USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 4 > Part 8
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BENJAMIN F. BUTLER AND THE COURTS
The mention of Benjamin F. Butler and his activities is still apt to start controversy in Massachusetts; but whatever his faults, he was a man of ability and very active practice who thoroughly understood our judicial system. In 1859 he was a dominating figure on the joint special committee of the legislature appointed to consider the courts. At the be- ginning of their report (House Document 120 of 1859) they described the system then existing as follows: "The plan upon which our courts are now organized was established in 1820. The Commonwealth then contained but five hun- dred and twenty-three thousand two hundred and eighty- seven inhabitants. The theory of the courts then was, that any party was of right entitled to two trials by jury of all questions of fact in all important cases, civil, as well as crim- inal. The first was in the court of common pleas; either party could then appeal for another trial in the supreme judicial court. This system of trials stood till the year 1840, when Governor Morton went from the bench to the chair of the executive. In his long judicial life, he had seen the mis- chievous fruits of this system, in its delays and expenses. Upon his recommendation, the legislature of that year took away all right of appeal on questions of fact, and defined the jurisdiction of the two courts. Exclusive jurisdiction was given to the supreme judicial court" of practically all civil cases involving more than $300.
"All other civil actions were left in the court of common pleas. It is apparent, this division of business between the two courts had no respect to the importance of the matters litigated in either, but was based entirely upon arbitrary con- siderations of convenience.
"All questions of law, except upon dilatory pleas, by the same act, were made determinable in the supreme judicial
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court. The number of justices of that court was reduced from five to four, and the office vacated by Governor Morton was abolished. Immediately upon the passage of the act many questions arose upon the jurisdiction of the respective courts. In five several instances legislation has been had to relieve the obscurities and infirmities of this short act thus conferring jurisdiction, and to set out more clearly the matter of which the respective courts should have cognizance. Though nearly twenty years have elapsed since its enactment, the' courts are yet busy in determining the powers of the various tribunals under it. And after all these acts of legislation and more than that number of decisions of the supreme court thereon, the law is now in such a state that the commissioners upon the revision of the statutes have found more difficulty, than upon any other subject, in putting these same questions of jurisdiction in an intelligible form into their report."
The committee of 1869 recommended the abolition of the Superior Court for Suffolk County, which had been an ex- periment for the previous ten years, and the abolition of the Courts of Common Pleas throughout the State, and the crea- tion in their place of a superior court for the whole Common- wealth.
While of course it was not stated in the report, it is com- mon tradition at the bar that one reason for this reorganiza- tion was common dissatisfaction with a number of judges of the courts of common pleas as incompetent; and since they could not be deprived of their offices individually, the result was accomplished by abolishing the court and creating a new one. The recommendation was followed, and the pres- ent Superior Court came into existence. It was given con- current jurisdiction with the Supreme Judicial Court of actions at law. The Superior Court was also given ten judges, including the Chief Justice. Since that time, the jurisdiction has been constantly increased, so that it has be- come the great trial court of the State, as the growing amount of litigation required relief for the Supreme Judicial Court. For his constructive service on this committee General Butler deserves great credit.
There is another act, due to his influence, which was of more doubtful value and which many lawyers believe has
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seriously weakened the court. At common law, the judge presiding at a jury trial could talk freely in his charge about the facts, the witnesses, and the weight of the evidence, and could express his opinion about them if he believed it would assist the jury-provided he made it plain to the jury that they were not bound to his views of the facts or witnesses and that it was their function to make up their own minds. This always has been, and still is, part of the function of a judge in jury trials in the Federal courts.
Some time in the fifties, however, General Butler made a political speech in Lowell. A Lowell newspaper printed an account of it with the following headline :
"BEN BUTLER: This notorious demagogue and political scoundrel, having swilled three or four extra glasses of liquor, spread himself at whole length in the City Hall last night. . . The only wonder is that a character so foolish, so grovel- .. ling and obscene, can for a moment be admitted into decent society anywhere out of the pale of prostitutes."
