USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 4 > Part 7
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During that period, Massachusetts was changing from a shipping to a manufacturing State, and many adjustments of the law to modern business conditions were needed. The court's grasp and exposition of common principles contrib- uted greatly to the public security.
In 1843, the legislature reduced the salaries of all State officers, including the judges, and the salary of the Chief
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Justice, which had been $3,500 for many years, was reduced by $500. He felt so strongly about this measure that he refused to accept any salary, and in 1844 the old salaries were restored.
While it is too long to quote, Rufus Choate's description of a judge, in his speech in the Constitutional Convention of 1853, was generally recognized as inspired by his estimate of the Chief Justice. He closed his picture with the words: "Give the community such a judge and I care little who makes the rest of the constitution or what party administers it. It will be a free government, I know."
PETER OXENBRIDGE THACHER AND THE MUNICIPAL COURT OF BOSTON (1823-1843)
Thacher's Criminal Cases is still a valuable authority on matters of criminal law and practice. It contains the reports of important cases heard by Judge Thacher in the court which was created, as already explained, to hear jury trials of criminal cases with one judge.
Judge Thacher succeeded Judge Dawes and became a judicial leader in his field. Massachusetts is commonly re- ferred to as the "home of the probation system" because the first statutory provision for probation officers in the district courts was made by the Massachusetts legislature in the seventies. But the modern practice of probation as part of the "equitable development of the criminal law" was begun by Judge Thacher as a judicial experiment in the administra- tion of justice at least forty years before the statute of the seventies, which merely adopted his practice with the addition of paid probation officers as part of the equipment of a modern criminal court.
Judge Thacher's practice was merely a modern adaptation of old common-law ideas which had found expression in the process known as "binding to good behavior" and other cruder and more arbitrary practices.
PELEG W. CHANDLER (1839)
Chandler was one of the many strong men born in New Hampshire who have become leading men at the Massachu-
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setts bar. Judge Hoar, a very keen judge of men, regarded him as the most effective jury lawyer of his day, with the exception of Rufus Choate.
Chandler was for a considerable period city solicitor of Boston; and while there, in Judge Hoar's opinion, he was an exceptionally wise adviser in the background of the entire city government.
In 1839, while a comparatively young man, he founded and for some years edited The Law Reporter, which contained reports of important cases from different States and profes- sional articles. It was the forerunner of the modern "re- porter" system by which the bar of the country is kept informed.
TRIAL OF PROFESSOR WEBSTER (1849)
In 1849 the community was startled by the arrest of Professor John W. Webster, of the Harvard Medical School, for the murder of Dr. Parkman, a well-known and respected Bostonian. The arrest followed the finding of parts of a human body in a refuse vault by the janitor of the school.
The case was tried before four justices of the Supreme Judicial Court, with Chief Justice Shaw presiding. Attorney- General Clifford and George Bemis represented the Common- wealth, and Hon. Pliny Merrick, later a justice of the Supreme Judicial Court, and Edward D. Sohier appeared for the prisoner. Because of the prominent position of the prisoner and of Dr. Parkman, the trial attracted attention throughout the country.
The evidence in the case was entirely circumstantial. One of the most difficult facts for the government to prove was the death of Dr. Parkman or what the lawyers call "the corpus delicti"; for it is necessary, of course, in order to prove a man guilty of murder, that it should first be proved that somebody was killed. Reputable witnesses testified that they had seen Dr. Parkman on the street after the date when he was alleged to have been killed. Their testimony was perfectly honest and, as it turned out, was simply an illustration of mistaken memory as to the time of seeing him.
Without going into the details of the case, it was finally clinched by the production of a jaw bone and the identifica-
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tion by Dr. Parkman's dentist of the gold fillings which he had placed in Dr. Parkman's teeth.
