Associate Justice memorial
26 Mass. 576 (1830)
A Sketch of the Life and Character of the Hon. Isaac Parker, Later chief Justice of this court.
An Address delivered before the Bar of Berkshire, by Lemuel Shaw C. J., September term 1830, at Lenox
Gentlemen of the Bar,
This being the first occasion for the assembling of the full court, in its regular course of law terms, since the lamented decease of its late illustrious chief, before proceeding to the regular discharge of its appropriate duties, it seems alike due to the feelings of the court, of the legal profession, and of the whole community, to pause, and pay a short, but heartfelt tribute of respect, to the memory of so distinguished a jurist and so excellent and amiable a man. Although notices like the present are usually introduced in the course of the customary address to the grand jury, on opening the court, yet the present, occasion cannot be considered unsuitable, when upon the reassembling of those who have long been conversant with the business and practice of this court, the thoughts and feelings of all are necessarily fixed upon the memory of him, who so long, so ably, and so faithfully presided over its deliberations. A temperate indulgence of sympathy for the dead, is not inconsistent with the most faithful and energetic discharge of duty to the living. Nor is a sincere and ardent public expression of attachment, and veneration towards the memory of distinguished public men, without its moral uses. It tends to awaken a just sensibility to merit, to excite and invigorate our moral and intellectual powers, to enkindle a more ardent love of virtue, to inspire us with a just sense of the importance of persevering exertion, of unspotted integrity, of faithful and disinterested devotion to the public service, and thus to animate us with more ennobling views of life, its pursuits and objects. It enhances the value of reputation, "that reputation which follows, not that which is run after;" not the popularity which arises from the venal, the interested or the temporary applause of multitudes, but that reputation which consists in the deliberate and lasting approbation of the wise and the good, and which, next to the smiles of heaven and the consciousness of rectitude, is the best reward of public services. The character and virtues, the just sentiments and useful actions of distinguished men, preserved in the annals, and cherished in the recollections of a grateful people, constitute their richest treasures. They speak to their successors in the language of encouragement, of hope, of confidence. They excite the ardent aspirations of the young, whilst they sustain and invigorate the efforts of those who are devoting the full strength of their mature years to the service of their country. They illustrate in action the beautiful theories of the contemplative lovers of virtue. They not only incite the soul to the love of virtue, and point out the path that leads to her abode, but become the practical leaders and guides to all those who desire to walk therein.
These reflections, I trust, cannot be considered inappropriate, whilst we are contemplating the memory of one, who, from a comparatively humble origin, has arisen to the highest eminence, who has taken his place and ably sustained it, by the side of the distinguished statesmen and jurists of his age, who has filled so large a space in the view of this community, and exerted so powerful an influence on its concerns, who will be remembered and appreciated as long as a pure administration of justice shall be enjoyed and valued, and whose sudden death cast a deep gloom upon the face of our whole community.
Chief Justice PARKER was born in Boston, June l7th, 1768, and received the rudiments of his classical education at the public Latin school in that town. And although be entered Harvard College at the early age of fourteen, he is said to have made great proficiency in the various branches of science and literature, and to have maintained a high rank among his contemporaries, many of whom were themselves distinguished scholars. He took his degree in the year 1786, and having pursued the study of law in his native town, he settled in the town of Castine, in Maine, then constituting a part of this Commonwealth, and entered upon the practice of his profession. His talents and industry soon acquired for him a rank in that profession, and an amount of practice, which are rarely attained until after a long period of patient exertion and laborious study. The several offices of trust and responsibility which he was soon called to fill by executive appointment, and by the suffrages of the people, attested the confidence which was universally placed in his judgment, fidelity, and capacity in the transaction of business.1 He was elected a member of congress for the district in which Castine was situated, at the election which took place in the fall of 1796, and attended his duty in this body, in the sessions of 1797 and 1798, but declined a reëlection in the autumn of 1798, when the Hon. Silas Lee was elected his successor. He was appointed marshal of the District of Maine under the administration of the elder President Adams, which office he held about two or three years, and during that period he removed to Portland, where he continued to reside for several years.
