USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 4 > Part 6
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55
"He was not very grave. He had an abundant and inex- haustible wit. ...
"Parsons was not merely a lawyer. He read everything. He was an excellent mathematician and a good scholar in the classics. He was fond of novels, and, like Chief Justice Marshall, would spend the night over a romance, and the next day would read metaphysics with equal delight."
INNOVATIONS BY PARSONS (1806-1813)
When Chief Justice Dana resigned, Judge Parker, from his knowledge of practice in Maine confirmed by a year's ex- perience as a judge, was convinced that conditions existed which demanded reform and required an entirely new man. He was holding court in Essex County when he learned that Chief Justice Dana intended to resign. He rode over to
44 JUDICIAL SYSTEM AND THE BAR
Marblehead and called at the home of Judge Sewall, who thought as he did. It was determined that Sewall should go the next day to Boston and represent to Governor Strong that, if Parsons could be appointed at once without consulting him, every exertion would be made to persuade him to accept the office, even if he took it for a short time only. The appointment was made at once.
Parsons at once created a disturbance at the bar by des- patching business in a manner unknown before. He inter- rupted counsel, checked their excessively long arguments and unnecessary evidence, insisted on good pleading, and prac- tically turned his court into a law school for both the younger and the older members of the bar. While he began the modern methods of despatching business and applied Lord Lyndhurst's view that "it was the business of a judge to make it disagreeable for counsel to talk nonsense," at first he lacked some of the discretion of Lyndhurst and showed faults as a judge which might be expected in so dominant a person- ality, who went on the bench at the age of fifty-six after a life of vigorous controversy as an advocate.
Parsons as a judge needed some of the discipline which he enforced on the bar, and he received it at the hands of the man who ranked next to him in the leadership of the bar- Samuel Dexter. On one occasion, when stopped in argument by the Chief Justice, Dexter remarked: "Your Honor did not argue your own cases in the way that you require us to." "Certainly not," was the reply; "but that was the judge's fault, not mine." On another occasion, after a day's struggles with the Chief Justice, Dexter produced a small book from his pocket and, addressing the court very solemnly, asked per- mission to read a few pages. The Chief Justice, preparing to take notes, asked the name of the book; whereupon Dexter replied that it was Lord Bacon's Civil and Moral Essays. He then read a passage from the essay on "Judicature," which says, among other things: "An over-speaking judge is no well-tuned cymbal." Dexter then proceeded with his argu- ment without any further interruption.
In the country districts, for some time the lawyers sub- mitted their cases unreservedly, without argument, so great was their confidence in his ability as a lawyer. Often they
45
SALARIES OF THE COURT
wished him to take the whole case into his hands for disposal, because they felt unequal to discussing it adequately before him. One lawyer writes that he knew him to have done this many times, but with great reluctance.
Parsons published practically nothing except his reported opinions, but much of his work found its way into the books of other men for the use of the bar. After his death his col- lected opinions were published in New York, to serve as a textbook, and his forms were used as precedents.
Prior to 1805 judges had not been in the habit of writing out their decisions. If they had done so, there was no regular reporter to compile them for future reference as precedents. The first volume of Massachusetts Reports of Supreme Court Decisions appeared in 1805. It was fortunate that we had so able a man as Parsons on the bench when the reporting of decisions began, for he started the reports with opinions which commanded respect and steadied the course of the law. The character of his public service on the bench is emphasized when we remember that he gave up an income of $10,000 (a large sum in those days and probably the largest income at the bar) to accept a salary of $1,250.
DEVELOPMENT OF FIXED SALARIES FOR THE COURT (1831)
In Judge Story's brief autobiography, written in a private letter to his son in 1831, he said: "There is one measure . . . which ... originated with me and which, without my .. . support against the wishes of my friends, would not have passed. ... The act of 1806 raised the salaries of the judges of the Supreme Court to $2,400. and of the chief justice [to] $2,500. . . Before that . .. the salary was for the chief justice $1,250 (375 pounds) and for the other judges $1,1662/3, and the judges annually petitioned the legislature for an annual grant, which was usually given, of about $600. This kept them in a perpetual state of dependence upon the legislature, and contributed in no small degree to the retard- ation of any solid growth of our jurisprudence. All the judges of the Supreme Court were Federalists; and this constituted with many of my political friends a decided objection to the measure, as it gave independence to their enemies. I believed the measure right; and stood forth as its advocate at a time when it was unpopular even with many of our political op-
46
JUDICIAL SYSTEM AND THE BAR
ponents. It was carried. In June, 1809, finding that the salary was still inadequate, and having learned from Mr. Chief Justice Parsons that he should be compelled to resign unless it was raised, I made another effort. ... A favorable report having been made, in the subsequent debate I was left by all those who were its friends to conduct and, indeed, to lead the debate. It encountered great opposition from several quarters, and I bore the brunt and burden of the day.
