USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 4 > Part 5
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Article XXXVIII of the Amendments makes possible the use of voting machines at elections. The need of a consti- tutional amendment on this matter is explained by the fact that the Constitution, in its original form, specifically pro- vided that every member of the house of representatives was to be chosen "by written votes." When voting machines were invented, therefore, there was some doubt as to the legality of their use in this Commonwealth. The house of representa- tives asked the opinion of the Supreme Judicial Court on the matter. The majority of the court held that the use of voting machines would be constitutional [178 Massachusetts Reports, 605 (1905)]. To dispel all doubt in the matter, however, the Thirty-eighth Amendment was adopted, November 7, 1911. This amendment specifically provides that not only voting machines but any other mechanical devices for voting may be used at all elections, provided that the right of secret voting is preserved.
TAXATION AND EMINENT DOMAIN (1911-1915)
The remaining four amendments enlarged the taxation and eminent-domain powers of the legislature. Thus, the Thirty- ninth Amendment, ratified November 7, 1911, permits con- demnation of an excess of land "for the purpose of laying out, widening or relocating highways or streets." This power of eminent domain was still further increased by the Forty-third Amendment, adopted November 2, 1915, em- powering the Commonwealth to take and hold land "for the purpose of relieving congestion of population and providing homes for citizens."
The Forty-first Amendment, approved and ratified by the people November 5, 1912, enlarged the power of taxation by the General Court, giving it "full power and authority ...
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JOHN ADAMS'S DOCUMENT PREVAILS
to prescribe for wild or forest lands such methods of taxation as will develop and conserve the forest resources of the com- monwealth." Finally, the forty-fourth of the Articles of Amendment, which is not only the last of the miscellaneous amendments but also the last of the amendments adopted during the period 1820-1917, and which was ratified Nov- ember 2, 1915, provides the General Court with full power and authority to impose and levy income taxes.
JOHN ADAMS'S DOCUMENT PREVAILS (1929)
No less than forty-four amendments to the Constitution were adopted during the period 1820-1917. Yet it is interest- ing to note that, despite these numerous modifications and alterations, the Constitution of 1780 remained the funda- mental law of the Commonwealth. Whereas the original constitutions in every one of the other States of the Union were superseded during this period by at least one and in some cases by several new documents, Massachusetts continued to live under its first fundamental law. In view of the origin and nature of the Bay State document, this is not surprising. John Adams, the brain-father of the Constitution of 1780, was a political scientist of the highest rank. He therefore knew that a constitution for a free state, to prove enduring, must do more than merely provide for the exercise of all powers of government. It must avoid the pitfall of being too specific, and must confine itself to the declaration of broad and flexible principles, capable of ready adjustment to changing conditions and affording an ample basis for subsequent devel- opment. Knowing this fundamental principle of free-state construction, John Adams built accordingly, and therein lies the secret of the perseverance of the Constitution of 1780, not merely down to 1917 but down to this very day, for that document is still the organic law of the Commonwealth of Massachusetts. In its original form, to be sure, it leaned towards an aristocratic rather than a democratic republic. Because it established a "free government"-or, to use the language of the political scientist, "a republican form of gov- ernment"-and was as elastic and flexible as possible, it was able to grow as the community grew and to change as the
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SELECT BIBLIOGRAPHY
community changed. With the development of democracy in the community and the acceptance of the democratic concept of the ordinary citizen as an individual instinct with civic quality, therefore, we see the steady infusion of democracy into the Constitution; and by the end of the period we find that Massachusetts has peacefully and quietly made the transition from a more or less aristocratic to a definitely democratic republic.
SELECT BIBLIOGRAPHY
BACON, GASPAR G .- "The State Constitution" (ALBERT BUSHNELL HART, editor, Commonwealth History of Massachusetts, 5 vols., N. Y., States History Co., 1927-1929)-See Vol. III, chap. VII.
BULLOCK, ALEXANDER HAMILTON .- "The Centennial of the Massachusetts Constitution" (Am. Antiquarian Society, Proceedings, New Series, Vol. I, pp. 189-225, Worcester, 1882).
DARLING, ARTHUR BURR .- Political Changes in Massachusetts, 1824-1848: a Study of Liberal Movements in Politics (Yale Historical Publica- tions : Miscellany No. 15, New Haven, Yale Univ. Press, 1925).
