297 Mass. 589 (1937)
The Honorable William Cushing Wait, an Associate Justice of this court from December 19, 1923, until December 12, 1934, died at Medford on January 28, 1935. On April 3, 1937, a special sitting of the full court was held at Boston, when there were the following proceedings.
The Attorney General addressed the court as follows:
May it please your Honors: The Bar of the Commonwealth have prepared a memorial to Honorable William Cushing Wait, late a justice of this court. I have the honor in their behalf to present the memorial.
William Cushing Wait: A Memorial.
William Cushing Wait was born in Charlestown, Massachusetts, December 18, 1860. His early education was in the public schools of Medford. He was graduated from Harvard College, A.B. summa cum laude in 1882 and received his A.M. there in 1885. He attended the Harvard Law School from 1882 to 1885 and then received his LL.B. Thence, he practised in Boston until his elevation to the Superior Court. For a time he shared an office with his classmate George Eaton. Then, he became a partner with Samuel J. Elder under the style of Elder & Wait until 1893, when Edmund A. Whitman joined the firm, and the name became Elder, Wait & Whitman. In 1902, he was appointed by Governor Crane an associate justice of the Superior Court. He so remained until his sixty-third birthday, December 18, 1923. On December 19, he was appointed by Governor Cox an associate justice of the Supreme Judicial Court, where he remained until his retirement on December 12, 1934. He died on January 28, 1935.
This is the epitome of the life of a man who served the Commonwealth with kindliness, ability, dignity and force, and in a way that aroused affection for him in those who came in contact with him either in private life or in official position. It behooves us to see what was the background, and what were the experiences, which made him such a man.
In 1638, John Wayte, the first of the family in this Country, born in 1618 as the second son and third child of Samuel Wayte of Weathersfield, Essex County, England, came to New England in the "Susan and Ellen" of London and settled in what later became Malden. He became prominent in Massachusetts. In March, 1647-1648, the Colony allowed him _4/18s "for his writing one booke of the Laws and for finding paper for both bookes" --the MS of the Laws and Liberties of 1648. He was nominated to the magistracy in 1683 and became Speaker of the House of Deputies in 1684. Here is a background of public service and eminence.
In 1782, after the family had lived nearly one hundred and fifty years continuously in Malden, Mr. Justice Wait's great-grandfather removed to Medford. There the family was to dwell for another one hundred and fifty years, with but a single break, when shortly before Wait entered Harvard, his father removed to Chicago. The family call this "their only defection from New England in three hundred years." The son, however, continued to live on in Medford with his grandmother, a bachelor uncle, and three maiden aunts, all of whom remained there throughout their lives, the last survivor of the five dying in 1929 at the age of ninety-four. Wait was happy to carry on the traditions of the preceding six generations of New England yeomen and townspeople. His family relationships were very close and very dear to him. Here is a background of stability and loyalty.
In college, without any help from connection with a prominent preparatory school, and although in modest financial circumstances, he developed a wide acquaintance, and at graduation was made a member of his Class Committee. The many friendships formed at Cambridge were a great contribution to his happiness throughout life. He was a member of Phi Beta Kappa and was president of the Harvard Chapter in 1930-1931.
In his early years out of the law school, he took an active interest in Medford politics. When the town became a city he helped to frame the city charter and was a member of its first board of aldermen. He was for many years one of its sinking fund commissioners, and for more years a member of its school committee. Although a Democrat in a Republican community he exercised much influence, and at his death was unquestionably Medford's most eminent citizen. Many of the poorer people of the town came to think of him as "their judge," and they had no hesitation in bringing their troubles to him freely and frequently. These ex parte unofficial applications must have had their embarrassing aspects, but he was almost always successful in sending his visitor away happier than when he came, and never passed the bounds of official or professional propriety.
He took an active interest in local institutions. He was vice-president of the Lawrence Memorial Hospital of Medford, and for over thirty years was secretary of the Trustees of the Unitarian Ministerial Fund for the First Parish in the Town of Medford. He was one of the organizers of the Medford Historical Society, the publications of which contain penetrating researches which he had made into early local history.