The editor of the paper was indicted for criminal libel. Judge Ebenezer Rockwood Hoar presided at the trial. Judge Hoar was one of the ablest and most respected of our judges, but he was a conservative Whig of vigorous views who dis- liked Butler. On this occasion, his views and individual antipathies appear to have overcome his judicial instincts. He charged the jury that the government was bound to prove beyond a doubt that the article in the paper was intended for the Ben Butler, whose name was "Benjamin F. Butler." Having his right to express his opinion on the facts, as al- ready explained, he went on to say: "I am at a loss to see that there is any evidence upon this point to make it sufficient. There is nothing except the article itself to prove to whom it applies." The jury acquitted the editor.
General Butler never forgot the incident; and he states in his book that when Judge Hoar, after serving on the Supreme Judicial Court of Massachusetts and subsequently as Attorney General under President Grant, was nominated as a Justice of the Supreme Court of the United States, he caused the Senate to reject the nomination.
Also, during the fifties, there was a judge of the Court of
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Common Pleas, who shall be nameless, who constantly irri- tated counsel and their clients by his petty assumption of authority in the conduct of jury trials. When the statutes were being revised in 1860, General Butler was a member of the committee to consider the report of the revision commis- sioners. Justice Oliver Wendell Holmes, of the Supreme Court of the United States, and the late Justice Braley, of the Supreme Judicial Court of Massachusetts, both quote Butler as saying that, partly because of his treatment by Judge Hoar but primarily because of the annoyance caused by the other judge referred to, he induced the committee to report, and the legislature to adopt without discussion, the statute, which has remained on the books ever since, providing that : "The court shall not charge juries with respect to matters of fact but they may state the testimony and the law."
Ever since that time, the judges in our State courts have been to some extent "muzzled" in talking to a jury about a case, although the lawyers on each side of the case have re- mained largely "unmuzzled." A judge, of course, can often by the tone of his voice or otherwise let the jury know what he thinks about the facts or about certain evidence, but he is not expected to express it in words. Lawyers have very marked differences of opinion as to the wisdom of this statute, and there have been frequent suggestions that it should be repealed.
Some agree with General Butler; others believe that it would be in the interest of justice to "unmuzzle" the judge by restoring the common law rule which assumed that the jurymen were sufficiently intelligent and independent to listen to the judge's views without being overawed by them and to do their own thinking and make up their own minds after hearing what he thought. They believe that the constitutional right to jury trial was based upon the assumption of such intelligence and courage in the jurymen. Whether the lay- men who serve on juries consider it a compliment not to be allowed to hear the views of the judge who heard the case with them and is expected to be impartial, is a question which they can answer as well or better than the lawyers. It is still a question of current discussion from time to time before the legislature.
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OTHER LAWYERS 1
Of other outstanding figures at the Massachusetts bar dur- ing the constructive period of American law, space permits a mere reference to the names of a few selected at random : Increase Sumner, judge and governor ; James Sullivan, judge, attorney-general, and governor; his son, William Sullivan; John Quincy Adams, Secretary of State and President of the United States; Samuel Dexter, Secretary of the Treasury under John Adams; his son, Franklin Dexter; George Bliss of Springfield; Jeremiah Mason, who never held judicial office, whose earlier professional life was in New Hampshire and who was, perhaps, the greatest lawyer of them all; Sydney Bartlett; Chief Justice Bigelow, who succeeded Shaw as Chief Justice in 1860; Theron Metcalf, reporter and judge; Perez Morton, attorney-general about thirty consecutive years from 1810 to 1832; Benjamin F. Hallett; George S. Hillard ; Richard H. Dana, author of Two Years Before the Mast; William H. Prescott, who later became the historian; and many other members of a great bench and a great bar.
