Opinion
1913.
The Justices of the Supreme Judicial Court have no right to give opinions as to the duties of the executive or the legislative department of the government of the Commonwealth in cases where their opinions are not required to be given by c. 3, art. 2 of the Constitution.
Under c. 3, art. 2 of the Constitution the Governor cannot require the opinions of the Justices of the Supreme Judicial Court in regard to a bill laid before him for his revisal under c. 1, § 1, art. 2 of the Constitution.
IN answer to a letter from the Governor received on June 7, 1913, the Justices of the Supreme Judicial Court on June 10, 1913, returned the answer which is subjoined.
To his Excellency, Eugene N. Foss, Governor of the Commonwealth:
The Justices of the Supreme Judicial Court have received your letter of June 7, 1913, in which you ask their opinion as to the constitutionality of a bill which you say has been passed for engrossment by the Legislature, and is about to be laid before you for your revisal in accordance with the Constitution. We understand that the bill is now actually before you and we proceed to state the broad reasons which require us to decline to answer your question.
This question relates to the duty resting upon the Governor of the Commonwealth under the Constitution, c. 1, § 1, art. 2, to approve or veto bills or resolves of the Legislature. The trust thus reposed is personal. It is vested in the Governor alone. It cannot be delegated. He is not required to confer with the Council. While he may seek information or advice from the Council or from any other source, the final responsibility for approval or disapproval is wholly his.
The constitutional duty of the Justices of the Supreme Judicial Court is set forth in c. 3, art. 2, in these words: "Each branch of the Legislature, as well as the Governor and Council, shall have authority to require the opinions of the Justices . . . upon important questions of law, and upon solemn occasions."
The question presents itself whether these words require the Justices to give their opinion when asked by the Governor alone, without the concurrence of the Council. This is an important question which we feel obliged to determine, because the Justices are forbidden to go beyond the requirement of the Constitution. The Constitution not only limits their duty but bounds their right to express opinions. By travelling outside these bounds injustice might be done to private litigants and to public interests in an attempt by the Justices to give opinions without the benefit of argument as to the law and an opportunity to vindicate their views to those whose rights might be affected. See Opinion of the Justices, 122 Mass. 600. Opinions given under this provision of the Constitution are advisory in their character. They are not conclusive upon the rights of parties and are open to argument in any judicial proceeding regularly brought before the courts. But they presuppose such examination and consideration by the Justices as the limitations of time and other contemporaneous duties permit, and the formation of a deliberate conclusion, and hence are accorded weight by the public and the profession, as indicating what the law is. Green v. Commonwealth, 12 Allen, 155, 164. The Constitution expressly prohibits each of the three departments of government from intermeddling with either of the others. Declaration of Rights, art. 30. This applies as strongly to the judicial department as to either of the others. It acts as an inhibition upon the Justices giving opinions as to the duties of either the executive or legislative department except under the Constitution.
Although either branch of the legislative department of government is given plainly the right to ask an opinion of the Justices, a like form of words is not used in conferring the power upon the executive department of government. "The Governor and Council" is the phrase employed, and not the Governor or Council, or other language indicating a power to be exercised disjunctively. The expression aptly shows a power to be exercised conjointly. The construction of the sentence bears the same indication. "Each branch of the Legislature" (which relates to the legislative department of government and confers a separate right both upon the Senate and upon the House of Representatives acting alone), by the words "as well as," is set over against "the Governor and Council," which relate to the executive department of government, and where the language joins instead of separates the "supreme executive magistrate" and his constitutional advisers. This is confirmed by other articles of the Constitution, where the executive department is described, and the words "Governor and Council" are used. See for example c. 1, § 3, art. 11; Articles of Amendment 12, 13. The words "Governor or Council" do not occur in the Constitution. Nowhere in the Constitution are any duties conferred upon the Council, except such as they are to perform in conjunction with the Governor, either approving or disapproving his acts or joining with him as an executive board.