On January 1, 1889, he married Edith Foote Wright, a granddaughter of Elizur Wright, eminent as one of the founders of sound life insurance in Massachusetts. This brought together two equally long lines of New England extraction. Their forty-five years of married life brought him his greatest happiness. His son Richard brought him pleasure by refusing to take paternal advice not to follow the law -- advice given out of abundant caution and, we suspect, with the hope that it would not prevail.
Although he had suffered from infantile paralysis while a child and was left noticeably lame, he was quite as active physically as most men who had no such handicap. Rowing, mountain climbing, and golf were his chosen summer time diversions. Before motor cars became prevalent he had been very fond, and not a little proud, of his carriage horses. He never was able quite to forgive the automobile for pushing the horse from the highways.
He was an omniverous reader. He loved music and rarely failed to spend some time each day at the piano, but was not an accomplished performer. He took little or no interest in the theatre. Save in that particular there was little limit to his interests. He was a member of the American Academy of Arts and Sciences and of the American Law Institute. He was a devoted member of the Curtis Club and was a constant attendant at its monthly meetings.
After seventeen years of practice, with the probability of large success in an association with partners with whom he was happy, he did not hesitate to accept elevation to the Superior Court bench when it was offered to him in 1902; for a judgeship had been his ambition since he first began to study law. He began his judicial career from the scholar's standpoint, but soon found that he derived his greatest satisfaction in the practical administration of justice. He never regretted giving up the opportunity for greater financial returns afforded by practice at the bar.
His zest for administration brought his appointment in 1909 to the "Commission to Investigate the Causes of Delay in the Administration of Justice in Civil Actions." On this commission, and later as the justice in charge of the lists in Suffolk County, he did much to expedite the work of the court.
His twenty-one years on the Superior Court is what bulks largest in our memories of him. He never let the dignity of the bench interfere with good fellowship with the bar, and he never permitted that fellowship to impair that dignity. His ready appreciation of ability and industry in advocates who came before him was an inspiration to develop those qualities. The great pleasure brought to the bar by his elevation to the Supreme Judicial Court on the death of Mr. Justice Jenney was dimmed by a thought of regret at the loss of so able and so acceptable a judge to the Superior Court. The cloisters of the upper court necessarily reduce the opportunities for companionship between bench and bar offered by practice in the trial court.
As a justice of the Superior Court he enjoyed the daily contacts with human affairs. He had the respect of litigants and of jurymen. He prized the tokens of friendship which came to him from outgoing panels. His charges to juries were lively and understandable to them. He was a good expounder of the theory of the law, and applied it to the realities of everyday matters in terms of common understanding.
Yet it would have been a misfortune if he had not been elevated to the Supreme Judicial Court; for he was eminently fitted for that work, and was of the tradition that recognizes membership of that court as the desirable climax of a lawyer's career. It was his ambition to reach that culminating place of service to the Commonwealth. Having reached it, he filled the position to the approval of all.
We are closing the record of a serviceable, happy, and successful life. It is that of a man who had breadth of tastes, firmness and liberality of opinion, great tolerance, and a friendliness and geniality which appealed to men in all walks of life. It is the record of an eminent judge and of a great gentleman, of whom the Commonwealth is justly proud.
On behalf of the bar of this Commonwealth, I respectfully request that this memorial be embodied in the records of this court.
Professor Joseph H. Beale addressed the court as follows:
In September of 1878, a group of unhappy, homesick young freshmen met around a table in Memorial Hall. One of them was William Cushing Wait, who came, as most of the rest of us did, from a small school to Harvard, without acquaintances, hopeful, ambitious, but socially scared.
The acquaintance, begun around the dinner table, grew into a warm friendship, for Wait had the quality of attaching his acquaintances to himself, -- a thoroughbred humanity which reached out to find congenial friends.
He had other qualities, we found as time went by, -- faithfulness, industry, ambition, all of the very best of the New England tradition. He had recently become lame by disease, and he found, in the director of physical education of the University, a man who became interested in his lameness and gave him exercises in the gymnasium for it. And Wait most faithfully followed these exercises day after day, week after week, year after year, until he finally got himself into a condition where his lameness was hardly noticeable. That quality of sticking to a thing, of accomplishing what he had undertaken, drew us to him.
