USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 2 > Part 16
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about two hundred years. A statute passed in 1836 failed to recognize the right of choice and required a trial by jury in all cases in which an indictment was found by a grand jury. The Judicial Council of Massachusetts has recently recom- mended a revival of the seventeenth century option.
The following record of a case in the Court of Assistants not only shows the option in operation, but illustrates the quaint language of a colonial indictment, the kind of punish- ment and the form of court record. In almost every case in which there was a jury trial the record states specifically that "the prisoner at the barr pleaded not guilty and put himself on his tryall by God and the Country."
"Jno Watts being presented & Indicted by the Grand Jury was brought to the Barr & was Indicted by the name of John watts marriner for not hauing the feare of God before your eyes being Instigated by the Divill in the time of the warr wth the Indians did in a perfydious & treacherous way against the Inhabitants of this Colony peace & safety to betray them into the ennemyes hands & hath in or about June last traded powder & shott whereby the ennemy hath binn supplyed Con- trary to the peace of our Soueraigne Lord the King his Croune & dignity & ye Act of the Council of this Commonwealth.
"To wch Indictment he pleaded not Guilty put himselfe on his Tryall by God & the bench The Court on consideration of all the euidences in the case produced doe sentence yow to Runn the Gantelop thro the Company that trayne in Boston on second day next being the 10th Instant & Give in his bond of one hundred pounds for his Good behaviour & pay the Costs & charge of the prosecution standing comitted till the sentence be performed."
The General Court tried to emphasize in the "Bill of Rights" referred to, and in later acts establishing courts, their desire to have all questions of fact tried by juries, especially because the Acts of Trade were to be enforced by Courts of Admiralty without the right to claim juries. This insistence on jury trial in all cases was one of the reasons why some of the acts creat- ing courts between 1692 and 1699 were disallowed. This grievance of the lack of juries in the Admiralty Courts came to the front again later about 1768 and finally found its way into the Declaration of Independence.
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SUPERIOR COURT OF JUDICATURE
THE SUPERIOR COURT OF JUDICATURE
A government of laws, as distinguished from a government of clergymen, began to develop with the final creation, in 1699, of the "Superior Court of Judicature Court of Assize and General Gaol Delivery." Several attempts to create a system of courts after 1692, were vetoed by the Privy Council in England for various reasons,-among others because the first two acts provided for a court of chancery.
The Privy Council apparently thought that a locally created chancery court would be against the interests of the Crown, and took the view that it "encroached on the prerogative" and that only the Crown could create such a court. Thus the preju- dice against equity, which was still in its earlier develop- ment in England (where it was sometimes described as vary- ing with "the length of the Chancellor's foot") began in Massachusetts as a prejudice on the part of the Crown. When the court was finally established in 1699, it received no general equity jurisdiction and people grew up without it. The preju- dice thus became a part of the popular prejudice against trust- ing judges with power. As Woodruff says, "The terrors of the court were the terrors of the unknown."
While strictly construed statutory grants to the courts of special equitable powers were made from time to time, the prejudice against the more general jurisdiction exercised by the English chancellors lasted until 1877, when the present jurisdiction "according to the general principles of equity jurisprudence" (by that time crystallized as was the common law) was finally granted to the Supreme Judicial Court. In 1883, it was extended to the Superior Court. This long delay in broadening the procedural opportunities of litigants seriously affected Massachusetts law in various ways. Generations of the bar grew up with very limited knowledge of equitable principles and their application, and, even to-day, most of the equity business is done in the metropolitan district.
Although there was no chancery court, doubtless the laymen who acted as judges of the law courts administered some "informal equity" without knowing it. The usual method of obtaining such relief appears in the account quoted by Gover- nor Pownall from Benjamin Pratt, one of the leading lawyers.