The circumstances under which the Constitution was framed confirm the view that it was not the intent of its makers to require the Justices to advise the Governor as to his duty of approving or disapproving bills and resolves of the Legislature. The territory of the State of Maine was then included in this Commonwealth. Three of the five Justices then constituting the court either lived in what is now Maine or recently had moved therefrom to places now in this Commonwealth. In any event, the residences of the Justices were and were liable to continue to be widely separated. The performance of their official duties took them to distant parts of the State. In 1780 no means of communication or of transportation more rapid than the horse and sailing vessel were known. The Constitution then as now required the Governor to act upon bills or resolves of the Legislature within five days after presentation to him. Const. Mass. c. 1, § 1, art. 2. It is obvious that then there was only a remote chance that it ever would be physically possible for him to ask the opinion of the Justices within any such time as would enable him to profit by it. The inference is strong that no such thing was thought of or intended. The duties of the Governor and Council acting concurrently or together as an executive board in the performance of which an "important question of law" or a "solemn occasion" might arise, are not usually such as must be performed within so brief a time. Considering the Constitution as a whole, it seems clear that these three words, "Governor and Council," in this connection mean only the executive department as composed of both the Governor and the Council. Although sometimes it has been held in construing statutes or other writings that "or" may be substituted for "and" in order to effectuate a plain purpose, such interpretation is not commonly to be adopted respecting an instrument drafted with the care, exactness and accuracy in the use of language characteristic of our Constitution.
We know of only four instances where the Governor has asked the opinion of the Justices without the concurrent action of the Council. The first was in 1807, ( 3 Mass. 568,) where the question related to elections; the second was in 1853, (11 Cush. 604,) where the question was as to the transfer of a prisoner under capital sentence; the third was in 1912, ( 210 Mass. 609,) where it had to do with the pardoning power; and the fourth ( 211 Mass. 620) touched the constitutionality of a statute. In the first of these instances it appears, from papers on file in the office of the Secretary of the Commonwealth, that the opinion was requested by His Excellency, Governor Strong, for the purpose of determining whether a bill of the Legislature presented to him for executive action was constitutional. The opinion given by the Justices did not discuss the question whether it was within their constitutional power to answer a question from the Governor without the concurrence of the Council, but by their answer without reference to it an inference may arise that they regarded it as their duty. In the next two instances the powers of the Governor, which were the subjects of inquiry, could be exercised by him only by and with the advice and consent of the Council. In the last instance the Justices expressed a doubt as to their duty to answer, and left the point open. In the last two cases where the present Justices have given their opinions upon the questions asked, there was not then time at their disposal to make the necessary investigation upon the point now discussed. We know of only a single occasion where the Council has undertaken without the Governor or the Lieutenant Governor to ask the opinion of the Justices and where for another reason the Justices declined to answer. 211 Mass. 630. In no decision or opinion has there been any discussion of the scope of this clause of the Constitution. Without determining how far any of these isolated instances may be regarded as precedents in the future, it is to be said that there is only one, and that occurring more than a century ago, where the Justices without reservation have given an opinion to the Governor, when requested by him alone without the advice and consent of the Council, concerning a duty which must be performed by the Governor alone. This was done without any explanation of the meaning of this clause of the Constitution.
There is thus the unbroken practice of more than a century of chief executive magistrates in not undertaking to require opinions of the Justices as to legislation awaiting their revisal under the Constitution. This practice, so long continued, is some evidence of what has been the accepted meaning of this clause of the Constitution by those charged with the performance of duty under it. It cannot be presumed that difficult constitutional questions have not confronted successive governors, as to which they well might have asked the opinions of the Justices, if the right had been supposed to exist. Indeed, this is manifest from the volumes of opinions of the Attorneys General of Massachusetts, which are replete with such opinions, and from State papers of Governors. See for example Sts. 1905, pp. 632, 633; 1906, pp. 882, 884.
The Justices have manifested no disposition to analyze nicely or construe narrowly their duty under the Constitution to give opinions to the other departments of government. They always have interpreted broadly the duty imposed, as is necessary in the consideration of a great charter of government which contains only general principles. They have given opinions upon the requisition of the Governor and Council upon a great variety of subjects appertaining to the executive administration of government. But they cannot exceed the limitations of the Constitution. The mischiefs which would follow their failure to hold fast to the monuments established by the Constitution would be far greater than the benefits which might seem to follow from a stretching of its requirements in order to comply with a particular request.
For these reasons the Justices of the Supreme Judicial Court feel constrained respectfully to decline to answer the question.
ARTHUR P. RUGG. JAMES M. MORTON. JOHN W. HAMMOND. WILLIAM CALEB LORING. HENRY K. BRALEY. HENRY N. SHELDON. CHARLES A. De COURCY.
THE HONORABLE CHARLES ALLEN, a Justice of this court from the twenty-third day of January, 1882, until the first day of September, 1898, died at Boston on the thirteenth day of January, 1913. On May 24, 1913, a special sitting of the full court was held, at which there were the following proceedings.
The Attorney General addressed the court as follows:
May it please your Honors: In conformity with the time-honored custom, at the request of the Boston Bar Association it becomes my privilege to offer to the court the memorial recently adopted by the committee of that association upon the death of the Honorable Charles Allen.