"It was triumphant; and the salaries fixed by the Act of June, 1809, for the chief justice $3,500, and for the associates $3,000, still remain [in 1831]. . . The measure has secured to [Massachusetts] the services of some of her ablest lawyers; and in my humble judgment has contributed more to give permanence to her institutions, dignity to her jurisprudence, and steadiness to her prosperity, than any one single measure of the state during the last forty years. This achievement, however, cost me some political friendships; and it was a long time before I recovered the popularity, which was lost by a measure so odious to some of the Republican leaders of that day."
An illustration of the prejudice which Story faced and fought at this time appears in an entry in the diary of William Bentley, in 1803, quoted in Robinson's Jeffersonian Democracy in New England, pages 117, 118.
"CODIFICATION FEVER" IN MASSACHUSETTS (1800-1840)
In Dean Pound's articles on "The Place of Judge Story in the Making of American Law," he refers to the "inclinations toward French law" in this country: "Men's minds had been fascinated by the Code Napoleon and in New York, especially, as far back as 1809 we meet with more or less clamor for a civil code on French lines. ... The [European] jurists of the eighteenth century conceived it to be their task to discover the first principles of law inherent in nature, to deduce a system from them, and thus to furnish the legislator a model code, the judge a touchstone of sound law and the citizen an infallible guide to conduct. They had no doubt that a com- plete code was possible which once for all should provide in advance the one right decision for every possible controversy. Lay discussions of American law in the first quarter of the
From the original by Stuart
Courtesy of Fogg Art Museum
JOSEPH STORY
47
CODIFICATION FEVER
nineteenth century abound in demands for an American Code."
Governor Gerry agitated the subject in a message to the legislature in 1812. Few law books were accessible, for the War of 1812 stopped the importation of English law books. Dane's Abridgment and Digest of American Law, the prep- aration of which he began in 1800, was not finished until 1826, and the first volume did not appear until 1823. There had been various compilations, but no adequate consolidated revision of the Massachusetts statutes. The "sources of law" were not accessible.
The North American Review began to appear in 1815, a magazine planned to appeal to all professions and to the public generally. For the next twenty years its pages contained a succession of articles in favor of general codification, a num- ber of which were written anonymously by Judge Story, who was in favor of the idea to a considerable extent, although his later books were destined to check the movement.
On the other hand, Chief Justice Parker and the bar in general were opposed to it. The American Jurist, one of the first law magazines, was founded in 1829 with Hon. Willard Phillips as editor, soon after succeeded by Charles Sumner, George S. Hillard and Luther Cushing, all apparently strongly influenced in favor of codification.
In 1832 Governor Lincoln appointed a commission to pre- pare the first general revision of the Massachusetts statutes. This commission consisted of Hon. Charles Jackson, Ashur Stearns, and George Ashman. Ashman died before the re- port and was succeeded by John Pickering, a pronounced pro- ponent of codification.
The commission reported in 1835 a revision which was so well done that it was accepted in substance, and it forms a landmark in the history of Massachusetts law. In the intro- duction to their report they said: "It may, perhaps, be a subject of observation with the legislature, that the commis- sioners have not attempted to embody in the present revision the principles of the common law, any further than has here- tofore been gradually done at different periods of our legis- lation. This has not been the result of inattention or accident ; but the commissioners, on consideration, came to the conclu- sion that the questionable utility of putting into the form of a positive and unbending text, numerous principles of the
48
JUDICIAL SYSTEM AND THE BAR
common law, which are definitely settled and well known, was not sufficient to outweigh the advantages of leaving them to be applied, by the courts, as principles of common law, whenever the occurrence of cases should require it.