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"There is no court of chancery in the charter governments of New England, nor any court vested with power to deter- mine causes in equity, save only that the justices of the in- ferior court and the justices of the Superior Court respectively have power to give relief on mortgages, bonds and other penalties contained in deeds : in all other chancery and equita- ble matters both the Crown and subject are without redress. This introduced a practice of petitioning the legislative courts for relief, and prompted those courts to interpose their author- ity. These petitions becoming numerous, in order to give the greater dispatch to such business, the legislative courts transacted such business, by orders and resolves without the solemnity of passing Acts for such purposes ; and have further extended this power by resolves and orders beyond what a court of chancery ever attempted to decree, even to the suspending of public laws, which orders and resolves are not sent home for the royal assent. The tendency of these measures is too obvious to need any observation thereon."
Governor Hutchinson, in a speech to the two Houses in 1772, strongly protested against such an assumption of judicial power by the General Court.
OTHER COURTS AND PRACTICE (1699-1757)
Besides the Superior Court the Statutes of 1699 provided for general sessions of the peace in each county for criminal cases, and Courts of Common Pleas for civil business in each county, with appeals to the Superior Court. The attempt to regulate the jurisdiction of these courts was peculiar. A system of "reviews" or appeals from a jury in one court to a jury in another court was provided, which amounted to giving a right to three trials before judgment in any case could be final. Thus became possible a delay of three years. As Chief Justice Mason says, "A modern community of repudiating debtors could not well provide more effective obstruction to the diligent creditor." It is not surprising that the Lords of Trade objected and the Privy Council disallowed the statutes embodying the scheme. The substitute Acts of 1701 changed this condition somewhat, and was allowed to stand; but the system of "reviews" of a most dilatory character remained
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FUNCTIONS OF THE PRIVY COUNCIL
and continued (with minor limitations in 1754 and 1757) until about 1800, long after the Constitution was adopted. The picture of a jury trial in the 18th century and the difficul- ties of reforming it appear in Knapp's Sketches of Eminent Lawyers. "Nothing can be more absurd than that five judges, sitting in a trial, should each give charges to a jury, no two perhaps agreeing in opinion upon facts, and probably differing in some point of law. But notwithstanding this absurdity was so palpable, yet the lawyers had great labour in opposing popular prejudice to obtain an alteration."
In 1701 the legislature confirmed by statute the practice of requiring "attorneys" to take an oath, but as there were so few sworn attorneys in 1708 a Province law provided "and no person shall entertain more than two of the sworn allow'd attorneys-at-law, that the adverse party may have liberty to re- tain others of them to assist him upon his tender of the es- tablish'd fee which they may not refuse."
The oath required was in substance the same as that re- quired today. It has been aptly described as a "condensed code of ethics." As early as 1713 Judge Sewall emphasized the professional responsibilities of attorneys by saying, "Let them remember they are to advise the Court as well as plead for their clients."
JUDICIAL FUNCTIONS OF THE PRIVY COUNCIL IN ENGLAND
The functions of the Privy Council, whether legislative or judicial, were always disputed in Massachusetts. The "Royal Disallowance" of legislation, the exercise of which has already been mentioned, was not a "repeal," inasmuch as the local assemblies took no part in it; it was not a "veto," since legis- lation became effective from its enactment. It has been de- scribed as "analogous to the function of the Supreme Court of the United States in passing upon Acts of Congress"; but that function is a judicial function, and the "Royal Disallow- ance" was obviously, in theory and in practice, a purely legis- lative function. It is true, however, that through the testing by the Privy Council of colonial statutes, to see if they con- flicted with the charters or the acts of Parliament, the colon- ists, while disliking such foreign interference, were familiar
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from the start with the conception of enforceable restrictions in a written instrument upon legislation. Here were the germs of an idea, the later development of which was the great American contribution to the science of government.