Wait was not particularly well fitted for college, for he did not decide to go to college until late in his high school course. But very soon he made up for his previous weakness of education by his industrious, interested work. He was one of the hardest workers in the class and yet not by any means the typical grind, for he had time for friendship, he had time for amusement, he had plenty of time to give to his friends. But he made himself one of the highest scholars in a class which boasted as its leader Professor Kittredge.
These qualities that he had shown throughout his college career he showed throughout his life and he made himself most helpful to all his friends, to all his clients, and finally to the whole Commonwealth. It was a character quite passive, not tending to show; and yet it drew to him his friends so thoroughly that the ties then formed, even after fifty years, were as warm, as strong, as affectionate, as in the days of college. He made good the hopes that we had formed for him. He made good in every way, not merely intellectually but in every other good way. And we followed his career with interest and our love for him remained and still remains.
William Cushing Wait was not, perhaps, one of the greatest men of his time. I will say that I think he was one of the best combinations of goodness and affection, of the Puritan virtues, of the interests of a good citizen, that we are likely to see again. He was a man, take him for all in all, I shall not look upon his like again.
Herbert Parker, Esquire, addressed the court as follows:
Honored memories and just praise of his countrymen attend the conclusion of the life accomplishments of the late Honorable Mr. Justice William Cushing Wait.
Of his profound and wise learning, of his exact knowledge of the written law, and of its philosophies, and of his faculties for its true interpretation and exposition, for the guidance and control of all men within the field of its jurisdiction, the recorded adjudications of this court of final appeal, afford abundant and everlasting evidence, preserved and safeguarded in the charge and care of the Commonwealth.
Yet the enunciations of these judgments must first be manifest in the voice of the magistrate who pronounces them, from his place on the bench of his authority, and in the presence of the populace, and of litigants, awaiting the open determination of their own controversies.
In such circumstances and environment, the presiding justice becomes and is himself the living articulate law. Yet no page of the authentic printed records of a judicial life can reproduce or preserve the vital essence of the judgments by the presence of the judge himself, nor can printed or written record disclose or preserve the actual living part a judge must have in the manifestation of the authority of the animate law.
It is then the grateful duty of the members of the bar, who, through their own service, have known him best, to tell others, less fortunate than we have been, of his very presence, of his demeanor, and of the impressive power of his spoken word. For so only may he be known through the interminable generations of our people, and of their lineage, that willing obedience to the written laws is always in some constant degree dependent upon and attributable to the obvious character and conscience of its ministers, and which so lend both respect and authority to their oral and written decrees.
From these aspects of Judge Wait's service, both upon the bench of the great trial court of the Commonwealth, and in the phrase and import of his written opinions crystalizing and proclaiming the final judgments of this court in banc, he may be revealed to the later ages to whom he was not known in life.
In every sphere of his judicial administrations, he displayed the instinctive and inherent qualities of distinct and distinctive judicial competency.
In his determination of the true lines along which his inquiry must proceed, he exhibited an intent and at times seemingly anxious concentration, but there was never an instant of confusion. He never wasted a moment in examination and elimination of a false or irrelevant issue. His first care was to determnine the true, and all the essential predicates of the case before him, before he proceeded to their elucidation upon issues of fact, or upon applications of the decisive principles of law. He expected and required counsel to fully and intelligibly set out the case that was in their charge, but no meritorious feature of any case escaped his consideration, or evaded his inquiry, even if unwittingly disregarded or overlooked by counsel. His viewpoints and his every action were transparently, and though without ostentation, conspicuously candid, frank and insistently sincere, adding much to the absolute and invariable confidence and respect immediately attending his every ruling. He strove to make all litigants themselves realize that the reason for a judgment plainly justified the exercise of its authority, and justly commanded obedience.