DAVIS, WILLIAM THOMAS .- The New England States; their Constitutional, Judicial, Educational, Commercial, Professional and Industrial History (4 vols., Boston, Hurd, 1897)-See especially Vol. III.
FROTHINGHAM, LOUIS ADAMS .- A Brief History of the Constitution and Government of Massachusetts (Cambridge, Harvard Univ., 1916).
HOLCOMBE, ARTHUR .- State Government in the United States (N. Y., Macmillan, 1926).
HUBBARD, CLIFFORD CHESLEY .- "Massachusetts State Government 1789- 1820" (ALBERT BUSHNELL HART, editor, Commonwealth History of Massachusetts, 5 vols., N. Y., States History Company, 1927-1929)- See Vol. III, chap. XV.
LORD, ARTHUR .- "The Massachusetts Constitution and the Constitutional Conventions" (Massachusetts Law Quarterly, 1916-1917, Vol. II, pp. 1-32).
MASSACHUSETTS : CONSTITUTIONAL CONVENTION, 1917-1919 .- Bulletin, Nos. 1-37 (2 vols., Boston, 1918-1919).
MASSACHUSETTS : CONSTITUTIONAL CONVENTION, 1917-1919 .- Manual (Bos- ton, 1917).
MORISON, SAMUEL ELIOT .- "A History of the Constitution of Massachu- setts" (MASSACHUSETTS: CONSTITUTIONAL CONVENTION, 1917-1919, Manual, Boston, 1917)-See pp. 1-72. Also published separately.
MORISON, SAMUEL ELIOT .- "The Struggle over the Adoption of the Con- stitution of Massachusetts, 1780" (Mass. Historical Society, Proceed- ings, Vol. L, pp. 350-411, Boston, 1917).
MORISON, SAMUEL ELIOT .- "The Vote of Massachusetts on Summoning a Constitutional Convention, 1776-1916" (Mass. Historical Society, Proceedings, Vol. L, pp. 241-249, Boston, 1917).
ROBINSON, WILLIAM ALEXANDER .- Jeffersonian Democracy in New England (New Haven, Yale Univ. Press, 1916)-See especially chap. VII.
SCHOULER, JAMES .- "The Massachusetts Convention of 1853" (Mass. His- torical Society, Proceedings, Vol. XXXVIII, pp. 30-48, Boston, 1905).
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CHAPTER II
THE JUDICIAL SYSTEM AND THE BAR
(1820-1861)
BY FRANK W. GRINNELL Secretary of the Massachusetts Bar Association
CHANGE OF NAME OF THE COURT
A previous chapter on the "Bench and Bar" included the reorganization of the Superior Court of Judicature in 1777. When the Constitution of Massachusetts was adopted in 1780, the court consisted of William Cushing, Chief Justice, and three Associate Justices, Nathaniel Peaslee Sargent, David Sewall, and James Sullivan. Jedediah Foster, the other associate, had died in the previous year and his place had not yet been filled.
On February 12, 1781, the legislature of the Commonwealth passed an act establishing salaries of a fixed and permanent value for the justices of the "Supreme Judicial Court"- £320 for the Chief Justice and £300 for each of the other Justices-"the sums mentioned to be computed in silver at six shillings and eight pence per ounce, and payable either in silver or bills of public credit equivalent thereto."
On February 16, 1781, the Governor appointed and com- missioned each of the four judges of the Superior Court of Judicature to be "one of the Justices of the Supreme Judicial Court of the Commonwealth of Massachusetts." On the twentieth, these commissions were read at the first term of the Supreme Judicial Court, held pursuant to a Provincial statute of July 19, 1775, at Dedham. On the same day the legislature passed an act empowering the Supreme Judicial Court to
35
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JUDICIAL SYSTEM AND THE BAR
take cognizance of matters heretofore cognizable by the late Superior Court.
The number of justices of this court was not fixed by the legislature nor any additional judge appointed until July 3, 1782, when the legislature passed "an act establishing a Su- preme Judicial Court in this Commonwealth," to consist of a chief justice and four other justices. The whole phraseology of that act is prospective; but the judges already appointed of course continued to hold under it.
