152 Mass. 601 (1891)
The Honorable CHARLES DEVENS, a Justice of this Court from the third day of October, 1873, to the twelfth day of March, 1877, and, by reappointment, since the eighteenth day of April, 1881, died at his residence in Boston on the seventh day of January, 1891. A meeting of the members of the Suffolk Bar was held in Boston on the seventh of the following February, at which resolutions were passed, which were presented to the full Court on the same day. Before presenting them, the Attorney General, the Hon. Albert E. Pillsbury, addressed the Court as follows:
May it please your Honors: The members of the Bar have sought this opportunity to present to the Court an expression of their respect and affection for the late senior Associate Justice. Their resolutions, which they ask me to read, have been adopted out of a depth of feeling to which I can give but imperfect utterance. The end of a life like his, at the Scriptural limit of man's usefulness, a life crowded with interesting and memorable events, and devoted in its best years to honorable and distinguished public service, lamented as it is, cannot be regarded as untimely. But Judge Devens was so intrenched in the love and esteem no less than the respect of the people of Massachusetts, that his death has fallen upon them, and especially upon us who were in closer relations with him upon the bench and at the bar, with the weight of no common sorrow, -- a sorrow hardly reconciled even by contemplation of his noble and rounded career.
He was born at Charlestown, April 4, 1820, third in descent from a patriot of the Revolution. He graduated from college in 1838, studied law in Boston and at the Harvard Law School, and was admitted to the bar in 1841, the year of his majority. He began practice at Northfield, but soon removed to Greenfield, where he remained, representing Franklin County in the Senate in 1848 and 1849, until he took the office of United States Marshal in the latter year. In the exercise of that office, at the early age of thirty-one years, in the case of Thomas Sims, the particulars of which are part of our history, he was placed in an exceedingly difficult and trying situation, and it is a remarkable illustration of his character that he was able to discharge faithfully a most ungrateful duty, in the face of great popular excitement, without arousing personal hostility and almost without criticism.
Upon leaving this office, in 1854, he established himself at Worcester, and here, in successful practice, be was reached by the call of his country in April, 1861. He did not delay a moment to respond. He entered the service as Major, and rose through the rank of Colonel and Brigadier General to that of brevet Major General, which was conferred upon him at the personal request of General Grant, for gallant and meritorious services. He paid with his blood for every step of his military advancement, having been thrice wounded in battle, the last time, at Chancellorsville, so severely that the disability which it brought upon him would have subdued a less ardent and resolute spirit. At the close of the war he was assigned to the command of the military district of Charleston, in which be remained until June, 1866, when he resigned and returned home, with the purpose of resuming the practice of his profession. He had hardly put off the trappings of the soldier when he was called to assume the robe of the judge. He was appointed to the bench of the Superior Court in April, 1867, upon which he served until his elevation to the bench of this Court, in 1873. In March, 1877, he was called from this position to become Attorney General of the United States in the Cabinet of President Hayes, of whose administration he was one of the most honored and valued members. Returning home at the close of the administration, in March, 1881, he was almost immediately reappointed to his former position in this Court, the duties of which he discharged with unremitting industry and fidelity until his death.
Of the forty-nine years of his life after he reached full age, thirteen were spent in the civil and military service of the United States, and twenty-one in high official position under the Commonwealth. He never sought distinction, but still other distinctions were conferred upon him, of hardly less honorable character, which illustrate how naturally all who were associated with him in his various walks of life turned to him with their respect and confidence. He was some time President of the Society of the Army of the Potomac, of the Bunker Hill Monument Association, of the Military Historical Society of Massachusetts, and of the Alumni Association of his University, Commander of the Military Order of the Loyal Legion, and Commander in Chief of the Grand Army of the Republic. His power and popularity as a public speaker are attested by many addresses of distinguished merit, of which the eulogies upon General Grant in Faneuil Hall, and upon General Meade before the Society of the Army of the Potomac, and others mentioned in the resolutions of the Bar, are noble productions of scholarly and patriotic eloquence.
This is but a brief mention of his public services, but it is enough to indicate how large a place he filled in the history and affairs of his country and Commonwealth. It is doubtless true, also, that in the later years of his life the highest political honors of the State were open to him; but they had no attraction strong enough to win him from his judicial position, of which he often spoke as his ideal of honorable and useful public station, and in which, ready as he always was to respond to the call of public duty, he doubtless felt that he could do the State most service.