He sedulously observed, in his administration, the humanities and sympathies of the law. Throughout the long years of his service, of course, he had experienced the tedious monotony in the successive hearings, and determinations of causes too often of little real moment, or of any vivid interest, either in themselves, or through their dull presentation, but he never forgot that every man has a right to his day in court, and this right was always patiently and sympathetically accorded to him.
The determination of the truth and its just determination by the court, presented to him in every case, a new and original issue, entitled to the unflagging, active, and intensive attention of the court. He evinced an evident gratification in his opportunity to accomplish speedy but always deliberate justice. Under his determinations and administrations of the law, there was no litigant, nor defendant, on the criminal side of the court, who believed, or would ever assert, that he had not had a fair trial before this most manifestly fair minded and just judge.
There was never in the history of our judiciary a magistrate who, in the discharge of his duty, inspired more widely, among the people of all stations or conditions of life, an unfaltering confidence in the justice of the administrations of the law in the high courts of our State, and this was very largely because he was himself so truly a servant of the law, and of its ideals. He was, in truth, the personification of the just and benign, but, if need be, none the less stern, magistrate.
We do not, in this memorial, review or make analysis of the very many decisions rendered and recorded by him during more than a decade of his service on the Supreme Judicial Court. These evidences of his industry, and his learning, are accessible to all the world and are daily subject of examination by the court, and the bar, in this and all other States of the Union. No one of his opinions has anywhere been disapproved, but stands in ipsissimis verbis as it left his hands.
Of Judge Waits studies, and of his education, and of the sources of his mental equipment, when he entered upon his judicial service, which became the crown and the glory of his accomplished, public spirited, friendly, and most helpful life, we may here make only brief review.
First and always, he was a devoted and assiduous scholar, in instinct and in habit, and from a veritable love of learning, and of its joys in the wide visions of its enlightenment, in which he bade all others to have share with him.
He graduated, with highest academic honors at Harvard, in 1882, and in 1885, his master's degree, also at Harvard, was conferred upon him, almost as in inevitable course. He took his law degree in the same year, and at Harvard. In 1890, with his friend, that very eminent and widely known lawyer, the Honorable Samuel J. Elder, and Edmund A. Whitman, there was organized the famous firm of Elder, Wait and Whitman, honored in thought and memory of now near three generations of lawyers and laymen. He was appointed an Associate Justice of our Superior Court in 1903, and held honored and eminent place on that bench until his elevation, in December 1923, with the highest public approval, to the bench of this honorable court of last and final appeal; and, retiring from these judicial labors, by reason of disabling ill health, and after brief respite from his beneficent work, he died on the twenty-eighth day of January, 1935.
He was a long and always well loved citizen of Medford. His civic service was constant and most generous, devoted and of happiest usefulness. He became a well instructed member of the board of aldermen, and there strove mightily against invading "beasts at Ephesus." He was a highly useful member of the school committee during twenty-five years of service, and many later statesmen may attribute many of their virtues, and perhaps most of their deserved success, to his kindly ministrations and advice. For twenty-eight years he safeguarded the city's inviolate sinking fund. He served willingly, faithfully, and most instructively, as a member of the Commonwealth's commission to study the still unsolved problem of the "law's delay," to which, indeed, he never contributed. He was a prominent member of that honorable company of distinguished and selected scholars known the country over as the Phi Beta Kappa. He was an associate and fellow of the American Academy of Arts and Sciences, and member of the Academy of Political Science, and of the American Law Institute. He was active and welcome member at the house of the American Law Institute. He was a member of the Twentieth Century Club, of Boston's ancient and modern fame. He was also member of the Reform Club of New York, and, to the end that his idle moments, if there were any, might not be without employment, he made frequent, and regular contributions to the columns of the American and English Encyclopedia of Law.
He lived in the gladsome light of jurisprudence, which radiated from the doors of his court rooms, and though a most becoming, dignified and gracious gravity of demeanor attended him on the bench, it was never accompanied by any repellent severity of manner or expression.
He held to the maxims of the law, with their presumptions of innocence and of good faith in the conduct of men, and before him, witnesses really desired, as they were inspired, to tell the truth.