"It has been remarked by distinguished American jurists, that the common law is peculiarly well fitted to the rapidly ad- vancing state of our country, because it possesses in an eminent degree the capacity of adapting itself to the gradual progress of improvement among us; and that this accom- modating principle, which pervades it, will adjust itself to every degree and species of improvement that may be sug- gested by practice, commerce, observation, study, or refinement.
"From these general considerations, which it is unnecessary to follow out in detail, it has been thought expedient to leave those important principles as they at present exist, rather than to attempt to incorporate them into the inflexible text of a written code."
In 1836 Governor Everett eloquently advocated codifica- tion of the common law in his inaugural address. The legis- lative committee, to whom the subject was referred, was so impressed with the idea that they thought the common law could be so condensed into "concise, chaste and elegant language in a volume or two" that it could be used in the schools and constitute the book of reading and study for the highest class.
A special commission, with Judge Story as chairman, was created in 1836 and reported the following year in favor of partial codification, including a codification of the criminal law. Governor Everett again expressed the belief that Massachusetts would lead the world in this great codifying movement.
In the midst of all this discussion, Lemuel Shaw was ap- pointed Chief Justice of the Supreme Judicial Court by Gov- ernor Lincoln in 1830. It seems a reasonable conjecture that one of the arguments used by Daniel Webster, when he went to urge Shaw, in the midst of a cloud of tobacco smoke, to accept the chief-justiceship, was that Shaw had the ability to explain the principles of the common law in such a way as to counteract the enthusiasm for codification, and that it was his duty to do it. The sense of perspective of the two men
49
HARVARD LAW SCHOOL
adds force to this conjecture, as does also a brief reference to the structure of the common law in the opinion of Chief Justice Shaw in Commonwealth v. Temple (14 Gray at p. 74), written a few months before the end of his thirtieth year of service in 1860.
In 1829, as pointed out elsewhere, Nathan Dane made it possible for Judge Story to begin to write his law books. Between 1832 and 1845 he published the following textbooks : Commentaries on the Law of Bailments (1832) ; Commen- taries on the Constitution (1833) ; Conflict of Laws (1834) ; Equity Jurisprudence (1836) ; Equity Pleading, (1838) ; Commentaries on the Law of Agency (1839) ; The Law of Partnership (1841) ; Bills of Exchange (1843) ; Promissory Notes (1845).
These authoritative books, by a master of his profession, trained both bench and bar more thoroughly in legal principles, expanding to the needs of changing conditions. The codify- ing movement shifted to New York, and Massachusetts re- mained a common law State.
FOUNDING OF THE HARVARD LAW SCHOOL (1817-1845)
Law schools in the modern sense were unknown until the middle of the nineteenth century. Men studied law as students in lawyers' offices. Chancellor Wythe had lectured on law at William and Mary College at the end of the eighteenth century, and Judge Tapping Reeve in Connecticut had turned his office into a law school by giving lectures. But in 1817 Harvard began the experiment of a university law school by creating a professorship with funds from a legacy left by Isaac Royall in the eighteenth century, and securing Chief Justice Isaac Parker as the first professor. Shortly afterwards, Asahel Stearns, district attorney of Suffolk County, was added to the faculty. The school amounted to little, however, until 1829, when Nathan Dane devoted the proceeds of his Abridgment to securing Judge Story as a professor, with an opportunity both to lecture and to write law books. He also gave the money to build "Dane Hall," which was the home of the school for about fifty years. By these generous and farsighted acts Dane exerted an incalcul- able influence on the law not only of Massachusetts but of
50
JUDICIAL SYSTEM AND THE BAR
the entire country, for Judge Story's position as a judge of the Supreme Court of the United States not only attracted students to his lectures and gave the school a standing that it could not have secured in other ways but, more important, the encouragement to Story to write resulted in the series of textbooks, referred to elsewhere, on the leading branches of our law which guided the courts and bar for the next half century and are still in common use. Judge Story lectured until his death in 1845.
Chief Justice Joel Parker of New Hampshire, Simon Greenleaf, Theophilus Parsons and, later, Governor Emory Washburn continued the school by the system of lectures, until in the early seventies President Eliot chose as dean Christopher Columbus Langdell, who by introducing the "case" method of teaching law students to think began the development of the modern school and opened the way for the great law schools of the country to take their present place of growing influence in the development of American law.