Portland, then the commercial capital of Maine, was the seat of an extensive foreign and domestic commerce, and afforded the largest scope, in that great section of the Commonwealth, for the exercise of forensic talents. From that time he is understood to have taken a high rank, and to have been constantly engaged in the active and laborious duty of a counsellor and advocate, and enjoyed an extensive and lucrative practice, until he was called to the office of judge of this court in 1806. This office he was induced, upon personal considerations, to decline accepting, which were only relinquished in consequence of the urgent solicitations of his friends, upon grounds of high public duty. He was appointed to fill the vacancy occasioned by the death of the Hon. Simeon Strong, who had held the office about five years. As the constitution of this court has undergone great changes, and has ultimately settled down into the system in which we now find it, and as this system, which, in comparison with the ancient one, may be not unaptly designated as the nisi prius system, has been in a considerable degree influenced and modified and brought into its present form, under the administration of him, whose memory and juridical character we are now considering, it may be not inappropriate to illustrate the subject, by alluding briefly to these changes.
Under the provincial government, it is understood that the Superior Court of Judicature consisted of five judges, and such was its organization from the acceptance of the provincial charter to the commencement of the revolutionary war. The same arrangement was adopted under the constitution, until the year 1799. During this period, the court was held for all purposes, in each county, by a full bench, of which three made a quorum, but all were expected to attend. All jury trials were in effect trials at bar, and were conducted in the presence of the full court, and not less than three were competent to preside at a jury trial. The necessary consequence of this practice was, that the members of the court were not always unanimous in their opinions, upon the questions of law which the case presented, and this was the more likely to happen, when they were compelled, by this course of proceeding, to form their opinion amid the hurry of a jury trial, and without the aid of deliberate argument, or reference to authorities. It not unfrequently happened, therefore, that several different members of the court charged the jury, and gave them conflicting and contradictory opinions upon points of law, and in summing up the case often differed still more widely from each other in their views of the credibility and effect of evidence, in its application to the particular case. It followed, as almost a necessary consequence of this course of proceeding, that a verdict must be conclusive. How would it be possible to take exceptions to instructions in point of law, where those instructions were various and perhaps contradictory? Or to object to a verdict for a misdirection, where, if the directions given by one judge were incorrect, their influence may have been counteracted by those of another, which were strictly conformable to law? When so decisive an importance was attributed to the verdict of a jury, and when a jury in effect had the power of controlling the court in matters of law, it is natural to believe that every exertion of the parties and counsel would be directed to the object of obtaining a verdict. It is not difficult to perceive how strong a temptation this must hold out to litigants, eager in the pursuit and defence of their supposed rights, to resort even to unwarrantable means, to influence the jury, and rather to rely on such influence, than on the plain rules and principles of law, for their success. Such a state of things is injurious to the best interests of society. It tends to disparage the administration of justice, to promote what is called "the glorious uncertainty of the law"; to encourage litigation, and even dishonest litigation; and to render social rights insecure, by substituting the irresponsible rule and the hasty opinion of jurors, formed without adequate means and perhaps under somewhat dangerous influences, in the place of established principles of law, sanctioned by the experience of ages, and applied and adapted to the particular case by those who are specially charged with that duty, and who are responsible to the community for the steady and faithful discharge of it.
Connected with this mode of proceeding was another, which, though continued to a somewhat recent period, already begins to seem to us strange and anomalous: I mean reviews. But where there is any thing like an orderly administration of justice, some mode of revising a first decision seems to be necessary. Such is the complicated state of the law and fact in most litigated cases, that on a first examination, it seems difficult, if not impossible, to consider and settle abstruse questions of law with satisfactory deliberation, and therefore the necessity is felt of resorting to some mode of revision and reexamination, after the facts are settled, or at least substantially made known by the parties to each other, by a serious trial. I am aware that by the theory of pleading, every point of controversy, be it of fact or law, is supposed to be distinctly presented on the record, before any trial of either is had. But we know how imperfectly in practice this purpose is accomplished, and how impossible it is to ascertain the real state of the controversy by the pleadings. Some deliberate reëxamination of difficult cases being felt to be necessary, if it could not be obtained in the most convenient form, by an orderly proceeding before the court, it was natural that it should be sought in some other method, however irregular, anomalous, and ill adapted to maintain a steady adherence to settled principles of law. Reviews, therefore, were allowed as a matter of right to the losing party, under certain restrictions, in all cases where one verdict only had been found against him. On such reviews the whole matter of law and fact was tried and determined by the jury, and their verdict was ultimately final. In practice, however, there was some departure from this