His experiences incident to many official administrative and executive duties gave him opportunity to test the real value of testimony offered under the distracting pressure of self interest, or of falsehood, and such tests he made applicable to the deductions to be drawn from the printed records which are the predicates with which the justices of the law courts have to deal.
He was in himself both minister and disciple of the law, and one of its most persuasive as well as most commanding advocates.
Edmund A. Whitman, Esquire, addressed the court as follows:
I first met Justice Wait while we were undergraduates of Harvard College, but that acquaintance did not ripen into friendship until we became members of the Pow Wow, a club of students in the Harvard Law School meeting for the argument of moot cases.
On his graduation from the law school in 1885 he entered the office of the late Nathan Matthews in Boston. At the end of a year he, with a classmate, rented an office at 23 Court Street, recently vacated by Mr. John H. Hardy on his appointment to the bench of the Municipal Court of the City of Boston. Judge Hardy had been the senior member of the firm of Hardy, Elder and Proctor. Mr. Proctor also retired at this time and the neighborly association with the late Samuel J. Elder was fraught with fruitful consequences both to Judge Wait and to the speaker, who in 1888 took the desk released by the classmate. During these years we both wrote articles for the American and English Encyclopedia of Law, thus helping out a slowly growing practice.
Early in 1890 Mr. Elder invited the judge to a partnership, followed in 1893 by a similar invitation to the speaker. The partnership thus formed continued until the appointment in 1902 to the bench of the Superior Court. Thus for a period of fourteen years the judge and the speaker were in close and friendly relations, not only as office companions and co-workers but quite generally at the luncheon table. The seclusion that doth hedge a judge ended this companionship, but the friendship never.
Justice Wait had a keen mind. He was graduated as the tenth in a class of one hundred and eighty-nine, receiving his degree summa cum laude, with "an oration," this distinction being awarded for his work in history.
He was a resident of Medford and wrote frequent editorial articles for the local newspaper. He early merited, and received, the confidence of his fellow citizens. He became what was known in those days as a Cleveland Democrat and served steadily on the town and city committees of the party. At three elections he was a defeated candidate for the State legislature, although he was told "he could have anything he wanted if he were a Republican." He was a member of the commission that drafted the charter of the city of Medford, was elected in 1893 to the first board of aldermen and drafted the city ordinances. He was active in support of "no license" under local option and in the successful enforcement of the liquor laws.
He was elected in 1895 to the Medford school committee and served in that capacity for twenty-five years, and in the following year he was appointed a member of the sinking fund commission and served there for twenty-eight years. He served the Medford Unitarian Church as a trustee of its ministerial fund and for thirty years acted as secretary of the board.
His mind early turned toward a Judicial career. In those confidential talks with classmates in the last weeks of the senior year, he expressed his ambition to be a judge. Later, his partners had some difficulty in persuading him not to seek an appointment to the bench of the Municipal Court, but in 1902 Governor Crane appointed him to a vacancy in the Superior Court on the recommendation of his senior partner and the then Attorney General, the late Hosea M. Knowlton. Of his work as a judge and jurist I leave others to speak. In 1907 he wrote for his class report on the twenty-fifth anniversary of his graduation from college:
Since appointed justice of the Superior Court June 4, 1902, I have attended to my duty and my history is blank beyond that. To be heard of publicly, a judge must be a very able one or a mighty poor one. I know I am not the first and I hope I am not the second.
I am sure that my brethren who speak with me, and the bar generally, will not agree with the modesty thus expressed. His opinions which averaged fifty per year speak to the contrary.
His interests in life were many and varied. He was greatly interested in music and was no mean musician himself. He was a devoted member of the Harvard Musical Association, and in the Boston season of the Metropolitan Opera Company he, with his wife, was wont to repair to a Boston hotel so as to enjoy the performances. He enjoyed the out of doors. For years his vacations were spent in Cape Breton island with the sports afforded by the Bras d'Or lakes and later on the most northern shore of that island at Ingonish. Despite a lameness, the cause of which I never knew, he engaged in mountain climbing and spent a summer in the mountain fastnesses of the Sierra Mountains of California at the base of Mt. Whitney as a guest of the Sierra Club.