Chief Justice Shaw performed the painful duty of presid- ing at the trial of a personal friend with the greatest dignity and impartiality. In a charge to the jury which has been cited ever since he expounded the law and, after the verdict of guilty, he performed the still more painful judicial duty of imposing the sentence of death on a man who had been his friend. In view of the fact that the evidence was wholly circumstantial and because of the common popular distrust of such evidence, the Chief Justice was vehemently abused, both by personal letters and newspaper comments in different parts of the country. He was called a "judicial tyrant" and was compared with "the bloody Jeffries." But when Profes- sor Webster finally confessed before his execution, the tone of public comment changed and it was realized that a great magistrate had performed judicial functions, of the most distressing character, according to the highest standards of the Commonwealth.
The facts were that Webster owed Parkman money; that Dr. Parkman went to the Medical School to inquire of Web- ster about payment, on a Saturday afternoon when there was no one in the school; that he met Webster on the doorsteps and, in the course of a heated conversation, Webster lost his temper and struck Parkman with his cane so that he died. Instead of calling for assistance and acknowledging what he had done, a course which in all probability would have saved Webster's life, he carried the body into the school, and dis- sected and disposed of it, as he thought, beyond the chance of discovery or recognition, and went about his life as if nothing had happened. This cold-blooded proceeding eventually resulted in his execution.
PRACTICE ACT OF 1851
The importance of the common-law system of special plead- ing as a training for lawyers to think out their cases carefully before presenting them to the court was emphasized by the work of Chief Justice Parsons. During the first half of the nineteenth century an exceptionally able bar developed in Massachusetts; but with the growth in numbers of the bar
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and the increasing variety of modern business, the technicali- ties of common-law pleading caused more and more criticism until about 1850, when a commission to revise the practice act was appointed.
This consisted of Benjamin R. Curtis, chairman, Reuben A. Chapman (later Chief Justice of Massachusetts), and Nathaniel J. Lord, a leader of the Essex County bar. This commission reported a practice that retained the simple outlines of the common-law system, with most of the technicalities eliminated; and the act in substance has proved satisfactory and is still the basis of Massachusetts practice.
One passage in the report of the commission, however, affords a striking illustration of the influence of traditional habits of thought upon even the ablest lawyers, for they re- ported against the proposal to allow the parties to a civil action to testify. Their reason was that "we do not think it for the interests of the public morals that parties should be placed in such situations." Accordingly, the common-law rule, based on the fear of inviting perjury, remained, to exclude from the witness stand the parties who, in many cases, knew most about the facts, until 1856, when the legislature dis- regarded the apprehensions of lawyers and passed the act allowing parties to testify. Much injustice must have been prevented by this change. Certainly no one today would think of returning to the old rule because of moral apprehen- sions.
Two CONSTITUTIONAL CONVENTIONS AND THE COURTS (1780-1853)
The reasons for the provisions in the Constitution of 1780 that judges should be appointed by the Governor and Council to hold office "during good behavior," in order to provide judges as "free, impartial and independent as the lot of humanity will admit," were explained in our previous chap- ter in Volume III. As a supplement to this tenure, which protected the administration of justice against the political domination of "King Majority" as the similar provision in England had protected justice there from the domination of the Crown, our Constitution contained a provision not only for impeachment for "misconduct and maladministration"
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but also for removal of judges by the Governor and Council upon address of both houses of the legislature. This differed from impeachment, because impeachment involved a judicial trial before the senate, specially sworn and sitting as a court.
Removal was made a purely legislative proceeding which did not require the specification of reasons, although as a matter of practice the Massachusetts legislature has always provided for hearings. Several justices of the peace were thus removed prior to 1800. Judge Bradbury was removed from the Supreme Judicial Court for incurable illness in 1803.
When the Constitutional Convention of 1820 met, many leading members of the bar, including Story, Shaw, Webster, Jackson, and others, felt that this power of legislative removal weakened the security of the judges' tenure and thus threat- ened their independence. Accordingly, an amendment was proposed requiring a two-thirds vote of two houses upon address for removal. But Levi Lincoln, the younger, who was later a judge of the Supreme Judicial Court for a year or two and then Governor of the State for ten consecutive terms, with farsighted judgment succeeded in defeating the proposal in the convention, on the ground that the legislature could be trusted not to exercise the power without sufficient cause and that the existence of the power was desirable.