COSTUME OF THE COURT
Before and for about twenty-five years after the Revolu- tion, the bar was classified into barristers and attorneys, and both judges and barristers wore wigs and gowns. Their appearance is described by William H. Sumner in his memoir of his father, Judge (later Governor) Increase Sumner, as fol- lows: "The dress of the Judges before the Revolution, and ... continued by them afterwards, was a black silk gown worn over a full black suit, white bands, and a silk bag for the hair. This was worn by the judges in civil causes, and crimin- al trials, excepting those for capital offences. In these they wore scarlet robes with black velvet collars, and cuffs to their large sleeves, and black velvet facings to their robes. .. The use of the robes was discontinued soon after the ap-, pointment of Judge Dawes to the bench (1792). The Judge was a man of small stature, of a most amiable and excellent disposition ... but had a slight impediment in his speech which made him lisp. Dana, the Chief Justice, was also of small stature, but had a very impressive and authoritative manner. The Chief Justice took umbrage at this appoint- ment, on account of what he considered the undignified ap- pearance and utterance of Judge Dawes, and alleged that it was not for his qualifications, but by the influence of his father, who was a member of Gov. Hancock's Council that he was appointed. Soon after Judge Dawes took his seat upon the bench, the Chief Justice came into Court without his robes, while the side Judges had theirs on. Upon their re- tiring to the lobby after the adjournment of the Court, Judge Sumner remonstrated with the Chief Justice against his un- dignified appearance without his robes, and said, 'If you leave
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THE CONSTITUTION
yours off, Chief Justice, we shall ours also; but remember what I say, if people get accustomed to seeing the Judges in a common dress, without their robes, the Court will never be able to resume them.' The Chief Justice, with a remark of great asperity, persisted in his determination, and from that period the robes, which gave such dignity to the bench, were laid aside." The court sat without robes for more than a hundred years, until March 5, 1901, when as a result of a petition from leading members of the bar the present costume was adopted of a simple black silk robe.
THE CONSTITUTION (1779-1780)
Every judge on the court in 1779-1780 was a delegate to the convention which framed the constitution, Chief Justice Cushing representing Scituate; Judge Sargent, Haverhill ; Judge Foster, Brookfield; Judge Sullivan, Groton; and Judge David Sewall, York. Chief Justice Cushing was chosen president of the convention.
ANTISLAVERY DECISION (1783)
As shown in the tenth chapter of Volume III, dealing with social life, slaves were owned, advertised, and sold in Massa- chusetts before and for some years after 1780 and the legis- lature took no action about it. But the court was not afraid to act. The first case of the most far-reaching national importance came before the Massachusetts court in 1783. Nathaniel Jennison was indicted for an assault on Quock Walker. The defendant justified his assault on the ground that Walker was his slave. The case was tried before the whole court, consisting of Chief Justice Cushing, and Justices Sargent, David Sewall, and Increase Sumner. The following extract from the original notebook of Chief Justice Cushing was read before the Massachusetts Historical Society on April 16, 1874, by Chief Justice Horace Gray, who then pro- duced the original notebook which had been loaned to him for the purpose :
"As to the doctrine of slavery and the right of Christians to hold Africans in perpetual servitude, and sell and treat them as we do our horses and cattle, that (it is true) has been
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JUDICIAL SYSTEM AND THE BAR
heretofore countenanced by the Province Laws formerly, but nowhere is it expressly enacted or established. It has been a usage-a usage which took its origin from the practice of some of the European nations, and the regulations of British government respecting the then Colonies, for the benefit of trade and wealth. But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea has taken place with the people of America, more favorable to the natural rights of mankind, and to that natural, innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses-features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound them- selves, sets out with declaring that all men are born free and equal-and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property-and in short is totally repugnant to the idea of being born slaves. This being the case, I think the idea of slavery is inconsistent with our own conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract. . Verdict Guilty."
Thus the court rendered one of the earliest decisions in the country applying a written constitution directly as law, and abolished slavery in Massachusetts as a legalized institution at a time when the legislature was afraid to act.
CONDITIONS OF PRACTICE (1780-1806)
A few years after the adoption of the Constitution, there was a great outcry against the legal profession during the period of Shay's Rebellion, which was to a considerable ex- tent a debtors' rebellion against courts and lawyers. The causes and character of Shay's Rebellion are admirably stated by Albert Farnsworth of Worcester in the Massachusetts Laze Quarterly for February, 1927.