It is, indeed, an unique experience to be called upon to speak in eulogy of one of my predecessors in office, whose service began nearly half a century before his death, which has so recently occurred.
The many and varied phases of his long, active and public-spirited life are set forth in detail in the memorial to be presented to the court and there seems little to be added. Inasmuch, however, as he at one time held the same office in which I am now serving, I deem it not inappropriate to call to the attention of the court some of his characteristics and of the incidents of his work during the time he was Attorney General of the Commonwealth. I suppose there are few either upon the bench of any of the courts of this Commonwealth or at the bar who were practising when Mr. Allen was Attorney General. The records of the work which he performed in that office and of its character are necessarily meagre. They are to be found only in the brief formal reports which he made to the Legislature and in the reporter's brief notes of the arguments presented and the authorities cited by him in support of the claims of the Commonwealth in the cases which were presented to the Supreme Judicial Court for final adjudication.
Charles Allen was born in Greenfield on April 17, 1827. He was the son of Sylvester and Harriet Ripley Allen. He was graduated from Harvard College in the class of 1847, and at the time of his death on January 13, last, was the last survivor of that class.
Twenty years after his graduation from college, upon the resignation of the then Attorney General, Chester I. Reed, he was elected to fill the vacancy and continued to hold the office until 1872.
For the six years preceding his election as Attorney General he had been the Reporter of the Supreme Judicial Court. It is to be noted that with his withdrawal from that office the custom, which had long obtained, of entitling the reports of the decisions with the name of the reporter, ceased. His work as Reporter of Decisions had been of a high order. The clearness of diction and the simplicity of his statement of a case had assisted materially in making plain what was that part of the law of this Commonwealth as it was being formulated by the decisions of the Supreme Judicial Court.
But his work in this respect did not cease with his election as Attorney General; it only changed. In the light of the experience of most of his successors, the choice of Mr. Allen to that office seems to have been somewhat unusual. Most of his predecessors were, I judge, and all of his successors have come, from the ranks of the active trial lawyers, and nearly all of his successors were district attorneys in their respective districts at the time of their elections to the office of Attorney General. With that record it might have been expected that the change of environment from the office of the Reporter of Decisions and the somewhat routine work which the Reporter necessarily performs to the active work of the office of Attorney General must have come as a great change. While in many respects the detail work of that office was much less than it is to-day, the records to which I have referred show a vast amount of very important work, most of which, as he points out in his last report as Attorney General, was performed by him alone. For the first two years of his incumbency he had no assistant, and for the remainder of his incumbency only one, Mr. James C. Davis. Although the Commonwealth had not grown to its present extent and there were not the many boards and commissions that have been made necessary by the constantly varying conditions of society as they have developed almost year by year, yet the performance of the duties which he was compelled to undertake must have been most arduous.
During the five years that he held the office of Attorney General the decisions of our Supreme Court are contained in volumes 97 to 109. The reports of the decisions in those twelve volumes show that as Attorney General Mr. Allen prepared briefs for and apparently personally argued almost three hundred criminal cases, an average of sixty cases for each year that he held office. In addition to the criminal cases, he represented the Commonwealth in many important civil actions, both in the courts of this Commonwealth and before the Supreme Court of the United States. The questions presented in at least two thirds of the criminal cases were different in each case from those presented in any other case. The Attorney General was called upon to maintain not only principles of law but forms of complaint prepared by trial justices, forms of indictments and methods of procedure and questions of evidence in the administration of the criminal law, which points had generally arisen long before the management of the case reached him officially, yet he supported, and with a surprising degree of success maintained, the position of the Commonwealth in the very many important questions that were thus presented. The issues ranged all the way from proceedings in a simple assault case to the serious crimes of larceny, burglary and murder. In the presentation of an argument on behalf of the Commonwealth the reporter's notes show that he brought to that work the same habits of industry, the same clearness of thought, the same knowledge of principles of the law and the authorities on which these principles were based that later appeared in more elaborate detail in the opinions which he wrote during the nearly twenty years that he was a justice of this court. The personal characteristics of Judge Allen are fully and well set forth in the memorial to be presented to your honors, and were the same that manifested themselves in his work as reporter of this court nearly a half century ago, and, as I have said, in the brief reports of his presentation of the cases in which he appeared as Attorney General.