The judicial function of the Privy Council was, however, distinct and similar to that of our American courts of last resort, when its jurisdiction was conceded and appealed to. Lechford, writing in 1643 in his Plaine Dealing reflects the general sentiment of the magistrates in Massachusetts through- out the colonial period; by saying that from the judgment of the "Generall Court there is no appeale, they say : Notwithstanding, I presume their Patent doth reserve and pro- vide for Appeales, in some cases, to the Kings Majesty. .. . "
The original charter said nothing about such appeals to the king; but it is doubtless true that in England "it was taken for granted that appeal from the colonial courts to the King Council was inherently the right of every English subject." This was not admitted in Massachusetts, however. Prior to 1780, there appears to be no record of such appeal with one possible exception in 1678. The Province Charter of 1691 contained a specific provision naming the King and Council as the court of last resort "in any personal action, wherein the matter in difference doth exceed the value of three hundred pounds Sterling, provided such appeal be made within fourteen days after the sentence or judgment given; and that before such appeal be allowed, security be given by the party or parties appealing, in the value of the matter in difference to pay or answer the debt or damages for which judgment or sentence is given, with such costs and damages as shall be awarded by us in case the judgment or sentence be affirmed."
Aside from the continued prejudice in Massachusetts against the idea of such appeals, obviously the expense in- volved in giving the required security and presenting and arguing the appeal in London, was usually prohibitive; so that it is not surprising to find that between 1680 and 1780 only two hundred sixty-five appeals reached the Privy Council from all the colonies. Of these, forty-four came from Massachu- setts as compared with seventy-eight from Rhode Island, fifty- three from Virginia, and twenty-one from New York.
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DECLARING STATUTES VOID
SIGNIFICANT CONSTITUTIONAL CASES
Among these, however, were two cases of considerable constitutional importance, one of them from Massachusetts. In the case of Winthrop v. Lechmer, about 1727, the Privy Council held invalid a Connecticut Statute varying the English common law of primogeniture, because unwarranted by the charter. About ten years later (1637-1638) a similar question arose in the case of Phillips v. Savage in Massa- chusetts. There, an estate was distributed in five parts in accordance with a Massachusetts statute passed in 1692, which was ratified and confirmed in 1695 by the then Privy Council and had been reaffirmed and explained in other later acts; estates had been distributed under these statutes for over forty years. Under these circumstances, the Privy Council naturally showed its wisdom in confirming the local practice as a practical interpretation of the charter, in spite of their previous decision in the Connecticut case. Thus the Council in its judicial capacity in 1738 accepted as a precedent its own earlier action in its legislative capacity, supplemented by years of practical application throughout the colony. The constitutional importance of these decisions lies in the fact they were actual examples of judicial consideration of restric- tions on the scope of legislation, an idea with which Massa- chusetts people before the Revolution were more familiar than has been generally recognized. Hence they responded to the arguments of Otis and the Adamses which applied the same principles of restraint to Parliament itself.
DECLARING STATUTES VOID
The connection between the attitude of the Puritans of the early seventeenth century toward law, and the arguments of Otis against the Writs of Assistance, is generally overlooked. The picture of Otis on the walls of the State House shows him with his arm raised and his finger pointing toward the sky. This is doubtless intended to represent his references to the Law of God as the higher test of an act of Parliament. Also in the answer to Dr. Childs in 1646 the General Court expressed the idea that anything, whether common law or not,
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established "contrary to" the "laws of God" was, "not laze, but an error." Warren, in his History of the American Bar, calls attention to the fact that this idea was common even in England, and was expressed by Lord Chief Justice Keble in 1650. John Milton, in 1651, stated as a "fundamental maxim," that "nothing is to be counted as law that is contrary to the Law of God or of reason." That the "Law of God" is a somewhat vague test to be applied by courts was, of course, realized even more in 1761 than in 1650; but the gen- eral sentiment of Massachusetts during a period of a century and a half before the Revolution gradually developed with the central idea that courts could, and should, disregard legislation as void if contrary to what were understood as "constitutional principles" even though unwritten. Lord Acton, in modern language, compared the substance of the speech of Otis to the case of "Charles with his ship money and James with the dispensing power. There are principles which override prec- edents."