course, when the controversy turned principally upon matters of law; and when the parties were desirous of having the separate and deliberate opinion of the court upon the law; and that was by waiving the right of review, and bringing the case before the court, by motion, upon an agreed state of facts, or upon exceptions, or perhaps upon a report, though it is believed that it was not common for a judge to report the case. Such a state of things must have been attended with obvious and extreme inconveniences, some of which have been already alluded to. Still the people, relying, apparently upon the maxim, that in many counsellors there is safety, manifested an extreme reluctance to having their causes tried by any other than a full bench. But by the increase of population and business, it became quite impossible for the whole court to travel into each county in Massachusetts and Maine and despatch the public business with reasonable promptness, and in consequence, there was a great accumulation of unfinished business, and great delay in the final disposition of causes. To provide for this exigency, instead of the nisi prius system, by which the jury trial should be conducted under the direction of a single judge, subject to the careful and deliberate revision of the full court, a system apparently so simple, so well adapted to secure a full and patient investigation of the facts, and a deliberate examination and application of the law, the legislature adopted the expedient of enlarging the number of judges to seven, so as to form two quorums, and thus enable the court, with at least three judges, to sit at two places at the same time. An Act to this effect was passed in 1799, and amended in 1800, dividing the Commonwealth into two circuits, an eastern and western, and authorizing the court to be held in each county, except Suffolk, by three judges, but requiring the attendance of the whole seven in Suffolk. It is curious to observe the gradual but sure approaches, which were made to the present system. After constituting two divisions of the court, requiring at least three judges in each, it was provided by the additional act of 1800, that two justices might hold a court in "certain" cases when three were prevented from attending. In the statute of 1803 are found the rudiments of the present marked and well settled distinction, between the law terms and the nisi prius terms.
By that act, the number of judges was again reduced to five, and it provided for one term annually in each county, to be holden by all the justices, but any four to constitute a quorum, and if by reason of disability two were prevented from attending, three might constitute a quorum. It further provided for another term in each county, to be holden by any two or more of the justices, but that any one might hold the court and discharge all the duties, with some exceptions, among which were all criminal proceedings; and it was expressly provided, that all indictments and other criminal proceedings should be continued as of course, unless two or more of the justices were present.
This was followed the very year after, by the statute of 1804, establishing the system as we have since known it in practice.
A slight attention to dates will show how nearly, in point of time, this great and salutary change in the constitution of the court and the mode of conducting business in it, coincided with the appointment of Judge Parker to the bench. The act in question was passed in March 1805. Judge Parker took his seat on the bench in March 1806, and held the nisi prius term in Suffolk in November of that year, under the new law; and sitting alone, presided at one of the most interesting criminal trials which has ever occurred in this Commonwealth. The cause presented many very delicate points in the law of homicide, and was zealously conducted by the most eminent counsel. The parties concerned held high stations in society, and a prominent rank in the opposite political parties, and the prejudices and passions connected with the prosecution were not a little inflamed by the highly excited party politics of the day. Yet such was the dignity, the impartiality, the skill and ability, with which the newly appointed judge, then comparatively a stranger, conducted this trial, that it is believed he gave universal satisfaction, and made himself most favorably known to the old Commonwealth, as a jurist of great promise.
Soon after his appointment he removed to Boston, where he continued to reside for the remainder of his life.
On the death of Chief Justice Sewall, in 1814, he was appointed his successor, to the universal satisfaction of the community. In the convention of 1820, called to revise the constitution of the Commonwealth, and which was rendered conspicuous by the presence of many of our citizens most distinguished by eminent talents, Chief Justice Parker was elected its president, with a good degree of unanimity. The elegant tribute of respect to the venerable President Adams, who declined the honor proposed to him of being its presiding officer, was the production of Judge Parker. In this office, if a long disuse of attendance in deliberative assemblies, and a want of practical familiarity with that highly refined code of rules and orders which constitutes the system of modern parliamentary practice, may in some degree have prevented him from conducting the business of the chair with that ease and rapidity which practice alone can give, yet in dignity, in impartiality, and in a scrupulous regard to the rights of every member, where great interests were in conflict, and strong passions were excited, and great talents struggling for the mastery, it is believed that no presiding officer could have surpassed him, or given more universal satisfaction. And when the forms of proceeding permitted him to take part in the debate, some of the most important questions which came under discussion were examined and illustrated by his sound practical sense, and his sagacious forecast, manifesting his earnest and sincere desire to place the most effectual guards around the great and beneficent institutions of the Commonwealth, with a view, as far as human infirmity will permit, to maintain their integrity and secure their perpetuity.