I have also examined with special interest the reports which were made to the Legislature during his term as Attorney General. Here, as always during his long life, appear a keen interest in and grasp of the every-day conditions as they arose. He showed the same conscientiousness of thought, keenness of intellect and the same vigor in presenting his views in seeking changes in the statute law of this Commonwealth which his work as Attorney General caused him to consider were necessary for the proper administration of the affairs of this Commonwealth. Among many of the live problems which he called to the attention of the Legislature were included his recommendation that indictments in homicide cases be presented in the degree which the facts in the case showed the person charged to be guilty of, rather than to have the indictment itself brought for murder in the first degree. So, too, he directed attention to what even in that period he described as one cause of "the law's delay," by recommending changes in the statutes so that prisoners held in capital cases might be more speedily brought to the bar. So, too, he recommended changes tending to improve the jury system, and also, that persons charged with the crime of either larceny or embezzlement should not be acquitted upon the facts in the case showing the crime actually committed to have been the one other than was charged. He apparently conducted with great tact the dispute between the officers of the Commonwealth and the Massachusetts Historical Society as to the right of the latter society to retain the Hutchinson papers, so called, which had been delivered to it by a former Secretary of this Commonwealth and eventually secured the return of those papers to the custody of the officers of the Commonwealth.
Examination of these reports shows him in that office to have been possessed of a high degree of personal dignity and fidelity in the performance of the duties and the labors entrusted to him. As Attorney General, it is not too much to say that he must have been an illustrious and stimulating example to his immediate successors and he may well be an ideal and an inspiration to those who will serve in that office in the years to come.
I now have the honor to present the memorial.
The Attorney General then presented the following memorial:
The death of Charles Allen, late Associate Justice of the Supreme Judicial Court, on the thirteenth of January last, terminated a career of rare strength and usefulness.
His life was lived and his work performed wholly within this Commonwealth. Born in Greenfield April seventeenth, 1827, he was graduated from Harvard College in 1847 and was admitted to the bar at Northampton in 1850, being thereafter engaged in general practice in the western counties for eleven years. He became Reporter of Decisions of the Supreme Judicial Court in January, 1861, and remained in that office until April, 1867, when he became Attorney General of the Commonwealth. In this office he served until 1872. Between 1880 and 1882 he was engaged as Chairman of the Commission whose work became the Public Statutes of the Commonwealth.
In 1881 he declined an appointment to the Federal Bench which was tendered him by President Hayes and in the following year was appointed by Governor Long an Associate Justice of the Supreme Judicial Court, in which office he served until his retirement in 1898. He came upon the court when Horace Gray retired and Marcus Morton was appointed to be Chief Justice, and he remained well nigh to the end of the term of Walbridge A. Field.
Ten years of well earned leisure were spent to the full in travel and in studies, literary and theological, which had always deeply interested him, and then came the limiting, serenely borne, years of illness which closed his career. His life covered two thirds of the life of the Commonwealth under the Constitution, and more than two thirds of the life of the Republic.
It is not often given to any man, lawyer or layman, to have served his generation in positions of such responsibility and trust.
His contribution to the literature of the law is to be found in the fourteen volumes of Allen's Reports, in his opinions, some seven hundred in number, scattered through forty volumes of the Reports, and in his work on Telegraph Cases published in 1873. It may almost be said that his "Notes on the Bacon-Shakespeare Question," published after his retirement from the court, in which perhaps for the first time in that discussion a judicial quality dominated, should also be added to the list.
His opinions show clearly the breadth and exactness of his training. He had performed the exacting work of statutory revision. He had served as advocate and adviser in matters of the largest import, as chief law officer of the Commonwealth and as reporter of the decisions of its highest court. He brought to the bench an abundant preparation.
It is not too much to say of those opinions that they are models of brief and clear-cut statement. They impress the reader with the rapidity of their movement. They seem to plunge in medias res, and yet no steps require to be retraced and no foundations to be built after the superstructure has begun. A single opening sentence or paragraph sweeps in the foundation facts, or states the principle of law which will be found underlying the decision. There is never any attempt to minimize the force of such arguments as appear to be against the view the court has reached. The opposite position is always assailed in front, with full recognition of its entire strength. The New England conscience of the writer is clear in every page and his intellectual honesty permits no fallacy, even as a short-cut to a sound conclusion.
In touch with the times in which he lived, and with the needs of a changing community, he adhered conservatively, but not slavishly, to the past, and recognized that changes in the law to be secure must be of slow workmanship.
Sitting at nisi prius his rulings were characterized by that accuracy and promptness which result from years of service as an advocate. Without being a martinet, the trial in hand marched; and the conduct of counsel and parties before him was held in firm restraint. He brooked no altercation and permitted no brow-beating. The trial took on the courtesy and dignity of his own demeanor. When necessary his reprimand was swift and its effect final. He did not hesitate to forward the cause by directing the course it must take, nor shrink from the full responsibility which his rulings involved. His words from the bench were few but they went to the bottom of the thing in hand. Sitting when Bacon v. Ransom was reserved for the consideration of the full court, he anticipated its decision in a single phrase: "I do not doubt, and I have never doubted that the conscience of a legatee might be bound without creating a trust which this court was bound to administer."