JUDGE CHARLES JACKSON (1813-1836)
Charles Jackson, the grandfather of Justice Oliver Wendell Holmes, was "a legal genius" who is too little known to the present generation. He was born in Newburyport. After graduating from Harvard College, he studied law in the of- fice of Theophilus Parsons and was appointed from an active practice to the Supreme Judicial Court in 1813, where he served with distinction for ten years until obliged to resign because of his health. Elected as a representative from Bos- ton to the Constitutional Convention of 1820, he convinced that body that constitutional amendments, instead of being grouped together, should be submitted so that they could be voted on separately by the people because, as he said, only by so doing could the delegates be "fair to their constituents."
This standard of fairness in dealing with the electorate, which he established, has had a far-reaching influence, and it was largely because the Convention of 1853 departed from this standard that the work of that body was rejected by the voters. Judge Jackson's work as chairman of the committee which made the first revision of the statutes in 1835-1836 is mentioned elsewhere. While still at the bar, he was the mov-
51
WHITE MURDER CASE
ing spirit in founding the Social Law Library, which has since become one of the leading law libraries in the country.
He was not only a judge of the first rank but a great legis- lative draftsman, whose work, combined with the opinions of Chief Justice Shaw and the law books of Judge Story, helped to stabilize the law of Massachusetts at a critical period in its history. The notes of the commissioners on the Revised Statutes of 1836 still form one of the most useful of our law books.
DANIEL WEBSTER AND THE WHITE MURDER CASE (1830)
George Ticknor Curtis said: "Nothing was more remark- able in Mr. Webster than the manner in which he kept distinct, in his own person, the characters of the statesman and the lawyer. ... It was always observed of him, by his contemporaries of the bar, that he brought into the forum neither the habits of mind, the modes of reasoning, nor the kinds of eloquence, which belong to the discussions of states- men; nor did he carry into the Senate the peculiarities of reasoning and analysis and proof which are alone effective in judicial tribunals. In the latter, his great renown as a pub- lic man no doubt helped to fasten the attention of judges and jurymen, and sometimes aided the ascendancy which his in- tellect enabled him to obtain over the intellects of those he addressed. But Mr. Webster was generally encountered at the bar by men who were able to overcome any influence of this kind, by rendering it necessary for him to exert all his powers in the mode which the forensic habit demands, and which is peculiar to the discussions in courts of justice. His ability to do so was never affected by the habits acquired in legislative bodies."
His powers in this respect were shown in the Knapp trials, growing out of the White murder in Salem in 1830.
Joseph White, one of the wealthiest and most respectable citizens of Salem, was brutally murdered in his bed on April 7 of that year. Some weeks later, Captain Joseph Knapp, a respectable shipmaster and merchant, received a mysterious letter from a man in prison in Maine, which must have been intended for his son Joseph J. Knapp, Jr., saying that he knew what his brother Franklin had been doing for him and
52
JUDICIAL SYSTEM AND THE BAR
that he was extravagant in paying one thousand dollars to the person who would execute the business for him. When he showed the letter to his several sons, Joseph, Jr., after a series of stupid actions, was arrested and confessed that he, through his brother John Francis, had hired Richard Crown- inshield, a desperate character, to commit the murder. Knapp's wife was a niece of the murdered man and Knapp mistakenly thought that she would inherit a large part of White's property if White died. Richard Crowninshield, his brother George Crowninshield, and John Francis Knapp were also arrested.
