William Caleb Loring
277 Mass. 589 (1931)
Memorial
The Honorable William Caleb Loring, an associate justice of this court from September 7, 1899, until September 16, 1919, died at Beverly on September 8, 1930. On Saturday, December 12, 1931, a special sitting of the full court was held at Boston, when there were the following proceedings.
The Attorney General addressed the court as follows:
May it please Your Honors: I present a memorial to William Caleb Loring, by the Bar of this Commonwealth, prepared by a committee.
William Caleb Loring: A Memorial.
William Caleb Loring was appointed an Associate Justice of the Supreme Judicial Court of Massachusetts by His Excellency the Governor Roger Wolcott on September 7, 1899, in place of Oliver Wendell Holmes just made Chief Justice. He took his seat on the twelfth of September in the same year at Pittsfield in the County of Berkshire and served until September 16, 1919, almost exactly twenty years, when he resigned his honorable office because of ill health.
He was born at Beverly, Massachusetts, on August 24, 1851, the eldest son of Caleb William and Elizabeth Smith (Peabody) Loring, and traced his native ancestry in a direct line from the Thomas Loring of Axminster in Devonshire, who with his wife Jane Newton migrated from England to Hingham late in 1634, and was admitted a freeman in the Colony of Massachusetts Bay in March of the following year. A moment may be instructively spent in following the family line. Farmer, innkeeper and deacon in the church and later constable at Hull, the first Loring progenitor lived again in the second as town clerk, selectman and representative in the General Court of 1692. In the third generation appears the Caleb, Captain Caleb (1688-1756), contributor of the Christian name with an old-fashioned flavor borne frequently in later descent, and in Justice Loring's instance as a surname. His son was Caleb (1736-1787) of Hingham and Boston, distiller and ship owner. Next in descent came the Honorable Caleb, merchant of Boston and State Senator in 1828. He was the father by his wife Ann Greely of the Honorable Charles Greely Loring, eminent lawyer, State Senator in 1862, and Fellow of Harvard College. In the next and seventh generation was Justice Loring's father, Caleb William of Boston and Beverly. The elder practitioners at the bars of Suffolk and Middlesex remember him as a high-minded and diligent trustee whose word was law with many because of his wisdom and independence of judgment.
William Caleb Loring was born in the purple. But this in New England rarely imports a deeply Tyrian dye. His bent from boyhood, though duly aristocratic, was serious. His private school masters William Eliot Fette and Epes Sargent Diswell were both graduates of Harvard, and he entered Harvard with the Class of 1872. There he held high rank as a scholar and was chosen to Phi Beta Kappa. But he also excelled with the oar, so as to row on the University crew. When he graduated from the Law School he was admitted (with two others) to the degree of Bachelor of Laws cum laude, a distinction then for the first time conferred by Harvard.
At the Massachusetts Bar his progress was no less significant and rapid. From the first of December, 1875, until July, 1878, he was Assistant Attorney General, an office which he resigned in order to become a partner in the firm of Ropes, Gray and Loring. This association in the practice of the law continued until 1899, and in the course of it, from 1882 to 1886, he was general solicitor and later general counsel of the New York and New England Railroad. When appointed to the Supreme bench of his native state he had just passed his forty-eighth birthday.
Before reference to his judicial qualities and services, brief mention may properly here be made of the later events of his life and of the public trust reposed in him. His wife Susan Mason Lawrence, whom he wedded in 1883 and who predeceased him in 1923 was a daughter of Amos Adams and Sarah Elizabeth (Appleton) Lawrence. Judge Loring and his wife had no children. He served as a member of the board of overseers of Harvard College from 1902 to 1911, and was a lecturer at the Harvard Law School, on the practice of the law from 1921 to 1929. Harvard bestowed upon him in 1901 the honorary degree of Doctor of Laws. As president (1911-1928) of the board of trustees of the American School of Classical Studies at Athens he was decorated by King George II of Greece in 1922 with the Golden Crown of a Knight Commander of the Royal Order of George I, in recognition of his distinguished services in Greece and to the cause of Hellenic Studies. These studies were dear to his heart, as were also various other outside interests which stirred his enthusiasm. His chief material joy was his large estate at Prides Crossing on the verge of the sea, where he farmed and gardened and raised pedigreed cattle, and where all his summers were passed. For long he was an active yachtsman. In after years he became absorbed in the cultivation of roses. He traveled much and was greatly interested in art. He was a religious worshipper of deep convictions, a communicant of the Protestant Episcopal Church, a vestryman of Trinity Church, Boston, and of St. John's Church at Beverly Farms.