Reported in 139 Mass. 117.
His dominant characteristic was conscientiousness. Though swift in the formation of opinions, and firm in holding them, his mind was always open to their revision or reversal. Conforming to precedent he was not blinded by apparent analogies in reaching the truth. The justice of the case was the real precedent. Before him the action lay in its true nature and there was no shuffling. The law itself was not a "wilderness of single instances" but "the last result of human wisdom acting upon human experience for the benefit of the public." Blackstone has said that, "Law is the embodiment of the moral sentiment of the people," and it was by that sentiment that his interpretation of the law was always sought.
His life and the abundance of his service have added another name to the illustrious line of those who have placed the good of the Commonwealth above private gain and have found their reward in work well done.
Honorable John D. Long then addressed the court as follows:
The admirable memorial, written by Mr. Elder and just read by the Attorney General, renders it hardly necessary to say any further general word. Mine must, therefore, be rather a personal one.
I pay my tribute to Mr. Justice Allen with profound respect. When I came to the bar he was in his early, and yet mature, manhood. Indeed maturity of character characterized him from the first, and was, it seems to me, now looking back, an inbred if not an inborn characteristic of his. I recall his fine face and attractive carriage of the head, and his well modulated voice, all of which were touched, but never impaired, by age. I remember him as a practising lawyer, as master in chancery, as chief of the revisers of the statutes of the Commonwealth, as Reporter of Decisions of this Court, as Attorney General, and best, of course, as a Justice of the Supreme Judicial Court — in each position discharging its functions with full and recognized completeness.
To this last position, the highest mark of a Massachusetts lawyer's advance, he rose not by favor, not by good fortune, but by sheer, pure worth and fitness. His appointment to this court was not so much the act of the then Governor as it was the designation of the public sentiment of the bar and the natural sequence in his onward, upward step, just as the most advanced bud on the bush is the next to blossom into the full flower.
Hon. John D. Long.
In that high seat what a model he was of judicial quality, ability, reasonableness and dignity — and may I not remark — of notable and rare modesty. His early country life and his later metropolitan environment adapted him in an all-round way for passing on all the varied questions relating to the interests of the people. His monument is in his judicial opinions in the Massachusetts Reports. They are pronouncements which illumine and enrich our jurisprudence.
Nor are to be forgotten his scholarly tastes and literary culture, of which his elaborate book in defense of Shakespeare's authorship is evidence. A good man, devoutly and liberally religious, a conscientious citizen, an ideal lawyer, a wise judge, what just and beneficent service he rendered! The old Commonwealth will still be safe if such men sit on her judges' bench, making firm the foundations of her security.
Honorable Robert M. Morse then addressed the court as follows:
Almost a generation has passed since Judge Allen retired from the bench, and to many of those now in active practice in our courts his honored name is only a dim tradition. But the older men recall him with pride and affection as a wise and learned counsellor and judge and a charming and delightful companion. Personally I came into longer, closer and more frequent association with him than with any other member of our profession, aside from those who had been my college classmates. My acquaintance and friendship with him began with his appointment as Reporter to the Supreme Judicial Court in January, 1861, the year after my admission to the bar, and continued from that time through his private practice and his service as Attorney General and as judge and for a long time after his resignation from this court. I met him constantly, both professionally and socially. As a member of the Senate in 1867 I introduced the bill which was subsequently enacted providing that on the termination of Allen's reports the reports should thereafter be distinguished as Massachusetts Reports, so that 14 Allen published in 1869 was the last volume bearing the name of the reporter and Charles Allen honorably closes the list begun with Octavius Pickering. Later, in 1880, as a member of the House of Representatives, in conjunction with our former Chief Justice Knowlton, then a member of the Senate, I was instrumental in securing, against much opposition, the law providing for the long-needed revision of the statutes and this led to the appointment of Mr. Allen as chairman of the commission. Under his faithful and able administration the Public Statutes of 1882 were drafted. I had much to do with him as Attorney General, tried many cases before him as judge at nisi prius and appeared frequently before him as a member of the full court.
These personal relations are of no importance except that they furnished me with abundant opportunity to know the man and justify my earnest participation in this tribute of the bar. Judge Allen was an upright, wise and learned judge, dignified and gracious in his bearing but very simple and modest. His lucid opinions reflect his clear and high intellectual qualities and the devoted study which he gave to the problems presented to him for solution. A lawyer often finds himself complaining of an adverse decision of the court and indisposed to accept it with complacency, but no judge I have known had greater success than Judge Allen in convincing the losing counsel that he was wrong. Yet no judge was ever more prompt and positive in his decisions.
