitive, no man more so, to the good opinion of his fellow men, and especially of the bar. He was solicitous to so perform his work that it should be said of him that he was impartial, just, and progressive. How well the bar remember his quick, restless glance about the court room, seeking for sympathy and approval in his rulings. I believe he felt that he enjoyed the confidence of the bar, and in that thought found his highest joy. His last days were clouded by pain and sickness, but we may well believe his great heart was ever cheered and sustained by the belief that his place in the affections of his associates was secure; that he was appreciated as he knew he deserved by those he served; and that when the last words came to be said they would be those sweetest of all words to the soldier putting off his armor: "Well done, good and faithful servant; enter thou into the joy of thy Lord."
I ask that the resolutions be accepted and made a part of the records of the court.
The Attorney General then presented the following resolutions:
Resolved, That the death of Walbridge Abner Field, lately Chief Justice of the Supreme Judicial Court, has removed from a high place of usefulness, dignity, and honor a faithful public servant who was stricken down in the maturity of his splendid powers.
He was a man of commanding presence. To great natural abilities were joined cultivation, refinement, and wide experience. Appointed to the bench in his forty-eighth year, by his masterly scholarship during his college course, by his services as tutor at Dartmouth College, as Assistant District Attorney and Assistant Attorney General of the United States, and as a member of Congress, he had already won confidence and distinction, so that his original appointment and subsequent promotion, resting upon acknowledged fitness, met the cordial approval of the bar of the Commonwealth.
His instincts and habits were scholarly. His reading was wide and his knowledge deep and thorough. His learning was accurate. Quick of comprehension, he was deliberate in judgment. His mental equipment was mathematical and practical rather than metaphysical and theoretical. He dealt with the concrete rather than the abstract. No subject of human knowledge was too great for his comprehension, no distinction too small to escape his attention. Untiringly diligent, his retentive memory preserved the fruits of a wise industry. His mind was well ordered. It was too well balanced for exaggeration. Open and candid in all his methods, he was quick to detect any subtlety. For him sophistry had no attraction.
He had in a remarkable degree that indispensable attribute of a great judge, common sense, which has been aptly defined by one of his predecessors in his great office as "an instinctive knowledge of the true relation of things." He was just to parties; patient and courteous to counsel. He never lost the respect or confidence of litigants. Mentally impatient of prolixity, it found no physical manifestation. Not punctilious, he yet had an inherited sense of propriety that gave a native dignity to his acts and words. He found his recreation in books. He was undemonstrative but sincere. In his friendships he was warm and constant. His fund of anecdote, information, and experience lent a peculiar charm and grace to his conversation. Lineally descended, in the seventh generation, from Roger Williams, the first teacher of toleration among the Puritans, he was tolerant of the opinions of others. With him discussion was not controversy. In his written opinions, his reasoning is logical, and his style direct and incisive. They are his enduring monuments. His keen sense of humor was ever subordinate to the gravity of the judicial office.
Ample, ready, and well digested learning, common sense, logical power, accuracy of perception, discriminating analysis, skill to apply old principles to new cases, impartiality, charity, patience, moderation, industry, courtesy, integrity, and public spirit have ever characterized our judiciary, but Chief Justice Field had all these qualities with manly modesty, sweetness of temper, pure mindedness, gentleness of heart and beauty of character, in rare and perfect combination. Under his administration the court has lost none of its prestige. He was a good citizen, loving his adopted State and city. In office and in private life he was faithful in all things. In his death the Commonwealth has suffered a great loss, and the bar has lost a Chief Justice of whom it was justly proud.
Resolved, That the Attorney General be desired to present these resolutions to the Supreme Judicial Court with a request that they be entered upon its records as a testimonial of honor and affection, and that the secretary transmit a copy thereof to the family of the deceased Chief Justice with the assurance of the sincere sympathy of the bar.