CHARLES ALLEN, FIRST CHIEF JUSTICE OF THE SUPERIOR COURT (1859-1867)
Charles Allen was born in Worcester, August 9, 1797. He studied at Yale, was admitted to the bar in 1818, and after twenty years or more of practice and service in the State legislature he was appointed, in 1842, Judge of the Common Pleas Court and resigned in 1844, in which year he became a member of Congress, serving until 1853. In 1858, on the resignation of Chief Justice Nelson of the superior court of Suffolk County, he was appointed his successor. The court was abolished in 1859, and he was appointed in that year Chief Justice of the new Superior Court. He resigned his seat in 1867, and died in Worcester, August 6, 1869.
A story is told of Lord Lyndhurst, a great English judge, that he was in the habit of muttering to himself on the bench in tones heard only by the clerk. In one case, as counsel began his argument, after listening for a few minutes, Lynd- hurst was heard muttering: "What a fool the man is." As the argument proceeded further, he said: "Not such a fool
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as I thought"; and, as the argument closed: "Egad, I was the fool myself!" That is the spirit in which every judge ought to train himself to listen.
That Chief Justice Allen had the same impartial spirit is shown by the story told by a partner of the late William W. Crapo, a leader of the Bristol County bar. As a young man, Mr. Crapo tried a case in Worcester before Chief Justice Allen and a jury. The verdict was against him and Crapo moved a new trial on the ground "that the presiding judge was phys- ically and mentally incompetent to hear the case at the time of the trial." Chief Justice Allen listened attentively to the argument for a new trial and, after considering the matter for a few days, granted the motion on the grounds stated! Shortly afterward he resigned from the bench. The explanation of this story is that he was not well; and he knew it, and was fair enough to admit it.
With this account of a standard of judicial impartiality, of which Massachusetts may be justly proud, this chapter may well close.
SELECT BIBLIOGRAPHY
American Jurist and Law Magazine (28 vols., 1829-1843).
BUTLER, BENJAMIN FRANKLIN .- Autobiography and Reminiscences of Major-General Benj. F. Butler; Butler's Book (Boston, Thayer, 1892).
CHASE, FREDERIC HATHAWAY .- Lemuel Shaw, Chief Justice of the Supreme Judicial Court of Massachusetts, 1830-1860 (Boston, Houghton Mif- flin, 1918).
COLBY, JOHN H .- Criminal Law and Practice of New York, with Appendix of Precedents (2 vols., Albany, 1868).
American Jurist and Law Magazine (28 vols., 1829-1843).
FRANCIS, CONVERS .- "Memoir of Hon. John Davis" (Mass. Historical Society, Collections, Third Series, Vol. X, pp. 186-203, Boston, 1849). CURTIS, GEORGE TICKNOR .- Life of Daniel Webster (2 vols., Appleton, 1893).
DANE, NATHAN .- A General Abridgment and Digest of American Law, with Occasional Notes and Comments (9 vols., Boston, Cummings, Hilliard, 1823-1829).
DAVIS, WILLIAM THOMAS .- History of the Judiciary of Massachusetts (Boston, Boston Book Company, 1900)-Includes the Plymouth and Massachusetts Colonies, the Province and the Commonwealth of Massachusetts.
DEXTER, FRANKLIN .- "Remarks on the Resignation of Hon. John Davis" (WILLIAM WETMORE STORY, Reports, Circuit Court, United States, First Circuit, 3 vols., Boston, 1842-1851)-See Vol. I, pp. 618-620).
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JUDICIAL SYSTEM AND THE BAR
FUESS, CLAUDE MOORE .- Rufus Choate, the Wizard of the Law (N. Y., Minton, Balch, 1928).
GREENLEAF, SIMON .- A Discourse Commemorative of the Life and Charac- ter of the Hon. Joseph Story (Boston, Little and Brown, 1845).
GRINNELL, FRANK W .- "The Constitutional History of the Supreme Judicial Court of Massachusetts from the Revolution to 1813" (Mass. Law Quarterly, 1917, Vol. II, pp. 359-562).