The purity of his character, the high ideals which he set always before him, the ease and affability of his intercourse with his fellows, the charm of his conversation, through which there were always flashes of his dry wit, but, above all, his great public service, made a profound impression on his contemporaries and entitle him to a high rank among the honored men who have given distinction to our courts.
Honorable Dana Malone then addressed the court as follows:
Mr. Justice Charles Allen was born in Greenfield and for thirty-five years lived in that town taking an active part in its social and political affairs. He was admitted to the bar in 1850 when he was twenty-three years old, and practised in Greenfield and western Massachusetts against able lawyers for twelve years, when he removed to Boston.
In an interesting letter from him read at the one hundred and fiftieth anniversary of the incorporation of the town, he "lovingly recalled" the period of his residence in Greenfield and especially of the law office in which he was a student and afterwards a junior partner and of which George T. Davis was the "admired and much loved head," and Judge Charles Devens a member, and he wrote, "I can say without reservation that its ethical tone was of the highest and that both by precept and example we youngsters who were in it were taught, while showing all due fidelity and zeal in behalf of clients, not to indulge our feelings so far as to disregard the just rights of those upon the other side. I have always fondly believed, perhaps with excusable partiality, that in those times a better tone prevailed in the practice of law in Franklin County than in some of the other counties in the state; and I rejoice to think that this traditional tone is still cherished and maintained by my friends, the older practitioners of to-day."
The little county of Franklin has an invaluable legacy in the influence of the older generations of distinguished men who have long since left us. Tradition informs us that these lawyers, as well as the younger and less distinguished members of the bar, have always maintained a loyalty and profound respect for the judges of our courts. If I may be pardoned I will call to mind some of these men.
William Coleman of Greenfield was the first member of the Franklin bar. He lost his property in a Virginia land speculation and at thirty-one removed to New York and was the law partner of Aaron Burr, the intimate friend of Alexander Hamilton, and Reporter of Decisions of New York. Incidentally he issued the first number of the New York Evening Post.
Benjamin R. Curtis, a distinguished United States Supreme Court judge, studied law in Greenfield and practised in Northfield for a year.
Franklin has also had three judges of the Supreme Judicial Court of the Commonwealth. Judge Charles Devens, who practised at Northfield and Greenfield and was Senator from Franklin in 1848 and 1849, a distinguished soldier, Attorney General of the United States, and who was twice appointed to the bench of this court; Judge John Wells, a distinguished member of this court who was born in that county, and Mr. Justice Allen.
It has also now two judges of the Superior Court, the Chief Justice and the senior associate justice.
Judge Daniel Wells of Greenfield for thirty years a leader of the bar and with practice in all of the courts of western Massachusetts, was Chief Justice of the Court of Common Pleas for ten years. The Franklin bar also had two associate judges of the Court of Common Pleas, one of whom was Ex-Governor and Judge Emory Washburn, the distinguished author of legal works who practised in Charlemont.
Judge Allen argued his first case in this court the year of his admission to the bar, and for forty-eight years thereafter his name may be constantly found in the reports beginning with 6 Cushing and so on through one hundred and twelve volumes to 172 Massachusetts. First, as an attorney, then in 1861 through fourteen volumes (Allen's Reports) as Reporter of Decisions, and it is an interesting fact, that the Reporter of the first volume of the Massachusetts Reports, Ephraim Williams, was a member of the bar of the same county of Franklin where Judge Allen began his practice; then from 1867 to 1872 as Attorney General, and from 1882 to 1898 as Justice of this court. He saw, of course, in these forty-eight years the marked changes that have taken place in the practice of the law and notably in the manner of arguing cases, from a brief with merely the headings of the points involved and long oral arguments to the elaborate printing of to-day.
In his opinions he was careful to weave in a paragraph that could be used by the Reporter in making headnotes of the cases which he regarded as very important.
His entire life was devoted to the law and he was gifted by nature and by intellectual training to discern and expound with clarity its principles and intricacies.
In his official career from his appointment as Reporter of Decisions in 1861 to his retirement from the bench in 1898 he had the confidence and admiration of the bar and of the people of the Commonwealth.
Judge Allen was always clean-minded and upright and never needed to study canons of professional ethics, but I recall a letter which he wrote some years ago to a nephew, a young lawyer, which contained admirable precepts for the practitioner and which if it were printed would be helpful to all. It was most friendly and affectionate and his shrewd comments upon some young members of the bar and their chances of success, have since been confirmed. His own writing was as clear, accurate and regular as copperplate, and he was particularly urgent that the handwriting of this relative should not be ruined and that he should not neglect the use of the pen.