Owing to the general poverty in Worcester County, as well as elsewhere, many men were in jail for small debts. Timo- thy Bigelow, who is described as the most famous soldier of Worcester County in the Revolution, died in jail, where he
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CONDITIONS OF PRACTICE
spent his declining years because of a small debt which he could not pay. Farnsworth says: "The real reason that there was so great an outcry against the legal profession was not so much that the tone of the bar was low or the lawyers venal, as it was the fact that there was in Worcester County as elsewhere a large class of men not professional lawyers who made a business of buying up claims and bringing suits in the inferior courts to collect. They practised largely in the inferior courts and brought these suits there to collect on those small claims which they had bought on speculation. The people hated them, applied the term 'shyster' to them and made no discrimination between high minded lawyers and the unscrupulous speculator. The harsh laws, the fact that a term in jail stared nearly every debtor in the face, the size of the professional income of the lawyer and the act of others in bringing claims into the courts were the main causes of antagonism of the people toward the legal profession."
The curious old-fashioned practice in the Supreme Judicial Court, which was for many years the great trial court of the State, was described by Chief Justice Shaw as follows: "During this period, the court was held for all purposes in each county by a full bench of which three made a quorum, but all were expected to attend. All jury trials were in effect trials at bar and were conducted in the presence of the full court and not less than three were competent to preside at a jury trial. The necessary consequence of this practice was that the members of the court were not always unanimous in their opinions upon the questions of law which the case pre- sented, and this was the more likely to happen when they were compelled by this course of proceedings to form their opinions amid the hurry of a jury trial and without the aid of deliberate argument or reference to authorities. It not unfrequently happened, therefore, that several different members of the court charged the jury and gave them conflicting and contradic- tory opinions upon points of law, and in summing up the case often differed still more widely from each other in their views of the credibility and effect of evidence in its application to the particular case. It followed as almost a necessary conse- quence of this course of proceeding that a verdict must be conclusive. How would it be possible to take exceptions to
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JUDICIAL SYSTEM AND THE BAR
instructions in point of law, where those instructions were various and perhaps contradictory, or to object to a verdict for a misdirection, where, if the directions given by one judge were incorrect, their influence may have been counteracted by those of another which were strictly conformable to law? When so decisive an importance was attributed to the verdict of a jury, and where a jury in effect had the power of con- trolling the court in matters of law, it is natural to believe that every exertion of the parties and counsel would be di- rected to the object of obtaining a verdict. It is not difficult to perceive how strong a temptation this must hold out to litigants, eager in the pursuit and defence of their supposed rights, to resort even to unwarrantable means to influence the jury, and rather to rely on such influence than on the plain rules and principles of law for their success. Such a state of things ... tends to disparage the administration of justice, to promote what is called 'the glorious uncertainty of the law'; to encourage litigation and even dishonest litigation. ... "
REVIEW OF DECISIONS
" ... Where there is anything like an orderly administra- tion of justice some mode of revising a first decision seems to be necessary. . .. Reviews, therefore, were allowed as a matter of right to the losing party under certain restrictions, in all cases where one verdict only had been found against him. On such reviews the whole matter of law and fact was tried and determined by the jury, and their verdict was ulti- mately final.
"In practice, however, there was some departure from this course when the controversy turned principally upon matters of law, and when the parties were desirous of having the separate and deliberate opinion of the Court upon the law; and that was by waiving the right of review and bringing the case before the Court by motion, upon an agreed state of facts, or upon exceptions, or perhaps upon a report, though it is believed that it was not common for a judge to report the case. Such a state of things must have been attended with obvious and extreme inconveniences.
"Still the people, replying apparently upon the maxim that in many counsellors there is safety, manifested an extreme
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THEODORE SEDGWICK
reluctance to having their causes tried by any other than a full bench. But by the increase of population and business it became quite impossible for the whole Court to travel into each county in Massachusetts and Maine and despatch the public business with reasonable promptness, and in conse- quence there was a great accumulation of unfinished business and great delay in the final disposition of causes.
"To provide for this exigency ... the legislature adopted the expedient of enlarging the number of judges to seven, so as to form two quorums, and thus enable the Court, with at least three judges, to sit at two places at the same time."
In 1802, Judge Dawes resigned from the Supreme Court to accept, contemporaneously, the vacant offices of Judge of Probate and Judge of the Municipal Court in Suffolk County, a criminal court created as an experiment for jury trials be- fore a single judge. He presided in the latter court just twenty years.