Chief Justice Holmes responded as follows: Gentlemen of the Bar: It is not easy to speak for the bench upon an event like that for which we meet. We judges are brought together so closely, I sat by the side of the late Chief Justice so long -- it was nearly seventeen years -- that separation has in it something too intimate for speech. Long association makes friendship, as it makes property and belief, a part of our being. When it is wrenched from us, roots are torn and broken that bleed like veins. Nevertheless we must not be silent when we are called to honor the memory of a remarkable man although he was a brother. We must sink the private in the public loss.
Chief Justice Field was remarkable and was remarked from a very early age. His extraordinary reputation in his college was a prophecy of his later career. It may happen that a man is first scholar in his class, or whatever may be the modern equivalent of that now vanished distinction, solely by memory, powers of acquisition, and a certain docility of mind that too readily submits to direction and leadership. It may be, although I doubt it, that the chances are that some one in the field will outrun the favorite in the long race. It sometimes occurs that young men discount their future and exhaust their life in what, after all, is only preparation and not an end. But the presence of one great faculty does not argue the absence of others. The chances are that a man who leads in college will be a leader in after life. The chances are that the powers which carry a man to the front upon the prepared track will be accompanied by what is needed to give him at least an honorable place in the great gallop across the world. The usual happened with Chief Justice Field. He was always an important man, at the bar as well as later on the bench. It is a pleasure to me to remember that the first case which I ever had of my own was tried in the Superior Court before Judge Lord, whom afterwards I succeeded on this bench, and was argued before this court on the other side by Mr. Field. It is a pleasure to remember kind words and pleasant relations at that time. But of course those recollections are more or less swamped in those of a long intercourse here.
His mind was a very peculiar one. In the earlier days of my listening to him in consultation he seemed to me to think aloud, perhaps too much so, and to be unable to pass without mention the side suggestions which pressed in upon him in exuberant abundance. This very abundance made his work much harder to him. It was hard for him to neglect the possibilities of a side alley, however likely it might be to turn out a cul de sac. He wanted to know where it led before he passed it by. If we had eternity ahead this would be right and even necessary. But as life has but a short number of working hours, we have to choose at our peril; we have to act on the presumptions afforded by our present knowledge as to what paths are most likely to lead to desired goals. If we investigate Mohammedanism, or Spiritualism, or whether Bacon wrote Shakespeare, we have so much less time for philosophy, or church, or literature at large. So in deciding a question of law, one has to consider this element of time. One has to try to strike the jugular and let the rest go. I think that the Chief Justice did a vast deal of work which never appeared, in thus satisfying his conscience and in his unwillingness to risk leaving something out. You see the same characteristic in the statements of fact in his judgments. There is an elaborateness of detail about them which illustrates the tendency of his mind. If this exuberance was a fault, it was diminished as time went on. Without abating his care he gradually learned to omit.
Outside the law his fertility of mind made him a most interesting and delightful companion. He talked little about people, and never maliciously, but in the field of general ideas he roamed with freedom. He was discursive, humorous, sceptical by temperament, yet having convictions which gave steadiness to his thought. He had an extraordinary gift of repartee, and I used to delight in giving him opportunities to exercise it at my expense, for his answers were sure to be amusing and they never stung. No man ever had less bitterness in his nature. No man ever had a sweeter temper. I do not know how much it may have cost him to attain it, but it really was enough to bring tears to one's eyes to see how imperturbable he was in his amiability, no matter what grounds he might have for just irritation, no matter how much he might be suffering from fatigue and pain. His alleviating humor and his wit shone not merely in the consultation room, but elsewhere. I never have heard better after-dinner speeches than those which he would turn off with little or no preparation.