Starting in the law with industry, ability and faithfulness and with thrifty habits acquired in his youth, there is no wonder he made a professional as well as a financial success in his thirty-two years of practice at the bar. His generosity to his relatives and to various charitable institutions in the town of his birth and to other worthy objects there as well as to the Unitarian Church in which he was deeply interested was marked. But perhaps the most marked characteristics of his entire life were the clearness of his opinions and his painstaking desire to do justice to all. This desire was shown even at the last in the distribution of his large estate, for a lawyer, not only to charity but equitably among all his relatives.
Those of us who knew him and were his friends will remember him with affection. The younger members of the bar well may take his career, as outlined here to-day, as an inspiration and a guide.
Alfred Hemenway, Esquire, then addressed the court as follows:
May it please your Honors: The life of the Harvard Class of 1847 ended with the death of Charles Allen.
When he finished his series of Reports the succeeding volumes by legislative act were to be thenceforth styled Massachusetts Reports, "without the name of the reporter thereto added." So he was the last survivor of his college class, and the last of those whose reports are cited by the name of the reporter.
He was the immediate successor of Gray, whose marvellous learning appears in the pages of his reports, and Gray had been preceded by Metcalf, whom Gray called "the model and despair" of his successors. Allen's reports are rightly ranked with those of his great predecessors.
A student in the Harvard Law School and in the office of Davis and Devens in Greenfield, and for ten years the partner of the brilliant George T. Davis, he early mastered the underlying precepts of the common law. In his youth he learned the mode of thought and habits of life of the people of western Massachusetts.
Later, as Attorney General, he travelled the length and breadth of the Commonwealth and came to know its whole people. In the discharge of the multifarious duties of that important office, he rendered satisfactory service and gained a wide and helpful experience.
As one of the Commissioners to revise the general statutes which resulted in the Public Statutes of 1882, he added greatly to his familiarity with the history and scope of our statute law. The Commissioners of whom he was chairman worked diligently. They were appointed on the thirteenth day of April, 1880, and their printed report with commendable promptness was laid before the Legislature on the thirty-first day of March 1881 — in less than one year from the date of their appointment.
He had a knowledge of business. A skilful accountant, he found no mystery in the art of bookkeeping. Tangled accounts did not baffle him.
By learning and by practical experience with men and affairs he came to the bench fully prepared for his great office. His appointment met the instant approval of the bench and bar. "It is a fine appointment," said Chief Justice Morton when told of his nomination.
For sixteen years with integrity, ability and untiring industry he kept his oath of office, faithfully and impartially performing all the duties incumbent on him. Even now his wise and able nisi prius work is hardly more than a tradition, for the fifteen years that have passed since his retirement from the bench have produced a new generation of lawyers. The remembrance of the judge in the active trial of causes is even more transitory than that of the advocate. The names of both are "writ in water."
With the American and English reports he was familiar. He had a commanding knowledge of our statutory law. Forty volumes of Massachusetts Reports bear witness to his learned, assiduous and masterful work.
His opinions have become part and parcel of the great body of Massachusetts law. They have literary merit. He had the persuasive power of clear and concise statement. His brevity was without obscurity. He avoided ambiguous generalities. He was not a metaphysician. His mind dealt with the concrete rather than the abstract. He was more interested in the present state of the law than in its early conceptions. His opinions are singularly free from dicta. He recognized that like definitions in the Civil Law they were full of danger.
None knew better than he the path of precedent. He trod it so long as it led to substantial justice. If it led elsewhere he retraced his steps and found or made a new way. Authorities were his aid, but reason was his master. He knew the limitations of general rules. He did not forget that the exception was also a rule.
Always faithfully striving to do his best, his opinions have an even excellence which is praiseworthy. He had the rare gift of accuracy in all things.
He believed in the formalities of the law. He observed and required from others an observance of the courtesies of the court room.
He was modest almost to a fault. A conspicuous example of this trait appears in the unobtrusive title, "Notes on the Bacon-Shakespeare Question by Charles Allen," given to a book published after his retirement. It is really a masterly treatment of the whole matter. It is written with judicial care. Its logic makes its conclusion seem axiomatic. In learning and research it ranks with the best opinions of our highest courts. In style it is a model.
To him ostentatious publicity was distasteful, and exaggeration a fault. He resented double dealing and insincerity.
He was fond of travel and had seen his own and many lands.
He was an enthusiastic but not a loquacious fisherman.