Webster put through another amendment, providing that no address for removal should be passed until the causes were first stated, entered on the journal, and a copy served upon the judge that he might be given a hearing. This amend- ment was rejected by the people; but the practice of the legis- lature has always followed in substance Webster's sugges- tions, on the ground that it was a fair method of proceeding.
When the Constitutional Convention of 1853 met, there was a strong movement throughout the country in favor of electing judges and shortening their terms of office. This idea gained such support in that convention for political reasons that, while the elective method was rejected, Benjamin F. Butler, then a young man, Hallett, and some of the leaders of the convention-including Henry Wilson, George S. Bout- well and others-put through a proposal for ten-year terms for judges. It has been generally admitted, even by the sup- porters of this provision, that this proposal more than any
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other led to the rejection of the entire work of the convention by the people. Politicians in that body found that they had made a mistake, and Massachusetts stuck to her principles instead of following the lead of other States.
In the debate on this question, Richard H. Dana, Rufus Choate, and others performed lasting service. Great advo- cates understand better than most men the value and import- ance of having men on the bench who are mentally and morally able to resist both the temptations of expediency and the ablest advocates who plead cases before them.
RUFUS CHOATE ON APPOINTMENT OF JUDGES (1853)
While space does not permit a detailed account of Rufus Choate, the Massachusetts lawyer who still attracts more interest than any other, with the exception of Webster, a pic- ture of him in action on this occasion of his greatest public service is always interesting: "Any one who has lived in New England knows how wiltingly oppressive a July day can be. It was like a fiery furnace in the Hall of Represen- tatives where the sessions were being held. No breath of air was stirring except from the waving palm-leaf fans of the delegates ; yet Rufus Choate, suffering from illness and look- ing utterly wretched, rose and delivered an address which, in its reported form, covers twenty-six large pages in Brown's Life and took more than two hours to speak. On that day he was provided with a bottle of bay rum with which he fre- quently bathed his head, and, when he gesticulated violently, the drops were thrown on his neighbors. . . .
"It was, broadly considered, a carefully built argument against the election of judges by popular vote and against any limitation of their tenure of office. Opening with a descrip- tion of the ideal judge as a man not only learned in the law but fair-minded and possessing the confidence of the com- munity, he went on to prove that the existing system of executive appointment during good behavior was likely, on the whole, to be better than any other. He examined care- fully the experience of British and American courts. He pointed out that the principle of executive appointment had worked well in Massachusetts, and that there was no impera- tive demand for a change. And then he ended with a perora-
From the photograph by Hawes
Courtesy of Halliday Historic Photograph Co.
RUFUS CHOATE
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MASSACHUSETTS FEDERAL JUDGES
tion, the imagery for which was drawn from remembrances of his boyhood days on the Essex County coast: 'Sir, the people of Massachusetts have two traits of character,-just as our political system in which that character is shown forth has two great ends. They love liberty; that is one trait. They love it, and they possess it to their heart's content. Free as storms to-day, do they not know it, and feel it,-every one of them, from the sea to the Green Mountains? But there is another side to their character, and that is the old Anglo- Saxon instinct of property ; the rational and creditable desire to be secure in life, in reputation, in the earnings of daily labor, in the little all which makes up the treasures and the dear charities of the humblest home; the desire to feel cer- tain when they come to die that the last will shall be kept, the smallest legacy of affection shall reach its object, although the giver is in his grave; this desire, and the sound sense to know that a learned, impartial, and honored judiciary is the only means of having it indulged. They have nothing timor- ous in them, as touching the largest liberty. They rather like the exhilaration of crowding sail on the noble old ship; and giving her to scud before a fourteen-knot breeze; but they know, too, that, if the storm comes on to blow, and the masts go overboard, and the gun-deck is rolled under water, and the lee-shore edged with foam, thunder under her stern, that the sheet-anchor and best bower then are everything ! Give them good ground tackle, and they will carry her round the world and back again till there shall be no more sea.' "
MASSACHUSETTS FEDERAL JUDGES
From 1789 to 1869 (except between February, 1801, and March, 1802) the only Federal judges were the Justices of the Supreme Court of the United States and the District Judges. Originally, the Supreme Court had six members, two being assigned to each of three circuits. These, together with the respective district judges, were required to hold circuit courts in each district (except Maine) twice in each year. Two of the three had to be present. Conditions of travel were not only dangerous, but so difficult that the Su- preme Court judges had to spend a very considerable part of their time travelling over the country on horseback or in public
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or private conveyances. For judges of varying ages this was a serious ordeal, and it is not surprising that at this period some men declined appointments to the Supreme Bench.