In 1924, five years after his retirement from the bench, Justice Loring accepted an appointment by Chief Justice Rugg as a member of the Judicial Council of Massachusetts just created. This was against the advice of his physician, but he was unable to resist the allurement of so great an opportunity for constructive public service. After having been chosen its chairman, he spoke of the experiment at a largely attended gathering of judges and lawyers as "a high adventure," and besought for it the cooperation of the Bar. He undertook this exacting work with ardor, unsparing of himself despite ill health, and it was largely due to the impetus which he gave to it during the two years he was chairman that its organization and methods of procedure were evolved. When obliged by his doctor's orders to relinquish leadership, he served as honorary chairman during 1927, 1928 and 1929.
The twenty years that Justice Loring sat on the Supreme Judicial Court were part of a transition in this Commonwealth, as throughout the land, from comparatively minor to vast affairs. Even the firmest principles of law were in the process of being reconciled with fresh conceptions of justice, and both old and new principles were in process of application to the complicated situations arising from new engines of commerce, new forms of taxation and rapid growth.
The Massachusetts Bar was quick to recognize in the appointee qualities especially valuable in this evolution. His vigorous and commanding presence was supplemented by great energy and by a passion for thoroughness which led him to the root of every issue. He had a strong intellect, was learned in legal principles and governed by a deep sense of rectitude. His standards of conduct and decorum were of the highest and were unflinching. Yet he could be relied on to hold the balance even between venerated precedent and the anomalies presented by a more complex civilization. In every situation he was animated first of all by the desire for complete justice and was untiring in his pursuit of it. Two of his colleagues have said of him that he retained his impartiality of mind in the consultation room to an exceptional degree. Some austerity of bearing did not conceal from those who knew him well his readiness to be convinced even against his will and the warm heart which kept him in sympathy with his fellow man.
Judge Loring's opinions are notable in the estimation of the Bar for their sound wisdom and for their learning. So comprehensively do they express the judgment of the court that they are already used in Law schools as models in the case books. When he had occasion to differ with the majority his convictions were set forth tenaciously, as in Tyler v. Court of Registration, 175 Mass. 71, 82-105, a dissenting opinion of over twenty-two pages rendered during his first year of service. That his power of exposition was retained to the end appears, in Massaletti v. Fitzroy, 228 Mass. 487, in which the rights of one, who travels gratis in a motor car by the owner's invitation, to recover for injuries are weighed and passed on as the opinion of the court with masterly thoroughness. In character, ability and zealous devotion to the public weal, we think of him as eminent on the roll of the judiciary of Massachusetts.
May it please your Honors: In memory of the Honorable William Caleb Loring, the Bar of the Commonwealth moves that this memorial be made a part of the records of this court.
Clift Rogers Clapp, Esquire, then addressed the court as follows:
May it please Your Honors: It was my good fortune to become a law clerk in the office of the firm in which Judge Loring was a partner in the fall of 1887, the fall after my graduation from the Law School. My work during the following year was mainly with him. Coming for the first time into daily contact with an able lawyer engaged in actual practice, my impressions of him were vivid. He has always remained a notable figure in my memory.
He was one of the younger members of the Bar, -- in the middle thirties. A strong man in every way, -- of great stature, physically powerful, strong in mind and in character, one who inspired loyal service.
He had already had a wide experience in practice. He had been the assistant to the Attorney General of the State, at a time when in addition to such duties as are now performed, the Attorney General and his assistant tried important criminal cases, and argued questions of law arising out of criminal cases before this court. He had been counsel for a Massachusetts railroad -- often in trouble -- but whose misfortunes probably gave him greater opportunities for professional training than if it had been in easier circumstances. He was self-reliant and direct in speech. It seemed natural that men should turn to him for help with confidence.