He had a wide acquaintance with English literature. Books were his recreation.
Of Governor Russell Professor Norton said, "He died in a fair hour. He escaped old age." Charles Allen died in a fairer hour. He reached old age. He fulfilled the promise of youth.
His was an earnest and successful life. Its high purpose was its crowning glory. He strove so to administer the law that it should be a safeguard and a blessing to the whole people.
Chief Justice Rugg responded as follows:
Brethren of the Bar: Your careful and discriminating memorial and the judicious and appreciative addresses in its support, presenting from different points of view the personal virtues, professional achievements and judicial excellences of Charles Allen, leave little to be added in order to preserve an adequate portrayal of his character.
He has been for many years a strong and vital force in the Commonwealth. He was fortunate in his birth and early training. Of sturdy, conscientious New England parentage, his father was a successful storekeeper and his mother a woman of unusual refinement and intellectual keenness. He was one of a large family of children and was reared in a community where the spirit of friendliness and equality prevailed and where the surpassing natural beauties of mountain and river and valley inspired purity and power and elevation of thought and of aspiration. These surroundings and influences in youth cultivated an understanding of the human side of affairs of inestimable value in the administration of the large interests which came to his hand.
He studied law under Charles Devens among others, with whom he was destined to be associated in judicial work. The eleven years between his admission to the bar and his appointment as Reporter of Decisions were spent in the practice of the law in the Connecticut valley. He cherished to the last a strong attachment to his native town and its neighborhood. That was before the days of much specialization in our profession and a country practice gave experience in every department of the law and a close contact with all sorts of people. It was a period in our country's history when political discussion was fired with moral fervor. The thoughts and conduct of men interested in matters of state were touched by a spirit of idealism and pitched on a high ethical plane. Charles Allen was active in the concerns of his town and county. He connected himself early with the republican party and became a leader among the young men of his neighborhood in political and public affairs. He was associated in the practice of law with George T. Davis, a famous wit and brilliant conversationalist, who had challenged the marked attention of Lincoln during one of his early visits to Massachusetts.
As Reporter of Decisions Charles Allen manifested the capacity for accurate discernment of principles and a clear conciseness of expression, invaluable in that office, and of great utility in any legal work. The labor of the reporter insures a full knowledge of cases difficult of acquisition in any other way. After more than six years of service as reporter followed a period of five years as Attorney General, and then seven years of general practice. He was chairman of the commission to revise the legislative enactments of the Commonwealth, which became the Public Statutes.
He was appointed an associate justice of this court in 1882, at the age of fifty-four. At that time within a space of less than two years, one associate justice was made chief justice and all the associate justices were new appointees. It is a significant tribute to the qualities of these men that the court suffered no diminution of prestige even while they were new to their tasks. To this distinction Charles Allen contributed in no small degree. For sixteen years he labored on this court in perfecting the visible fabric of our law. At nisi prius he was considerate of the feelings of parties, of witnesses and of counsel who appeared before him, while his strong sense of justice and great abhorrence of every form of wrong brought right results. His manner was dignified and his appearance commanded respect and won confidence. Opinions of especial importance constituting leading cases in jurisprudence were written by him. His first is in 132 Mass. 250, and his last in 171 Mass. 586. In these forty volumes of our reports is the permanent evidence of his distinguished service to the Commonwealth.
His power of analysis was excellent and his reasoning faculties led him to correct conclusions. He saw clearly the determining principles on which a decision should rest, and he stated them with convincing force. He had unusual appreciation of the practical bearings of rules of law and of their operation in controlling the conduct of mankind and the manifold activities of industry and commerce. He apprehended perfectly the points which he wished to make and was direct and clear in expressing them. His style was chaste and his opinions are admirable illustrations of good English, written with simplicity, lucidity and force. Several years after he left the bench, the court, speaking through Mr. Chief Justice Holmes, referred to one of his opinions as "the characteristically clear and exhaustive judgment of Mr. Justice Charles Allen."
He was modest and retiring and almost shy, yet not wanting in courage and self-confidence. His love of literature was strong and constant. Your memorial has referred to his learning in Shakespeare. He was a careful and thorough student of the Bible, especially in his later years, and an earnest Christian throughout his life. He was liberal and wise in his gifts to numerous charitable causes. The sweetness and charm of his life and character endeared him to all who knew him in close relations. His distinguished ability and signal merit as a judge were fully equalled by his beautiful and noble qualities as a man. His long life was spent in unwavering and successful endeavor to promote the welfare of mankind.
An order may be entered that the memorial be recorded.
As a further mark of respect to the memory of the late Mr. Justice Allen the court will now adjourn.