HALE, RICHARD W .- Public Opinion on Contempt of Court" (Am. Law Review, 1924, Vol. LVIII, pp. 481-499).
HALL, JUNIUS .- The Act to Amend Some of the Proceedings, Practice, and Rules of Evidence of Courts of this Commonwealth. Passed by the General Court of Massachusetts in 1851; Accompanied with Notes, References, and a General Analysis of the Act. Also Other Acts Passed at the same Session, which Relate to Practice (Boston, Little and Brown, 1851)-See the report of the Commissioners on the Prac- tice Act.
HARVARD LAW SCHOOL ALUMNI ASSOCIATION .- The Centennial History of the Harvard Law School, 1817-1917 (Boston, 1918).
HOWE, SAMUEL .- The Practice in Several Actions and Proceedings at Law, in Massachusetts (Boston, Hilliard, Gray, 1834)-Edited by R. S. Fay, and Jonathan Chapman.
LUMMUS, HENRY TILTON .- Failure of the Appeal System; a Discussion of Appeals from Police, District, and Municipal Courts in Civil and Criminal Cases (Boston, 1909)-Contains an account of the early practice.
MASSACHUSETTS (Commonwealth) : COMMISSIONERS APPOINTED TO REVISE THE GENERAL STATUTES .- Report (Boston, 1835).
MASSACHUSETTS (Commonwealth) : COMMISSIONERS APPOINTED TO CODIFY THE COMMON LAW .- Report, 2 January, 1837 ( MASSACHUSETTS : GEN- ERAL COURT, House Documents, Boston, 1837)-See no. 8
MASSACHUSETTS (Commonwealth) : COMMISSIONERS TO CONSOLIDATE THE LAWS .- [Letter to the Massachusetts Bar Association, inviting sugges- tions] (Mass. Law Quarterly, 1916, Vol. I, p. 263).
MASSACHUSETTS (Commonwealth) : GENERAL COURT: JOINT SPECIAL COM- MITTEE ON THE ADMINISTRATION OF JUSTICE .- Report (MASSACHU- SETTS : GENERAL COURT .- House Documents, Boston, 1859)-See no. 120.
MASSACHUSETTS (Commonwealth) : SPECIAL COMMITTEE ON CODIFYING THE LAWS RELATING TO REAL ESTATE .- [Letter to the Massachusetts Bar Association, inviting suggestions] (Mass. Law Quarterly, 1916, Vol. I, p. 264).
MORTON, MARCUS .- Address to the Two Branches of the Legislature, Jan- uary 1, 1840 (MASSACHUSETTS : GENERAL COURT, House Documents, Boston, 1840)-See no. 9. The governor's inaugural address.
PARSON, THEOPHILUS .- Memoir of Theophilus Parsons, Chief Justice of the Supreme Judicial Court of Massachusetts; with Notices of Some of his Contemporaries (Boston, Ticknor and Field, 1859).
A Report of the Evidence and Points of Law Arising in the Trial of John Francis Knapp for the Murder of Joseph White (Salem, 1830)-Trial on July, 1830.
Appendix to the Report of the Trial of John Francis Knapp, Containing the new Evidence, the Arguments of Counsel, and the Charge of His Honor Judge Putnam, to the Jury, on the Second Trial (Salem, 1830) -Trial in August, 1830.
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SARGENT, LUCIUS MANLIUS .- Reminiscenses of Samuel Dexter; by Sigma (Boston, Dutton, 1857).
SHAW, LEMUEL .- "Address before the Bar of Berkshire on the Occasion of Taking his Seat as Chief Justice, 1830" (American Jurist, 1831, Vol. V, pp. 1-16.
STOREY, MOORFIELD, AND EMERSON, EDWARD WALDO .- Ebenezer Rockwood Hoar; a Memoir (Boston, Houghton Mifflin, 1911).