But the life of a judge, however active, laborious and useful, is filled with little incident. It is a constant round of arduous duty, in which there is little change or variety. Judge Parker continued in the discharge of his official duties to the day preceding that of his sudden and lamented death. He left home on Tuesday, the 20th of July, to attend a special session of the court at Salem, and at the opening of the court on the same day, delivered a charge to the grand jury, characterized by his usual clearness, force, and felicity of expression. Little else of active duty devolved upon the judges during that week, the court having adjourned from day to day, to await the doings of the grand jury. They returned several bills of indictment on Friday morning, on which the prisoners were arraigned, and after arrangements were made for the trials in the ensuing week, the court adjourned, and the Chief Justice returned home.
May I here be permitted to mention, that during this interval of leisure, the Chief Justice, together with a few other gentlemen and myself, made a short but most interesting visit to the venerable Nathan Dane, that most distinguished lawyer and statesman, who has done so much himself to augment the stores of juridical science, and also, by his benefactions, to promote the labors and facilitate the acquisitions of others. At this interview, which naturally led to a comparison of age and professional standing, the Chief Justice stated, not in a boastful spirit, but with apparent feeling of humble gratitude to Heaven for the favor, that, during the twenty-four years that he had held his seat, he had never been prevented by ill health for a single day, from being in the place where his official duty called him, in every part of the Commonwealth. At that time, three days before his death, judging from his apparent vigor, his healthy countenance, his buoyant and happy spirits, which the anxiety attending the near prospect of severe official duty could not repress, no man could more justly indulge in the anticipation of length of days, and a happy and cheerful old age. But "in the midst of life we are in death." Having returned home on Friday, he passed part of Saturday forenoon in the Law Library, took a ride in the afternoon, and passed the evening socially with his friends, in apparently good health and with his accustomed cheerfulness. On awaking early on Sunday morning, the 25th, he spoke for a few moments, but with difficulty, and soon sunk into a state of insensibility, under a severe attack of apoplexy, from which he never revived. He survived only about twenty hours. The universal feeling and expression of sorrow, which spread through the thronged city, at the first news of his severe illness, and the still deeper sentiment of grief which followed the speedy intelligence of its fatal termination, attested how much he was respected, not only as a magistrate and upright judge, but as a man, a townsman, an associate,-- how extensively, how sincerely he was loved. Nor did this sentiment of profound grief pervade every heart, and sadden every countenance, without just cause. There was nothing in the character of Chief Justice Parker which could be regarded with indifference. His intelligence, his affability, his perfect benevolence and kindness of heart, rendered his presence universally welcome. Happy and uniformly cheerful himself, he diffused happiness among all around him. In manners and habits, no man was more entirely free from affectation and pretension of every sort, or more wholly exempt from the slightest tincture of official pride. And yet with the most perfect east and frankness, and even gayety of demeanor, he never for a moment compromised his personal or official dignity. Uniformly actuated by an entire purity, simplicity, and directness of purpose, both in the discharge of his official duties and in his whole intercourse with society, no display of rank or of the externals of office could add to his real dignity, nor could the utmost freedom of manners, flowing from true kindness of heart, and always regulated by a just sense of propriety, impair the true respect which those qualities are so well fitted to inspire.
Judge Parker was thoroughly and truly, and in the purest and best sense of the term, a liberal man. Far from being indifferent to the great questions of interest, which deeply engage the minds and feelings of men, he maintained his honest opinions with a zeal and firmness, which manifested how highly he estimated the value of truth, as it presented itself to his mind, after the fullest and most faithful examination. But the same undeviating attachment to freedom and justice, the same ardent love of pure and honest truth, and the same reliance upon the utmost freedom of inquiry, as the only means of ascertaining truth, which led him to assert his own opinions with frankness, and maintain them with firmness, led him to regard, with the most respectful deference, the honest and sincere opinions of others, how much soever they might differ from his own.
But it is principally in the character of a magistrate and a judge, that it now becomes us to consider the memory and public services of the late Chief Justice. Although not previously much known in this part of the Commonwealth, when he first came to the bench, his reputation was favorably known as a counsellor and advocate of a clear and comprehensive mind, quick perceptions, great sagacity and practical skill, and distinguished for a large measure of plain practical sense. It is said by these who knew him as an advocate, that in his addresses to the jury, he was persuasive and interesting, without oratorical display; that "his reasonings were clear, forcible, and exact; his language chaste, pointed, and select; his fluency uncommon, his action animated; so that in their actual union, they gave a charm to his arguments, which won upon the ears, and captivated the judgment of his audience."