It will not become me, in presence of so many who were nearer to Judge Devens, and who might speak with full hearts out of long and loving intimacy with him, to comment upon his judicial qualities. But as one of the younger generation, who found him upon the bench when we came to the bar, I may be indulged in a word of grateful tribute to the uniform courtesy, patience, and kindness which he always bestowed from the bench upon those who need it most. He dealt with the younger members of the Bar with a dignity that was never austere, and with the gentle consideration and good nature that are never undignified; and among all the sorrowing friends who followed him to the grave there were no mourners more sincere than we who were so often aided by his friendly hand and counsel, and who learned from his gracious example that the kindly gentleman is the natural complement of the upright judge.
We feel to-day the force of what was said by Pericles in the great funeral oration, that in speaking of the dead it is difficult not to say too little or too much, lest on the one hand we fall short of the truth, or on the other seem to go beyond it. If we attempt to paint Judge Devens as we have seen him with the eyes of affection in the fulness and brilliancy of his varied and distinguished career, it may appear to our successors that we have been betrayed into the vice of undiscriminating praise. He was a most attractive figure. His character had every element to command the highest respect, and at the same time it was full of human interest. The blood ran red in his veins to the last day of his life. He was a striking example of the versatility of American genius, which goes naturally and gracefully from one career to another the most diverse, and he was a noble type of the high-minded and public-spirited American citizen. I have deemed it proper, notwithstanding we are here to commemorate the judge, to allude in some detail to his military service. It was a chapter of his life which be loved to reopen, and it was the last which he would have had omitted from his history. In a brief account of his life, recently prepared for a friend by his own hand, more than half is devoted to the five years of his service of his country in the field. It is not likely nor desirable that military glory will always shine with a lustre beyond any other, but patriotism will remain a virtue so long as virtue endures, and courage and loyalty will never fail to rouse the admiration and inspire the hearts of men. We may well cherish his splendid example, and as eulogies are spoken over the dead only for the benefit of the living, we commend it especially to the youth who have no remembrance of the time which tried in the fires of war the highest qualities of American patriotism, the youth of a country for whose security and defence there must be great citizens no less than great judges. We rejoice in his memory. We rejoice in his happy and useful life, -- in his worldly honors, and in the higher and more enduring honor which crowned him with universal confidence and affection. And even as we bid him farewell we rejoice that he was permitted to go hence in peace and without pain, borne to his last resting place, as he would have wished to be, "folded in his country's stars," with the tears and gratitude of his comrades and fellow citizens, and followed by the love which survives beyond the grave.
The Attorney General then presented the following resolutions:
Resolved, That the members of the Suffolk Bar desire to express their appreciation of the character and public services of Mr. Justice Devens, and to place upon the records of the courts he served so well a heartfelt tribute to his memory.
Of his career as a lawyer in the counties of Franklin and
Worcester, where his earlier professional life was passed, we
knew only by reputation as that of a good lawyer and a persuasive and successful advocate. But since 1867, when upon his return from his patriotic and distinguished service in the army he was appointed to the bench of the Superior Court, and through his subsequent service as Justice of this Court, as Attorney General of the United States, and again as Justice of this Court, holding that high office until his death, he has been intimately and familiarly known to the members of the Bar of Suffolk and of the Commonwealth as well, and to-day they have naught to say but words of praise for him and his many public services, and of sorrow and mourning for his death, for he had the gift of winning the affection as well as the confidence of the profession.
Mr. Justice Devens had rare and peculiar qualifications for the judicial office, -- a singular balance of qualities and powers essential for the wise, pure, impartial administration of justice: a serene patience and good humor, a sense of justice intuitive and inborn, an absolute regard for truth and right, a keen appreciation of the proportion, relation, and fitness of things, a hearty respect for and sympathy with manliness and virtue, and a bitter scorn for the false, the low, and the mean. However slowly and reluctantly he might have reached an opinion, when finally convinced he adhered to his conclusion with great tenacity. He had a strength of will and courage that bore him through many a grave crisis, whether it called him to perform a duty imposed on him by law, but repugnant to his feelings and his wishes, or to hold a division in line of battle or lead it in a desperate charge.
In his personal relations with his friends he had a peculiar charm and influence, for he had great social gifts, charm of manner, grace of speech and bearing, and sparkling humor, and his conversation was enriched with anecdote, apt proverb or illustration, and telling quotation culled from all books and from all times.
His success as Attorney General of the United States in performing the duties of that great office, requiring executive as well as professional and judicial qualities, was acknowledged by all. He revived the practice of arguing himself all important cases of the government in the Supreme Court, a duty practically abandoned by his immediate predecessors. He was universally, esteemed and trusted, and his opinions in the published volumes of the Opinions of the Attorneys General, covering questions of law and practice, interpretation and custom, are quite models in their way.
As a public orator on great occasions he was always equal to the demands of the hour. He belonged to that school of oratory of which Mr. Everett was a most striking and brilliant example; and he bore himself notably well on the 100th anniversary of the battle of Bunker Hill, and the 250th anniversary of the founding of Harvard College, and on other memorable occasions.