The situation is described by Curtis as follows: "The three were, therefore, concerned in a joint conspiracy to com- pass the death of Captain White, and, after the confession of Joseph, the details of this conspiracy, and the part played in it by each of them, became known to the Attorney-General, who obtained the confession by promising immunity to Joseph, on condition that, when brought into court as a witness for the State he should testify fully and truly. But, after the suicide of Crowninshield, it became necessary to convict Frank Knapp as a principal in the murder; for, as the law of Massa- chusetts then stood, no one could be convicted as an accessory until there had been a conviction of some one as principal. But, when it was found that Frank was to be put on trial as a principal, Joseph retracted his engagement with the At- torney-General, and refused to testify. This was done upon the calculation that, as Crowninshield alone had entered the house, the prosecution would not be able to prove that Frank's participation amounted to that of a principal in the murder. He was no nearer to the house, at any time, than a distance of three or four hundred feet; and, although he was in the street at the rear of the house, at some time during the night, and at a position from which he could see when all the lights were extinguished, it was very doubtful if the prosecution could show, by independent testimony, whether he was there before Crowninshield entered, or while the latter was within the house, or when he came out. In order to convict Frank as a principal, it was necessary for the prosecution to con- vince the jury that he was present in the street at the time of the murder, aiding and abetting the person who dealt the fatal blow. To produce this conviction, Mr. Webster put
53
WHITE MURDER CASE
forth all his strength, and it was all needed. No one of less ability in the handling of evidence could have succeeded in satisfying the jury that Frank Knapp was present at the murder for the purpose of rendering aid, if necessary. Mr. Webster's arguments rested mainly on two positions: first, that there was a conspiracy to murder the deceased, and that Frank Knapp was one of the conspirators; second, that, as a conspirator, he was present in the street, by agreement, to countenance and aid the perpetrator. This would make him a principal. The force of Mr. Webster's argument convinced the jury that Frank was, in this sense, present at the murder, But the fact was otherwise; and if Joseph Knapp had not refused to testify, and had told the whole truth, neither of them would have suffered for the murder. It would then have appeared that, at the time Crowninshield started to commit the murder, he told Frank to go home and go to bed; that Frank did so; but that he afterward rose, from anxiety to know what had been done, went toward Captain White's house, and met Crowninshield, after the murder had been committed. If Frank had not been convicted as principal, Joseph could not have been convicted as accessory.
"On the trial of Joseph Knapp, as accessory before the fact, Mr. Webster's task was of an entirely different nature. Having refused to testify on the trial of his brother, Joseph had forfeited his right to the immunity promised him by the Attorney-General, and was, therefore, rightfully put upon trial himself. But he could not be convicted without the use of the confession which he had made under the promise of favor. Mr. Webster had to satisfy the court that the con- fession was admissible, although made under these circum- stances. He argued that, as against himself, the prisoner's confession was admissible, because made freely and volun- tarily; for, having obtained the Attorney-General's promise of immunity before he made the confession, he had no motive falsely to accuse himself, although he might have a motive falsely to accuse his accomplices. The court permitted the confession to go to the jury. Mr. Webster then had to con- vince the jury that the confession was creditable. The prisoner was convicted."
As a result of this case, a statute was passed changing the common-law rule and making it unnecessary to convict the
54
JUDICIAL SYSTEM AND THE BAR
person who committed a felony in order to convict an ac- cessory, before or after the fact, as a principal in the affair.
JUDGE LEMUEL SHAW (1781-1861)
Lemuel Shaw was born in the West Parish of Barnstable in 1781. After being graduated from Harvard College, he was admitted to the bar in 1804 and began practice in Boston. His practice gradually increased and he served in the city government, the Constitutional Convention of 1820 and the State legislature, constantly impressing the bar and the com- munity as a man of exceptionally sound, balanced judgment and strong character.
As a member of the house of representatives in 1829, Shaw was appointed a member of the committee to conduct the im- peachment proceedings against Judge Prescott, of the Mid- dlesex probate court. Pitted against that of Webster, who defended Judge Prescott, Shaw's argument made a great impression and has not yet lost its force in the description of standards of judicial conduct. Judge Prescott was convicted on two counts and removed from the bench.
In 1830, when Chief Justice Parker died, it was Webster who appears to have argued Shaw into accepting the appoint- ment as Chief Justice, which he at first declined. Webster is quoted as considering his efforts in persuading Shaw to accept as one of his greatest public services. At all events, in the next thirty years Chief Justice Shaw acquired, and still holds, a position in the legal history of Massachusetts like that held by Chief Justice Marshall in the legal history of the nation; and with the assistance of exceptionally able asso- ciates, among whom were Samuel Putnam, Samuel S. Wilde, Marcus Morton, Samuel Hubbard, and Charles A. Dewey, the Massachusetts court became one of the most respected tribunals in the civilized world.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.