His firm did but comparatively little trial work at that time, but I came to think that trial work was what Judge Loring wished most to do. It seemed to me that his heart was in the court house. He appreciated the value and importance of lawyers whose chief business is to give sound legal advice, but I believe his own ideal of a lawyer's life was one spent mainly in the contests of the court room, and especially in arguments on the law.
Such cases as the office had to try were tried by him and he tried them well. In their preparation we learned the art of taking infinite pains. At that time professional investigators were not commonly used. Lawyers themselves, or the younger men in the offices, hunted up the witnesses and obtained their stories. To the preparation of a case with Judge Loring there was no limit of time or effort. His mind worked actively and constructively in divining the possibilities of his case and of his adversary's case as well. Once suggested, no line of inquiry was left unexplored, no fact left unverified. When at last he went into court, nothing that could have been foreseen was left to chance.
He liked to look up his law points for himself and to write his own briefs. While this imposed a great deal of work upon him, knowledge so gained is apt to have the merit of permanence, and I cannot but think it served him well when he became a member of this court.
A learned and witty Chief Justice of this court once said in an address that the law has one advantage over other professions in that it is easy to get out of it into something else. "Something else" played no part in Judge Loring's thought. No opportunity for wealth or power in a business career, no political office, however great, would have tempted him. His ambition was wholly within the lines of his profession.
Few men fully achieve their ambitions. I think Judge Loring was one of the fortunate few. His appointment to this bench was gratifying to him and to those who admired and respected him, not only because of the well deserved honor, but because of the opportunity for him to do the work he loved.
For this high office he was abundantly qualified. He had learning, wide experience, practical knowledge of the problems relating to corporations and large financial undertakings. He had great industry and courage. He had, moreover, that quality without which all the others go for nothing, -- he had an honest mind. He was capable of being convinced even though conviction ran counter to a preconceived idea. If he had prejudices he did not allow them to influence his reason. No one had a higher ideal of the right conduct of a judge, no one tried more devotedly and successfully to attain it.
Robert G. Dodge, Esquire, then addressed the Court as follows:
May it please Your Honors: Judge Loring became a member of this court just two years after I began practice. He was the first of only three justices who during my time have been appointed from the bar without previous judicial service. From the beginning he had the high respect of the lawyers of Massachusetts. He was always an impressive figure on the bench. His intellectual capacity and his strong character were alike fully recognized. The lawyer appearing before him felt assured that his argument would receive careful attention and thorough consideration. He himself long ago in an address at the Harvard Law School on the argument of a case stressed the importance to the lawyer about to appear before an appellate court of being, as he phrased it, "master of the record." He applied this principle to his work as a judge. Counsel always knew that his judgment when rendered would be founded on no superficial view of the facts, but upon the most thorough-going study of the entire case.
In point of style his opinions were, like the man himself, strong and rugged rather than graceful. They met every problem squarely and dealt with it thoroughly. There was in form no attempt at fine writing and in substance no subservience to overrefined and purely legalistic modes of reasoning.
In one respect peculiarly it was always felt at the bar that Judge Loring gave strength to any court with which he sat. His knowledge of business affairs and of commercial transactions was recognized and it was always a pleasure to find him sitting when a case calling for the application of such knowledge was to be presented. It was once said of Sir George Jessel that the community looked to him for "the most uncompromising justice" because of the belief "not only that he had a practical knowledge of most of the affairs of life, and was a learned lawyer, but that his mind was absolutely free from cant." These words seem to me to be just as applicable to Judge Loring.