He was thus a many-sided man, not pre-eminently great or alone in any one branch of knowledge, or in any one line of labor or duty, not apart from other men in qualities or characteristics developed to the highest degree in one direction, but armed with many gifts and capacities that enabled him to do many things conspicuously well. For this reason, it is difficult to portray his character by any analysis or enumeration of particulars. It is because of the unity and harmony of all the elements, so happily combined in him, of character, manner, and person, and because education had done its perfect work and enlarged the whole intellectual and moral development of the man in equal degree, that we shall recall and remember him best for the finish and rounded completeness of his character, fashioned and moulded during a life ennobled by intellectual labor, by weighty responsibilities, by high aims, and by steadfast moral purpose.
CHIEF JUSTICE FIELD responded as follows:
Brethren of the Bar: The Court gladly unites with the Bar in this public expression of respect and affection for the late Judge Devens.
Our duties as Justices necessarily bring us into very close personal relations with one another, and the death of any member affects us in much the same way as the death of a member of a family. Judge Devens was the oldest of the Justices, and, taking all the years of his service together, had been longest, upon the bench. As a companion and associate he was one of the most amiable of men. While he was affectionate and of "incomparable gentleness" and sweetness in conversation, be had, as Clarendon says of Falkland, "a courage of the most clear and keen temper, and so far from fear that he was not without appetite of danger." He was "a great cherisher of wit, fancy, and good parts in any man." His personal appearance was such as to win admiration and inspire respect, and it illustrated some of the qualities of his mind. It was commanding, gracious, simple, yet with a slight flavor of old-fashioned ceremony about it which recalled the exemplars of his college days. His natural fondness for oratory, and the estimation in which it was held by him and his contemporaries, had, I think, much to do with his early training. He never seemed to take much interest in the natural sciences, but his miscellaneous reading in English was wide, and included all the best literature, and he had rare skill in making quotations from it at will, which were always felicitous and never trite. He was accustomed during the latter part of his life to read a good many French books, and he remembered his Latin better than most men of his age. He found his recreations in society and books. He spoke so easily and so well that there was some danger of sacrificing, substance to form; but if he ever had any indisposition to submit to long continued hard work, he conquered it many years before he died. Certainly, since it has been my privilege to know him well he has been severely laborious. He had a desire for public employment, and from his ancestry as well as from his temperament he was impelled to take a personal part in the Civil War. Of his military services, however, I am not competent to speak, further than to say that he seemed to me to look back upon them with more satisfaction than upon any other part of his life.
Of the many different public offices which he held, it may justly be said that he performed the various duties always with adequate ability and with strict fidelity. I think that in our profession he grew constantly in intellectual power, and that during the last ten or fifteen years of his life he performed his best work. His mind was not originally much inclined to analysis and directness, and incisiveness of thought and speech were not so much cultivated when his intellectual habits were formed as they are now. He reasoned more by analogy from precedents and from history, and he had, or had acquired, breadth of view, sufficient professional learning, strong common sense, a just appreciation of the relative values of things, and a constant regard for practical convenience and expediency. In his decisions he showed the last and best quality of a good judge, -- excellent judgment. In the bearing of causes he was patient, courteous, impartial, anxious to know all that could be said on every side, open-minded, deliberate in judgment, and when he reached his conclusions, very firm. His simple, manly character and love of justice and of fair play gave him a deep seated contempt for fraud and evasion, and not much toleration for subtleties. More and more as he grew older did he take pains to state carefully, not only the conventional grounds, but the real grounds in morals or expediency on which legal decisions must ultimately be supported. Apparently he thought that the law should be intelligible, and that the reasons on which it rests should be such as the people who must obey the law could understand.
After his last appointment to this Court he gave up every desire, if he had cherished any before, of holding any other public office, and the unwearied diligence and painstaking good judgment with which he performed his judicial work are attested by his published opinions. Occasionally he accepted invitations, which could not well be declined, to speak before public assemblies met to commemorate great events, and he easily proved that be was among the first of orators, and that from his long and varied experience he had gathered a considerate wisdom and a depth and appropriateness of feeling which are the necessary supports of the best public eloquence.
I cannot take leave of him without expressing for all the members of the Court the great love we had for him. In our consultations there was a certain charm about him which made his presence always a delight, whatever differences of opinion might arise in the discussions. He seems to me to have been fortunate in his life; and his public services in many ways had been so useful and conspicuous, and his character had become so well known, that he died universally lamented.
The resolutions of the Bar, with a memorandum of these proceedings, will be entered upon the records of the Court.
The Court then adjourned.