PERSONNEL AND TENURE OF THE FIRST COURT (1692-1702)
The court was appointed under the act of 1692 creating the court, and continued to sit under successive acts until it was finally approved by the Privy Council in 1699. The court thus created has had a continuous history to the present day and is the oldest tribunal in the country. There were five mem- bers of the court at that time. The chief justice was William Stoughton, who presided over the Witchcraft Court. He was a clergyman of varied virtues and abilities including talents for bigotry, politics, and office-holding. He was a bachelor with an active interest in education. He built the first Stoughton Hall of Harvard College and left the college a substantial legacy. Among his other attainments, we are told that "Mr. Stough- ton prays excellently and makes a notable speech at the open- ing of the court." The other judges of the first court were : Samuel Sewall, Thomas Danforth, at one time President of the Province of Maine; Wait Winthrop, a physician, son of Governor John Winthrop of Connecticut; and John Richards, a merchant. As Washburn says, it appears to have been the
From the portrait in the possession of Grenville Lindall Winthrop, Esq. WAIT WINTHROP
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purpose to embrace as many various callings in life as the number of judges admitted.
The Province Charter did not provide for judicial tenure "during good behavior". That safeguard of judicial independ- ence (which marked the change from the servility of the Stuart judges) was not secured in England until the Act of Settlement of 1701, which did not extend to the colonies. The assemblies of some of the provinces tried at intervals to secure it but were resisted by the Lords of Trade for reasons similar to the reasons for opposing local chancery jurisdiction ; namely, because independent colonial judicial tenure would tend "to lessen that just dependence which the colonies ought to have upon the government of the mother country".
Attention was attracted to this subject throughout the colo- nies in 1735 by the Zenger libel case which grew out of the removal of Chief Justice Morris of New York by the royal governor because the chief justice decided a case adversely to the governor's interests. The absence of the provision for judicial tenure during good behavior as applied to the colonies raised a dramatic controversy later in Massachusetts, when it was planned that judicial salaries should be paid by the Crown, and it was specified by Jefferson as one of the acts of tyranny of George III that, "He has made judges dependent on his will alone for the terms of their offices and the amount and pay- ment of their salaries."
In 1712, the first trained lawyer was appointed judge in the person of Benjamin Lynde, who had studied law at one of the Inns of Court in London. The second trained lawyer, ap- pointed in 1718, was Paul Dudley, son of Governor Joseph Dudley. Both Lynde and Dudley later became chief justices and served for many years.
THE EARLY BAR (1722-1775)
Meanwhile a bar began to develop to meet the needs of the more prosperous province with its growing business. The first name which stands out is that of John Read, who settled in Massachusetts in 1722 after spending the earlier part of his life in Connecticut where he was one of the leading lawyers. Read appears to have been a man of exceptional intelligence
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and force of character, who "reduced the jarring and contra- dictory forms of practice to a system, taught courts the ad- vantages of precedents, and practitioners the value of knowl- edge." He appears to have reduced the habitually "quaint, re- dundant and obscure phraseology" of the English "deeds of conveyance" to shorter and simpler forms, the common use of which he introduced. Copies of some of Read's original writs were preserved and published in the books of precedents as late as 1834.
About 1740 while Read was in active practice, Benjamin Pratt, who was born in Cohasset in 1709, came to the bar. He rose rapidly to a position which is reflected in the enthusi- astic description of him by John Adams, standing on crutches listening to the argument of Otis on the Writs of Assistance. He was appointed Chief Justice of New York in 1761. It is stated that in the severest season of the year, while Pratt was suffering all the pain which the amputation of a leg a few days before could produce, he sat with a law book before him while great drops of sweat were standing on his face and running down his cheeks.
Next to Read, the most influential early lawyer was Jere- miah Gridley. He graduated from Harvard in 1725 and, after a few years of school teaching and the study of theology, turned to the bar and rapidly made such a position for himself that he is sometimes referred to as "The Father of the Bar." He appears to have been one of those wise, able, and kindly old lawyers who gain the respect and affection of the bench and bar, and the influence of whose personality is found throughout the community in which they live.