During the long period in which he held a seat in this court, both as an associate and as chief justice, it was his happiness to enjoy, as well as to deserve, the undeviating friendship of his associates, and the confidence of the public. Although, during a considerable portion of that period, the community was unhappily divided into parties mutually hostile to each other, between whom prejudices and passions, exasperated by a long course of opposition and mutual recrimination, were excited to a degree, which not unfrequently degenerated into personal animosity, and mingled with the affairs and controversies of private life, yet in no instance has any serious imputation of partiality in the exercise of his functions as a judge, been made against him.
Although he was thoroughly conversant with the passing events of the times, and the great changes which were going on in society, both at home and abroad, and took a deep interest in whatever tended to increase the happiness, and promote the best interests of society, and though he found some time to devote to the cultivation of elegant literature, and much, gathered from the short intervals of severe labor, to yield to the calls of friendship, and to social and domestic enjoyment, yet the predominant object of his life, the leading motive to all his actions, was to be found in a sincere and entire devotion to the great duties of his office, and an unshaken determination to discharge these with strict fidelity, to the utmost extent of his power. His industry was exemplary and most praiseworthy. In forming his judicial opinions, he proceeded with the utmost caution, patience, and persevering research, availing himself of all the aids of argument, of all the light to be derived from judicial authority, or the reasonings of others, and not unfrequently relying at last, and relying justly, upon the dictates of a mind, quick to discern, and anxious to allow, the claims of justice and natural equity, and at the same time deeply impressed with the importance of steadily maintaining the established rules of law. He labored to place his judicial decisions upon some tenable ground of principle, which would neither violate the rules of positive law, nor yet lose sight of the real justice and merits of the case. It is probable that his early practice led him to be much conversant with the legal acuteness which exhausts itself in finding defects in legal process; in pleas in abatement, special demurrers and technical niceties; which are intended to effect the decision of causes, without regard to their merits. To all such applications of legal acuteness and skill, he had an utter aversion; and it may be truly said of him, as he happily said of Parsons, that "though fraught with all the technical learning of the bar, and accustomed to a strict adherence to rules in his own practice, he yet, like Lord Mansfield, was averse from suffering justice to be entangled in the net of forms, and he therefore exerted all his ingenuity to support, by technical reasoning, the principles of equity and right." If it may be thought by some, that sitting in a court of common law, this ingenuity was occasionally carried too far, and that the rules of law were sometimes apparently overlooked, in too ardent a desire to reach the equity of the particular case, it may still be said with great justice, that "even his failings leaned to virtue's side." The ultimate object of all laws, and of all jurisprudence, is, to do justice between parties; and the judge who, by patient research and persevering investigation, can unravel a complicated case, seek out its governing principles with their just exceptions and qualifications, and, without violating the rules, or weakening the authority of positive law, can apply those principles in a manner consistent with the plain dictates of natural justice, may be considered as having accomplished the most important purpose of his office. In the imperfect state of human laws, and the imperfect means of inquiring into the exact state of human transactions, this is not always practicable, but the desire and the effort to accomplish it, are always laudable. But it is believed that a careful and patient examination of his adjudications, and the reasons on which they rest, will satisfy the most scrupulous, that his natural love of justice was never allowed to come in conflict with his clear conviction of the importance, upon the highest ground of principle and utility, of steadily adhering to the known and fixed rules of law, as the basis and ultimate security of all civil and social rights.
After all, his judicial character must stand upon the published reports of his judicial decisions, which now form so large a portion of our legal learning. These will form an enduring monument to his fame, and constitute a large claim upon the respect and gratitude of posterity. May all those who have had the happiness to participate in his private friendship, or to witness and enjoy the benefit of his public services, duly appreciate the excellence and worth of his private and domestic character, and the virtues and services of his public life. May we all be animated by his example, and strive, to the extent of our powers, to imitate all that was excellent and praiseworthy in his life; and may the sudden death of one so loved in life, so honored and lamented in death, in the midst of his labors, in the maturity of his fame, and in the full strength of his years, impress every mind with the importance of filling up life with usefulness, and by constant benevolence to man, by humble and devout piety towards God, of being at all times prepared for a like instant departure from the labors and cares and anxieties of this transitory life, to the world of rest, of peace and hope beyond the grave.
1 He was several times chosen a representative and senator, and attended his duty as such, in the General Court of Massachusetts.