The act of February 13, 1801, passed by the Federalists at the end of the administration of John Adams, while it relieved the Supreme Court justices by creating "circuit judges," was promptly repealed in 1802 by the Jeffersonians, who objected to what they termed the Federalist "midnight" judges ap- pointed under that act.
The act of 1802 provided for six circuits, to each of which one Supreme Court justice was assigned, he and the district judge having concurrent power to hold the Circuit Court alone.
William Cushing, already mentioned, was one of the first justices of the Supreme Court of the United States appointed by Washington in 1789. He served until his death in 1810, when Levi Lincoln, the elder, of Worcester, who had been Jefferson's Attorney General, was appointed, but declined be- cause of his health. Young Joseph Story, of Marblehead, then thirty-three years old, had already made his mark at the bar and in the legislature to such an extent that he was ap- pointed by Madison in 1811, and he served for forty-four years. In 1851, Benjamin R. Curtis, then forty-two years old, was appointed, and he served for about six years. No other judge was appointed for Massachusetts until 1882, when Horace Gray, then Chief Justice of Massachusetts, was appointed.
In the Federal District Court for Massachusetts we also had exceptionally able men on the bench during this period: John Lowell from 1789 to 1801; John Davis from 1801 to 1841; Peleg Sprague from 1841 to 1865; and another John Lowell from 1865 to 1878.
JUDICIAL INDEPENDENCE OF JOHN DAVIS AND JOSEPH STORY
The following striking instances of judicial independence, described by Charles Warren, deserve mention, as they are a credit to Massachusetts: "On October 8, 1808, in the Court House in Salem, a decision was rendered which probably affected the history of the nation to a greater degree than any judicial opinion ever rendered in this Commonwealth.
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"John Davis, Judge of the United States District Court, was . . . an ardent and active Federalist, appointed by Presi- dent Adams. All his friends and judicial associates were Federalists. Before him there was argued the question of the constitutionality of Jefferson's Embargo Law, a measure de- tested and abhorred by the Federalists of this state, against which the state had risen in open revolt. .
"Strong in his judicial integrity, though amid the oppro- brium of all his party associates, Judge Davis resisted all in- fluence, and rendered a judgement sustaining the constitution- ality of the law, in an opinion so conclusive that it settled the question forever. It is interesting to surmise the strain to which the judge's conscience would have been submitted, had the judge been a candidate for reelection at the presidential election which took place, just one month later, in Massa- chusetts, that fall."
The act of Joseph Story was as follows: "Story had been appointed by President Madison on the Supreme Court, only ten months previous. He was a young man of thirty-three years of age. The War of 1812 had begun, and the adminis- tration was vitally interested in prosecuting and convicting the cases of Americans who had been guilty of unlawful trade with the enemy, England. Such a case came up before Judge Story, in which the defendant pleaded that a proclamation of President Madison reviving an embargo law, under which the indictment had been found, was illegal. Judge Story was thus called upon to decide upon the legality of an action of a President who had just appointed him to office, and upon its legality as bearing upon a class of cases in which the President and his administration were vitally desirous of obtaining con- victions.