The public service which he rendered in his later years as the first chairman of the Judicial Council has been referred to in the memorial. Those who served with him on that board will never forget the impression made upon them by his zeal, his interest in every question that arose, his effective leadership despite his condition of failing health. The experiment, then practically untried in this country, of constituting an official board of judges and lawyers charged with the duty of continuously studying the work of the courts and the rules of practice and procedure, and recommending improvements therein, became a success and furnished a model for similar boards in many other states, largely because of Judge Loring. By force of his strong personality and his sound judgment he was able to give direction to the work and make it effective. At the same time he never sought to dominate the minds of his associates or force his conclusions upon them. On the contrary the openness of mind which he is said to have retained to an unusual degree in the consultations of this court he always exhibited in the conferences of the Judicial Council. He was quite ready to be convinced by others against his own original impressions. The ability and the energy with which he conducted the work of the Council made it difficult to believe that in point of fact he was so far from well that after each meeting he was ordinarily obliged to take to his bed for the remainder of the day.
In the hours not devoted to professional activities Judge Loring was a most agreeable companion. In his own home he was a delightful host. Those privileged to be entertained by him in his splendid library overlooking the Charles River or at his summer residence on the Beverly shore were fortunate indeed.
He had a long life, but I could never look upon him as an old man. His death seemed to me untimely, and an occasion for deep regret. It leaves for us who remain the memory of one who brought distinction to our highest court and worthily upheld its fine traditions.
Robert Homans, Esquire, then addressed the court as follows:
May it please Your Honors: Too much cannot be said of the distinction gained by Mr. Justice Loring as a scholar in college and in the Law School, as a practitioner at the bar and as a judge of this court; but he was a many sided man, with interests and a character of his own which require mention in any memorial of his life. For example: one could not know Judge Loring without appreciating to the full his love of the water. He first owned and sailed a boat before 1868 the year he went to college. In college he rowed on his freshman and on his university crew. He last owned and sailed a boat in 1923. For that period of over fifty-five years, spending a large part of his life in Beverly, he sailed the coasts of New England, enjoying the responsibilities of navigation to the full. He only gave up the water when he could no longer safely make the necessary physical exertion.
With his love for the sea came naturally his constant interest in that old Massachusetts charity, the Humane Society of Massachusetts. Before the Federal government undertook the work of saving life along the coast, that society had the full responsibility in Massachusetts of providing the necessary men and apparatus for the rescue of those shipwrecked. For over ten years before his appointment to the bench, Judge Loring undertook the personal inspection of the society's boathouses, from Cape Ann to Nantucket and the Vineyard, with their guns, life boats and gear so that he might make sure that all was on hand, well found, in case of need. He knew with some degree of intimacy the captains of the stations, made friends with them and encouraged them and their crews to reach a high state of efficiency. He made improvements in the design of life boats, improvements adopted by the Federal government. After his retirement from the bench he became the society's president.
So, in any view of Judge Loring, one must not forget that he lived on salt water, knew the sea and meant to do his share, and enjoy his share, in what was to him, in many respects, a seafaring community.
And I think that when it is said that Judge Loring meant to do his share, that describes his character as well as a few words can describe it; for if a man really means to do his share he always does more. I do not suppose Judge Loring wished to leave the bench. I take it that he left it because he felt his strength, after twenty years of service, not equal to the task. But his ancestors and he and his family of his own generation had been public servants and he did not propose to live a life of ease however much he might be entitled to it. It has been said that a union of robust virility and high breeding give distinction and a right to say noblesse oblige. Judge Loring probably never said that to himself but he certainly acted on it; and acted on it under, at times, great physical disability.
It is not easy for a man of seventy, or more, to deal with the young, yet he felt that he owed a duty to the younger members of our profession and for five years between 1921 and 1929 he lectured on the practice of law at the Harvard Law School. It is not easy for a man of over seventy to take on wholly new work; yet he accepted for two years, in spite of his doctor's orders, the difficult task of chairman of the newly created Judicial Council and the responsibility for its successful inauguration. And he was not a chairman who simply presided; he did, because he always did, more than his proportion of the work done.
And nothing shows more clearly that impelling force of duty within him than his acceptance of the presidency of the Bar Association of the City of Boston in 1920. There was then maladministration in high professional office, affecting fundamentally the administration of justice in this community. No one knew whether or not it would be possible to bring those who had offended to book. Public passions were deeply aroused. It was a time when a retired justice of this court would have been justified in leaving the job to younger men. But Judge Loring never hesitated. He took the post of responsibility and saw to it, before he stepped aside, that the work would be accomplished.