Jeremiah Gridley represented the Crown at the argument in support of the application for the Writs of Assistance in 1761. As it was in his office that James Otis, Jr., studied law, that case presented the picture of the master on one side and the still more distinguished pupil on the other. Gridley served for twelve years from 1755 as Grand Master of Masons of all North America. Like a number of other leading lawyers in our history, he appears to have been careless of his own inter- ests and in 1767 he died poor at the age of sixty-two.
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CONDITIONS OF LEGAL TRAINING
INFLUENCE OF A TRAINED BAR (1706-1775)
A trained bar must exist before a community can have a trained bench. As there were practically no lawyers at all before 1700, it is not surprising that between 1700 and 1775 few men educated in the law appeared on the highest bench. By the middle of the eighteenth century the needs of the com- munity called an able bar into existence, and the legal problems of government brought forth high talents so that the pre- revolutionary bar stands out as of greater importance than the bench of the period. It was a small bar from our standpoint, -the number of barristers at the most active period just be- fore the Revolution being only about 25 in the whole province.
In the development or "making" of law, the imagination, and what Judge Story called, "powers of generalization" of the bar, contribute far more than the community realizes to the gradual development or "making" of law by the courts and legislatures. Men like Otis, John Adams, and Theophilus Parsons were intellectual pioneers in fields of American con- stitutional law. As an authority on government puts it, "Government is a bigger factor in the country's economic life than the economists have given us to understand," Emer- son in his lecture on the "Uses of Great Men" explains this by saying, "I can not tell what I would know but I have ob- served there are persons who in their character and actions answer questions which I have not skill to put." Some of these early lawyers thought out and expressed the ideas which suited the practical needs of the country; and we are still liv- ing under those ideas to-day because they have "worked."
CONDITIONS OF LEGAL TRAINING (1722-1775)
Surprise is sometimes expressed that the lawyers of the Revolutionary Period were so well-informed in regard to other systems of law, Roman law, European law, International law, etc. The explanation probably is found in the maxim of Otis quoted by Tudor, that "A lawyer ought never to be with- out a volume of natural or public law, or moral philosophy on his table, or in his pocket". Otis studied law in Gridley's office. John Adams tells us that he borrowed Roman law
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books of Gridley, who advised him to read them. This means that men had, or made, more time to read in those days than now. Available literature was more limited and the educated lawyers, like Gridley, Pratt, Otis, Thacher and John Adams, either accumulated libraries or borrowed them and read every- thing they could lay their hands on.
That such men had an intellectual training, of which many lawyers to-day have no conception, in spite of the enormous increase in educational opportunities, is indicated by the state- ment of Otis to his brother, that "Blackstone's 'Commentaries' would have saved him seven years labour poring over and delving in black letter." The first volume of Blackstone was published in England in 1765 and the other three volumes appeared within the next four or five years, so that by the early seventies the enthusiastic study of Blackstone had begun in the colonies. Those who do not read Blackstone to-day may understand better the great interest and influence which his books provided for the early American Bar by pondering the remark of Otis above referred to. Most of the leading lawyers were graduates of Harvard College at that time; they had some education as a basis for their further studies.
Admission to the bar appears to have been regulated by the bar itself. There seem to have been no rules of court to speak of, but some sort of bar association was organized in Suffolk as early as 1761 with a resulting influence as described by John Adams that, "The courts and the bar, instead of scenes of wrangling, chicanery, quibbling, and ill manners, were soon converted to order, decency, truth and candor."
The usual training for admission about this time appears to be reflected in a rule agreed to at a meeting of the barristers and attorneys in Essex County in 1769: "It is agreed that we will not take any young gentlemen to study with us without previously having the consent of the bar of this County; that we will not recommend any persons to be admitted to the Inferior Court as attorneys who have not studied with some barrister three years at least, nor as Attorneys to the Superior Court who have not studied as aforesaid and been admitted at the Inferior Court two years at least nor recommend them as Barristers till they have been through the preceding degrees and been Attorneys at the Superior Court two years at least,
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except those gentlemen who are already admitted in this county as Attorneys at the Superior and Inferior Courts and that these must be subject to this rule so far as is yet to come."
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