His scholarly achievements as a judge brought him an election as president of the Alpha chapter of the Phi Beta Kappa Society of his Alma Mater, an honor that he deeply appreciated. He was a fellow of the American Academy of Arts and Sciences and served as a member of its council and was generally present at the monthly meetings. His membership in other societies, both scientific and legal, which are listed in Who's Who in America indicate the wide range of his interests.
While he reported to his college class on the occasion of its fiftieth reunion that "work has been heavy" - alas! -- too heavy -- he had found time to serve on a commission on the laws' delays.
He ful1y merited the commendation given by President Eliot to Solomon Lincoln, "He was a useful citizen." No praise can be higher.
Robert G. Dodge, Esquire, addressed the court as follows:
As I look over the list of sixteen former justices of this court, beginning with Chief Justice Field, who have successively died since I came to the bar forty years ago, I am more than ever conscious of the lasting impression made by them upon my mind. The personality of each stands out vividly in my recollection. Each left behind him a record of diligent, effective and honorable work in the public service. Each made his distinct contribution to the maintenance of the high reputation which this court has always enjoyed, not only in the Commonwealth, but throughout the land.
The last in the now lengthy list is Judge Wait. I am sure that the bar will agree with me if I say of him that he not only earned, in common with all the others, the high respect of the lawyers of the State, but that to an unusual degree he won their affectionate regard.
I well recall that day in 1902 when he began his long judicial career. I saw him, a young man of forty-one, seated upon the bench in one of the jury sessions in this courthouse, almost concealed by the basket of flowers sent him by his Harvard Class of 1882, the members of which took a just pride in his advancement. As an undergraduate he had been one of the leaders of the class in point of scholarship and as the years went on became one of its most distinguished members, constantly growing in popularity and esteem.
Shortly after his appointment I tried some jury cases before him in Salem, and I well remember the words of high commendation then spoken of him by one of the veterans of the Essex bar who had been constantly engaged in his court.
From the beginning Judge Wait made an admirable trial judge. His agreeable and friendly manner, his kindness toward counsel, and the promptness and fairness of his rulings made it a pleasure to try before him. Scholarly habits were in him combined with a knowledge of men and things. He knew how to talk to juries, and his charges were clear and well expressed. His sense of humor never failed him, but did not impair a proper dignity. He was altogether an admirable nisi prius judge and his work as such, which occupied two thirds of his career upon the bench, laid a firm foundation for his judicial reputation.
His promotion to this court was welcomed by the bar. It was in no sense a surprise as his fitness for appellate work seemed obvious and he was in 1923 the natural choice for the position. All rejoiced in his advancement. And during the years of his service here the high regard of the lawyers of Massachusetts which he had won in the trial court suffered no diminution. His opinions, generally brief, always seemed to me to be clear and well expressed. I am not competent to speak of them in detail, but I think it is generally recognized that his opinion in Commonwealth v. Rowe, dealing with the effect of the waiver of a jury in a criminal case, was a masterpiece of judicial authorship.
I have spoken of the affectionate regard in which he was held by the bar. Judge Wait made friends wherever he went. This was partly at least because he liked people; his native quality of sociability and friendliness drew others to him. With a genial and attractive personality he was a charming companion. In the small The Law Club of which so many of his predecessors for generations past have been members, as in the larger Curtis Club, his presence was always very welcome, and when his final protracted illness kept him from further attendance he was greatly missed.
As the memorial states, Judge Wait's activities were not confined to professional work. He had many outside interests. He was a good citizen of his community. As president in 1930 of the Harvard Chapter of Phi Beta Kappa, he took his place in a succession of very distinguished men, among whom, a century before, was Chief Justice Shaw.
One cannot but feel that his life was an unusually happy one. From a remark he once made to me I feel sure that in his appointment to this court he attained the summit of his ambition. He never lost his keen interest in the judicial work which occupied the substantial part of his mature life. He enjoyed his association with lawyers and must have appreciated, to some extent at least, the affection which they felt for him. All this brought to him, I am sure, a large measure of the satisfaction which, after all, must be the best reward of a really successful life.