Judge Loring always inspired respect. To many his attitude on the bench may have appeared severe; but to me, once I knew him, he inspired only affection. His words were sometimes gruff; his acts were kindly and tender. If he could do something for another, he did it because he cared to be kindly. There was no other reason. He once said from this bench of a most respected member of the bar words like this: "I pay my tribute to the memory of a distinguished lawyer and a gallant gentleman, whose service ended only with his death." That tribute is due to Mr. Justice Loring in the fullest possible measure.
W. Rodman Peabody, Esquire, then addressed the court as follows:
May it please Your Honors: Judge Loring's life was devoted, of course, first to the practice and then to the exposition of the law. In spite of the pressure of these immediate responsibilities however, during seventeen years, from 1912 to 1929, he found a happy avocation in the presidency of the Trustees of the American School of Classical Studies at Athens. He succeeded in this position James Russell Lowell, Charles Eliot Norton, and Judge Francis C. Lowell. These predecessors had been the wise and kindly advisers of a group of scholars, young and old, who through brief terms of residence in Greece had sought so to equip themselves that they might instil into modern college youth something of the atmosphere of Hellenistic culture as well as drill their pupils in the grammar and syntax of Xenophon and Homer.
Under Judge Loring's administration this little colony of classical scholars, supported largely by their own hopes and ideals, was converted into an institution which is a recognized graduate department of all the principal American colleges and which through its excavations of ancient cities and the brilliant discoveries of its directors has assumed an international leadership in the field of classical archaeology. Tested by material resources alone the school which in 1912 owned a single simple building and was dependent upon an income of approximately $10,000 increased in resources during Judge Loring's administration until in 1929, when he resigned from the presidency, its capital assets were upwards of $2,000,000 and its income was over $60,000.
It was natural that Judge Loring found keen satisfaction in molding the corporate structure to meet the physical growth of the school and his skilled draftsmanship is apparent in the by-laws, deeds of gifts, and other instruments. In the later years of his administration his professional experience was tested by negotiations of an extraordinarily difficult character. The school had been offered a large gift which was to be applied, under certain restrictions, to the excavation of the ancient Athenian Agora. This necessitated the destruction of that portion of the modern city which overlaid the original market place. A comprehensive statute in the nature of a contract between the Greek government and the school embodying rights of eminent domain, the closing of public ways, the removal of churches and the relocation of public utilities, gave rise to many conflicting interests and many legal complications, -- not the least difficulty of the American counsellor being that of grasping the exact significance of the modern Greek legal phraseology. The passage of an Act of Parliament under which the work is now proceeding with general satisfaction was a triumph of patience as well as of wisdom.
In 1924, through the generosity of Dr. Joannes Gennadius, former Greek ambassador to Great Britain, the school received a large collection of books of unique interest to scholars of Greek history and Byzantine culture. The gift was made upon the condition that the trustees of the school to house these books would erect an appropriate library building. The present Gennadeion, built from funds secured under Judge Loring's administration, is perhaps the most lovely modern building of monumental character in Athens. Approached through a formal rose garden and framed by a dark grove of Attic cypress and the blue Athenian sky, its mass of glistening white Pentelic marble and sweeping colonnades stand conspicuously above the city on the side of Mt. Lycabettus. It was one of the happy experiences of Judge Loring's later life when with his associate trustee, Mr. Frederick P. Fish, he went to Athens to preside at the dedication exercises of the Gennadeion and to receive the grateful recognition of the Greek government for this enrichment to its literary wealth and civic beauty. He had already, in 1922, been decorated by King George II of Greece with the Golden Crown of Knight Commander of the Royal Order of George I in recognition of his distinguished services to Greece and to the cause of Hellenistic studies.
In 1929, just before his resignation from the presidency of the school, a companion building to the Gennadeion was completed. Less ornate but still dignified and appropriate, it occupies three sides of a hollow square and provides much needed living quarters for the men and women students of the school. On a bronze tablet in the doorway are these words --
"William Caleb Loring Hall
The Trustees of the American School of Classical Studies at Athens have caused this building to be named in honor of William Caleb Loring President of the Trustees of the School from 1912 to 1929 in grateful recognition of his wisdom and devotion."