I have said that, although of sceptical temperament, he had convictions. The fact led to a curious result in his way of regarding the authority of decided cases. I am not sure how he would have expressed it, or indeed whether the notion was articulate in his mind, but he seemed to me to conceive of the law as ideally, at least, embodying absolute right. If a case appeared to him to run against some general principle which he thought was or ought to be a part of the law, the fact that it was decided seemed to make but little impression on his mind. He did not hesitate to throw doubt upon it or to disregard it. I do not think that he would have been content to regard the law as an empirical product of history, the particular forms of which are venerable mainly because they are -- because in fact these and not something else which would seem to be as good or better if only the world were accustomed to it, are what our part of the world has come out on. Perhaps it was the same point of view that made him more ready than some judges to hold rather a tight rein upon the actual practices of the community. If a contract struck him as aiming at a gambling result, he would not enforce it, however much his refusal might encounter the daily practice of a whole board of brokers. He had his views of policy, and he did not doubt that the law agreed with him.
It was part of the same general habit of mind that he should be free to the point of innovation in applying convenient analogies to new cases. He sometimes seemed to me to go not only beyond but against tradition in his wish to render more perfect justice. He was less interested in the embryology of the law as an object of abstract speculation, or in the logical outcome of precedent, than he was in making sure that every interest should be represented before the court, and in extending useful remedies -- a good fault, if it be a fault at all. He had an accomplished knowledge of the present state of the law, and a good deal of curious and useful information about our local history, for which I have envied him often. I doubt if any lawyer whom I have known, except his honored predecessor, from whom we still learn upon another bench, was his equal in this regard.
The personal characteristics which I have mentioned went no further than to mark a person. They were no more than what every strong man has and must have. They were governed by excellent sense, moderation, and insight. He sometimes was so possessed by an idea, or special aspect of a case, as to be for a time inaccessible to suggestion until the fire had burned itself out; but in a little while, in two or three days if not the same day, he fully grasped and did justice to the other view. As a rule he was very quick and took an idea in a flash.
Men carry their signatures upon their persons, although they may not always be visible at the first glance. If you had looked casually at the Chief Justice you might not have seen more than a strong man like others. But to a more attentive watch there came out a high intellectual radiance that was all his own. I have caught myself over and over again staring with delight upon his profile as I sat beside him, and admiring the fine keenness of his thought-absorbed gaze.
He had the heroic temper. This is the last, the greatest, thing that I can say. I used to notice, even in little matters, that he always looked his own conduct in the face and did not equivocate, apologize, or disguise. I could not notice, because it was too hidden, but I know, that he did his work in the same great way. It is hard to realize or believe what sufferings he went through long before the end. But if he had walked the floor all night in poignant pain, when he appeared in the morning he gave no sign of it unless it may be by silence. He took his work hard, as I have intimated, but he never said so, and he went down fighting, like a brave man as he was.
Gentlemen, for all of us this is a solemn moment. For me it is almost oppressively solemn. It would be serious enough were I only to remember the line of great, gifted, and good men whose place I have been called on to fill. But it is sadly, yes, awfully solemn, when I remember that with our beloved chief vanishes the last of those who were upon the bench when I took my seat, and so realize the swift, monotonous iteration of death. We sometimes wonder at the interest of mankind in platitudes. It is because truths realized are truths rediscovered, and each of us with advancing years realizes in his own experience what he always has admitted but never before has felt. The careless boy admits that life is short, but he feels that a term in college, a summer vacation, a day, is long. We gray-haired men hear in our ears the roar of the cataract and know that we are very near. The cry of personal anguish is almost drowned by the resounding echo of universal fate. It has become easier for us to imagine even the time when the cataract will be still, the race of men will be no more, and the great silence shall be supreme. What then may be the value of our judgments of significance and worth I know not. But I do firmly believe that if those judgments are not, as they may be, themselves the flammantia moenia mundi, the bounds and governance of all being, it is only because they are swallowed up and dissolved in something unimaginable and greater out of which they emerged. Our last word about the unfathomable universe must be in terms of thought. If we believe that anything is, we must believe in that, because we can go no further. We may accept its canons even while we admit that we do not know that we know the truth of truth. Accepting them, we accept our destiny to work, to fight, to die for ideal aims. At the grave of a hero who has done these things we end not with sorrow at the inevitable loss, but with the contagion of his courage; and with a kind of desperate joy we go back to the fight.
The resolutions of the bar will be placed upon the records of the court.
The court will now adjourn.