Professor Samuel Williston addressed the court as follows:
I also was of the same class as Mr. Beale and Mr. Justice Wait, entering Harvard in the fall of 1878. I did not have the pleasure of being a dinner companion with the Judge, but I got to know him soon, and very well. Our names both began with W, which brought us into the same section of the class, so that we soon got to know each other. Indeed, Wait soon got to know anybody who was near him. His forthright manner radiated good will, as well as moral uprightness and intellectual integrity.
Although his lameness was much more apparent in those days than it later became, and although his means were evidently somewhat narrow, he had none of the false shame which impairs the happiness and frequently the usefulness of so many young students. He was glad to meet everybody and he took it for granted that everybody was glad to meet him, and, in consequence of that disposition and of what he had to give, everybody was glad to meet him.
Though he spent a great deal of his time in the hard work of scholarship, he became one of the best known and best loved members of the class and was for many years on its class committee, and among the various activities that have been spoken of by others, not one was more carefully looked after than his duties with reference to his class.
It is chiefly as a classmate that I wish to speak of him, because he entered the practice of law before I did, since I did not study law until I was some years out of college. In the few years thereafter, during which I spent most of my time in a Boston office, and in my later sporadic incursions into practical affairs in Boston, I never had the good fortune to meet Judge Wait in a professional capacity, though I twice served as junior to Samuel J. Elder. Therefore that side of Judge Wait's life is to me more or less unknown.
But his opinions in this court necessarily have come to professorial notice and have deserved the commendation which has been given them for their clarity of expression and the direct intellectual honesty, if I may say so, of everything in them. Where a distinction is appropriate it is made, but a pseudo distinction is not made, or a distinction that will not bear examination. Therefore his opinions are read with pleasure in the law school.
In regard to his other activities, he was certainly a versatile man, attracting friends and, I know, getting great happiness not only from his friendships but from all his avocations.
It may he said of him, if not quite literally, yet nearly so, in the familiar words of Terence, that "nothing of human interest was foreign to him." Surely he "warmed both hands before the fire of life," and the fire did not sink until his final illness.
The Chief Justice responded as follows:
Mr. Attorney General and Brethren of the Bar:
The court receive the resolutions adopted by the bar with thorough appreciation of their excellence and respond with deep sensibility to the sentiments so admirably expressed by those who have spoken. The thoughts which arise on such an occasion stir profound emotions. Memories of onerous and inspiring labors shared in the service of the Commonwealth, and ties of intimate friendships grown stronger with every passing year, are intensified by the consciousness that final separation has come.
William Cushing Wait was born of good New England stock. He was not, as might naturally be supposed, any relation to the William Cushing who was Chief Justice of this Court from 1777 to 1789 and then a Justice of the Supreme Court of the United States from its organization in 1789 until his death nearly twenty years later. He was a resident of Medford during all his adult life. He had the advantage and training incident to childhood and youth in the populous district near the capital of the Commonwealth. He graduated with high honors at Harvard in the class of 1882, and from the Harvard law school in 1885. He was admitted to the bar on July 21, 1885. He became associated in 1890 with Samuel J. Elder. Not long afterwards the firm became Elder, Wait & Whitman, which was for many years busy with a large and important practice. During the period of his activity at the bar, he took some interest in politics on the Democratic side, but never became diverted from devotion to the law. His professional success, sound learning, and lofty moral qualities led to his appointment, in 1902, to the bench of the Superior Court. The work of a judge of that great trial court of the Commonwealth calls for a wide knowledge of practical affairs, a clear insight into human nature, a ready command of the underlying principles of the law, a keen sense of justice, and courage of a high order. During twenty-one years of service on that court Judge Wait demonstrated his ability to meet these exacting requirements. He was courteous to counsel, he protected the rights of litigants, he was thoughtful of the comfort of jurors, he showed a sweet and kindly consideration for all men. No one came into his court to speak for justice who was not heard with an open mind and unbiased consideration. He had to a marked degree patience to hear, calmness to deliberate, and firmness to decide. The most important qualities in determining the usefulness of a judge are those which constitute the nature of the man. Integrity and virtue are essential. Intellectual honesty, righteousness of conduct, and inflexible adherence to nobility of purpose are of highest value. Learning, the reasoning power, industry, acumen are but ancillary to the spotless and shining character which is the foundation of capacity for judicial achievement of a high order. His steady growth in excellence, shown in holding sessions of the Superior Court throughout the Commonwealth, led to his appointment, on December 26, 1923, at the age of sixty-three, as a justice of this court in succession to Charles F. Jenney, a position which he held until his resignation on December 12, 1934.