The record of Judge Loring's service to classical education is thus perpetuated in enduring form.
Chief Justice Rugg responded as follows:
Mr. Attorney General and Brethren of the Bar: The memorial to our former associate is comprehensive in biographical detail, and moderate in the estimate of his personal charm, professional strength and judicial power. The remarks at the bar have justly portrayed his outstanding traits. They both show at once the confidence reposed by the bar in his character and wisdom and the veneration cherished for his memory. We are thoroughly appreciative of the esteem to the individual and loyalty to this tribunal manifested by what has been said.
There is a certain detachment about the proceedings of this hour for it is twelve years since Mr. Justice Loring left the bench. Nevertheless my personal emotions are deeply stirred by the thought that he outlived all the members of the court as constituted when I became the junior associate. Throughout our service together he was to me most considerate, kind, sympathetic and helpful.
Nature did much for William Caleb Loring. Something over six feet in height, his physical presence was dignified and impressive. His mental structure and endowment likewise were of large proportions. A commanding figure and a powerful intellect combined to clear his pathway. Family and college and law school gave him all their advantages. His maternal great grandfather was for twenty-eight years a justice of this court. By every token he was destined to a distinguished position in his day and generation. His ambition was to devote these exceptional faculties to their highest usefulness. Few have come to this bench with a wider knowledge of men and affairs than he. When he was assistant attorney general all criminal cases throughout the Commonwealth were briefed and argued, before the full court by the attorney general or his assistant. Thereby he had become familiar by experience with the theory and the practice of the criminal law as well as of the branches of governmental law then administered by that department. His remaining years at the bar were spent in active and intimate professional participation in extensive and important interests of business, commerce and transportation. He undertook the work of a justice of this court in the plenitude of mature manhood. During his two decades of service on the bench he wrote nine hundred and one opinions expressive of the judgment of the court. The first was McGauley v. Sullivan, 174 Mass. 303, and the last Ross v. Burrage, 233 Mass. 439. He wrote five dissenting opinions and concurred in five other dissents, and he wrote three separate advisory opinions to different departments of government under the requirement of the Constitution. His aim in the composition of opinions was to make them so clear in exposition of governing principles in their application to the facts as to be incapable of misunderstanding. He wrote not alone for the leaders and scholars of the profession but equally for the inexperienced and those who practise in more humble positions. His method of approach was to study every case in all its bearings with the utmost thoroughness. Even though the case might seem simple, he never put final trust in a first impression. He examined every proposition from center to circumference to the end that nothing should escape observation. As a consequence all his opinions carry the conviction of fulness and completeness as well as reasonableness and authority. It is not surprising that many have found their place in case books as illustrative of basic legal principles. It is almost invidious to make particular mention of any in such a wealth of excellence. An important decision in so-called labor union litigation often followed in this and other jurisdictions is Pickett v. Walsh, 192 Mass. 572. The lower standard of care exacted of those who transport others gratuitously, established by legislation in some States, was worked out according to the principles of the common law in the masterly opinion in Massaletti v. Fitzroy, 228 Mass. 487. Correct equity practice in troublesome aspects was put upon a firm foundation in Warfield v. Adams, 215 Mass. 506, and Cook v. Scheffreen, 215 Mass. 444. In his long period of service he covered by his own opinions almost the whole field of law as commonly practised in the courts. As matter of course with his background and equipment he constantly grew in all the learning of the law and in stature as a judge. While he was strong in every field he has always seemed to me especially powerful in chancery jurisprudence. The importance of his visible contributions to the case law and the juristic fabric of the Commonwealth can hardly be overestimated. There was another side to his judicial activity far more difficult to measure at its true worth. He had rare capacity for helpful discussion around the consultation table. In the tentative expression of impressions immediately following arguments he was able commonly to seize unerringly upon the salient features of a case and to separate wheat from chaff. In the more mature deliberations following the preparation of the opinion he was lucid, incisive, accurate. He had extraordinary ability for putting issues in their true perspective. He held in great esteem as the means for achieving the best results the give and take of