"Story, in spite of his youth and his personal and political predilections, without hestitation held the action of the President to have been illegal, and the prisoner went free. 'For the Executive Department of the Government, this court entertain the most entire respect,' said the judge, but 'It is our duty to expound the laws as we find them in the records of the State; and we can not, when called upon by the citizens of the country, refuse our opinion, however it differs from that of very high authorities. I do not perceive any reason- able ground to imply an authority in the President to revive
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this act, and I must, therefore, with whatever reluctance, pro- nounce it to have been, as to this purpose invalid.'
"When one recalls the fact that a national election was to take place, that very fall, in Massachusetts and that adminis- tration forces might well have been arrayed against a judge who gave such a decision, had he been subject to the elective franchise, one may rejoice that Federal judges are not sub- ject to such possibilities."
BENJAMIN R. CURTIS (1809-1874)
Owing to its dramatic character, the main incident with which the name of Benjamin R. Curtis is connected in the minds of the public is his dissenting opinion in the Dred Scott case. Great as this service was, it was but one incident in the exceptional career of the man who helped to make life more convenient for the entire Massachusetts bar of today by his work as chairman of the commission which drew the Massachusetts Practice Act of 1851, already mentioned.
Justice Miller of the United States Supreme Court de- scribed Judge Curtis as "the first lawyer of America, of the past or present time. .. . not as an advocate alone, nor as a counsellor"; but "as a lawyer in full practice in all the courts of the country, as engaged in a practice which embraced a greater variety of questions of law and of fact than is often to be found in one man's experience."
He was selected, at the age of forty-two, from such a bar as then existed in New England, to fill the vacancy in the United States supreme bench caused by the death of Justice Woodbury. And at that time, although Mr. Curtis had argued during the seventeen years in which he had practised in Boston more than one hundred and thirty causes before the Supreme Judicial Court of Massachusetts, he apparently had not appeared in a single cause before the United States Supreme Court. However, not only do we find that the Secretary of State, Daniel Webster, and the President of the United States had both thought of Mr. Curtis on the same day, and had each written to the other suggesting him as the best person to fill the vacancy, but Mr. Webster adds, in his letter to President Fillmore, that the "universal sentiment
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in Boston is, that the place should be filled by the appointment of Mr. Curtis."
His power of continuous labor was unusual. In the prep- aration of the answer of President Johnson to the articles of impeachment (a production in which he was unassisted by the other counsel, who had not yet arrived in Washington), he worked upon it for more than thirty consecutive hours without rest or sleep, and this was in his sixtieth year.
He resigned from the Court after six years of service. Then in 1868, as leading counsel for the President before the Senate sitting as a court of impeachment, he rescued the country from the political demoralization which, it is ad- mitted, would have overtaken it had the impeachment of President Johnson been brought to a successful termination. The few Republican Senators who bravely resisted the party demands frankly confessed that it was mainly due to Judge Curtis's argument that they became convinced of the illegality of the impeachment.
The position occupied by Judge Curtis after his resignation from the bench of the Supreme Court was exceptional. The first judge to practise after his resignation from such a posi- tion, it required an unusual dignity and force of character to sustain the position with credit and honor to himself. He argued many of the most important causes before the United States Supreme Court; and it has been stated that, in every case that he argued which was decided in his favor, the deci- sion was based upon the grounds stated in his brief. For many years before his death, the writing of opinions occupied much of his time; and so much were they valued that he became in many cases a tribunal whose decision was final.
ARBITRATION
In view of the current interest in arbitration as a method of settling disputes without a judge, jury, or technical rules, it may interest readers to know that by our common law practice a court has always had power to refer a case to an arbitration at the request of both parties after the case is in court, and that as long ago as 1786 the legislature passed a statute allowing parties to a dispute to choose one or more arbitrators to render a decision which the court would enforce.
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The purpose of the statute was to avoid the delay and an- noyance of court proceedings. But little use has been made of this method. Massachusetts lawyers and litigants have pre- ferred to have their cases heard by a judge. There is today, perhaps, a growing interest in informal proceedings before a judge for those who do not like arbitration.
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