During these eleven years Judge Wait wrote five hundred and fifty-one opinions expressive of the judgment of the court. They are to be found in forty volumes of our Reports, from 247 Mass. to 286 Mass., both inclusive. The first is in Olson's Case, 247 Mass. 570, and the last in Cochrane v. Zahos, 286 Mass. 173. He wrote one dissenting opinion, which was in Black v. Taft, 284 Mass. 81. These opinions are reasonably brief, clear in statement, and not overweighted with citations. He did not, in composing opinions, indulge in prolonged discussion or undertake to settle the law for litigation not plainly foreshadowed of the future. He simply decided the case under consideration by invoking principles of law broad enough to cover its issues. His style of composition was distinctive and finished.
Judge Wait had a wide variety of interests. He had the fine civic spirit, prevalent in this Commonwealth since its early settlement, to which no public duty seemed trifling or obscure. He was a most useful citizen of the municipality in which he lived. He had an important part in drafting the first charter of the city of Medford, and was chosen an alderman at the first city election. He was a member of her school committee for a quarter of a century. For an almost equal length of time he was on the board in charge of her sinking funds. He was faithful to his church and gave generously of his time and advice to its affairs. He was a member of many clubs and societies. He was a fellow of the American Academy of Arts and Sciences, and for a number of years a member of its governing board. He was one of the charter members of the American Law Institute. In 1909, he was appointed one of a commission of three to investigate the causes of delay in the administration of law in civil cases. The painstaking and elaborate report of the commission attests the labor and thought spent in that study. He was deeply interested in the Burroughs Newsboys Foundation and contributed valuable counsel in its management. He prepared articles for the American and English Encyclopedia of Law. He was a lover of the out-of-doors. He used to recount with enthusiasm his experience in camping in the High Sierras. He was artistic in temperament. He derived extreme enjoyment from music. Widely read in literature, biography and history, he was unflagging in keeping abreast of the best that was new and in not losing touch with that which was ancient. He esteemed highly the honor of being elected president of the Harvard chapter of Phi Beta Kappa.
Judge Wait made many friends because he showed himself friendly. For publication in the class book of Harvard '82, he wrote this of himself: "The Law Club, the Curtis Club, and the Examiner Club have contributed to keep me alive and somewhat young by pleasant monthly dinners from October to May. The Old Charlestown Schoolboys, the Henry E. Burroughs Newsboys Foundation, The Bunker Hill Monument Association, The Unitarian Laymen's League, have contributed further. Likewise, the Navy League of the United States. I am one of the trustees of a Ministerial Fund, and its secretary for over thirty years. My summers have been passed at Siasconset on Nantucket, at Petersham, Massachusetts, and at Mount Desert Island, with short trips to England and Wales in 1922 and 1923. Golf and archery have been amusements. Life has been full and pleasant, with much happiness mixed in with work, which, of course, should be happiness in itself . . . . Good health has blessed me, and my wife and son live to comfort me. A fortunate twenty-five years, for which I thank God.".
This portrays a man of unusual versatility and marked charm. He was proud of the judicial traditions of Massachusetts and strove to maintain them untarnished. The length of his service on both courts was thirty-two years. Few judges have been longer upon the bench. In any circumstances, the resignation and death of a justice of this court are of signal importance to the Commonwealth. Though the court remains, a human factor disappears which has vitally affected its deliberations and its judgments.
The estimates of the talents, character and public achievements of Judge Wait presented at the bar have been discriminating and adequate. The motion that the memorial be spread upon the records of the court is granted.
The court will now adjourn.