This experiment succeeded and in 1804 a committee, com- posed of one member of the legislature from each county, agreed to report that one judge of the Supreme Judicial Court should be authorized to remain in a county, to try questions of fact after the business requiring three judges should be disposed of, and should then join the judges in the next county. A single year was sufficient to satisfy the whole Commonwealth of the utility of such a system.
JUDGE THEODORE SEDGWICK (1802-1813)
Theodore Sedgwick was appointed to the vacancy caused by the resignation of Judge Dawes. Judge Sedgwick was a national figure. The court at once began to feel and show the effect of his personality and ability. At the time of his ap- pointment, Chief Justice Dana and Judge Paine were well along in years. Judge Bradbury was soon stricken with the . illness which finally caused his removal. Judge Paine ap- pears to have been quite deaf and irritable at this time, and his manners particularly, and perhaps those of others, were "crusty." The traditional story is that Fisher Ames, who was a sensitive person, wrote to Christopher Gore: "I went into court, to enjoy the soothing civilities of Judge Ursa Major, R. T. Paine"; and after an uncomfortable scene Ames
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JUDICIAL SYSTEM AND THE BAR
made the remark, which became current at the bar, that "a lawyer should go into court with a club in one hand and a speaking trumpet in the other." The general atmosphere in the court room appears to have been charged with asperity.
In his address in 1824, William Sullivan said: "The digni- fied complaisance, which existed before the Revolution, and the gentlemanly courtesy, which we have witnessed for many years, were . .. unknown. It should be remembered with respect and gratitude, that when Judge Sedgwick appeared on the bench, he successfully strove to banish this unnecessary deportment. He endeavored, also, to prevent the sparring, at that time very common at the bar. Mr. Parsons and the Attorney General (James Sullivan) were often opposing counsel; and almost as often personal opponents, so far as a keen encounter of wits could make them so."
Harrison Gray Otis was in many ways one of the ablest and most popular leaders of his time in Massachusetts, at the bar, in society, and in politics. He was Speaker of the House of Representatives from 1803 to 1805, and President of the Senate from 1808 to 1811. Various legislative changes in regard to the judiciary which preceded the appointment of Chief Justice Parsons in 1806 were largely due to Sedgwick and Otis.
CHIEF JUSTICE THEOPHILUS PARSONS (1778-1813)
In 1806 Chief Justice Dana resigned, and Theophilus Par- sons was appointed Chief Justice. Next to John Adams, Parsons had the most constructive mind in Massachusetts dur- ing the period from 1778 to 1813, and he had also an adminis- trative mind and capacity which Adams noticeably lacked. Judge Story said: "Parsons was a man who belonged not to a generation, but to a century. The class of men of which he was a member is an extremely small one."
Theophilus Parsons was born in Byfield in February, 1750. As shown in chapter vii of Volume III, Parsons first became conspicuous at the age of twenty-eight, as the leading mind in the convention of delegates in Essex County, which met at Ipswich in 1778 and published their objections to the draft constitution of 1778-known as the "Essex Result." After that, he rapidly became and remained until his death the leader
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INNOVATIONS BY PARSONS
of the bar and one of the leaders of the Federalists in Massa- chusetts.
Parsons was a delegate from Newburyport to the Conven- tion of 1780 and a delegate to the Federal Convention of 1788. His work there was described by Judge Parker, subse- quently Chief Justice, as follows: "I, then a young man, was an anxious spectator of these doings. Parsons appeared to me the master-spirit of that assembly."
Parsons appears to have been the draftsman of the amend- ments, proposed by Hancock and adopted as suggestions from Massachusetts to the first congress, which formed the basis of the first ten amendments of the Federal Constitution; and their adoption in this way, as suggestions rather than as condi- tions, was the act which secured ratification of the Constitution.
Theophilus Parsons "was about five feet ten inches in height, somewhat corpulent, and of heavy appearance. His forehead was high and smooth, he wore a reddish wig ( for he was bald at an early age), which was rarely placed upon his head properly. His mind was well adjusted, his wig never. He generally wore a bandanna kerchief about his neck to protect it from cold winds. His eye was clear, sharp, keen, and deep set in his head. It looked through and through you. ... It was a glance that few men could bear to have steadily fixed upon them.
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