SUFFOLK COUNTY, MASS., BAR .- Meeting Held in Boston, June 7, 1889, in Memory of Peleg Whitman Chandler (Boston, 1889).
Trial of Professor John William Webster, Indicted for the Murder of Dr. George Parkman, at the Medical School, the 23d of November, 1849. Reported for the Boston Journal (Boston, 1850)-Trial held in March, 1850.
WASHBURN, EMORY-Sketches of the Judicial History of Massachusetts, from 1630 to the Revolution in 1775 (Boston, Little, Brown, 1840).
WARREN, CHARLES .- A History of the American Bar (Boston, Little, Brown, 1911).
CHAPTER III
POLITICAL HISTORY OF MASSACHUSETTS (1829-1851)
BY HAROLD U. FAULKNER Associate Professor of History, Smith College
CHANGES IN TRANSPORTATION (1829-1845)
The decades of the thirties and forties were to Massachu- setts a period of economic readjustment and political tur- moil. Of the numerous economic readjustments, the most important were the shift of capital from shipping to manu- facturing and the rapid growth of the factory system. Ship- ping had to meet not only the competition of manufacturing but also the necessity of adapting itself to iron ships and steam power. At the same time the smaller seaports along the coast were waning in importance as compared with the larger centers; and even the great port of Salem saw its capitalists and ship owners moving their offices to Boston. To these factors, so disruptive to the established shipping interests, was added a general tendency as the years went by to turn away from the sea toward the great West. The common man began to see greater opportunities in the valley of the Ohio or on the shores of the Great Lakes, and New Englanders in increasing numbers were moving toward the setting sun. Thus man power as well as capital was diverted from maritime pursuits. The westward movement, developed by the successful completion of the Erie Canal, was paralleled by a rapid growth of manufactures along the New England seaboard, with the resultant desire for increased markets. All these influences combined to create still another new outlet for New England capital. To secure for Massachusetts com- merce some of the wealth flowing along the Erie and the Hudson into New York, an insistent demand arose for internal
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THE FARMERS
improvements, eventuating in numerous small canals in Massachusetts, and finally in the building of a group of rail- roads radiating north, south, and west of Boston. In 1842 was secured the charter for the Fitchburg Railroad Company, enabling Alvah Crocker to begin the great construction of a highway of commerce which ultimately achieved the penetra- tion of the Berkshires by means of the Hoosac Tunnel. During the next decade, under the direction of another trans- portation genius, Chester Williams Chapin, the Boston and Worcester and the Western Railroad were united into a con- tinuous rail communication between Boston and the West.
THE FARMERS (1829-1851)
While the economic interests of the capitalistic class were being radically modified, the farmer and mechanic were also feeling the influence of changed conditions. Although the Massachusetts farmer saw his daughters migrate to the new textile towns and his sons enter the mercantile life of the growing cities, he did not look upon the growth of manu- facturing as an evil. The more prosperous farmers were quickly won to the protectionism of Henry Clay's "American System," and sought to readjust their farming to the needs of the developing factory towns.
No sooner, however, had the more intelligent farmer con- formed himself to the new conditions than he was forced to a second readjustment by the competition of western grains and meats conveyed over canals and railroads. While the farmers in the fertile Connecticut Valley were able to save themselves by turning to tobacco and other staples, and the more favorably situated farms near the cities might be diverted to truck gardens and dairy products, the period was a diffi- cult one for New England agriculture. And it was marked by the beginning of a process by which the least fertile land was gradually forced out of cultivation. For the farmer, there- fore, these were years of storm and stress.
LABOR AND POPULATION (1829-1851)
Nor was labor untouched by the economic forces af- fecting Massachusetts in the first half of the century.
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Skilled labor found increasing occupation in the building of ships, in the construction of buildings and of new types of machinery; while unskilled labor found enlarged oppor- tunities in the operation of textile machinery and in the build- ing of canals and railroads. Yet labor was restless and disturbed by the increasing immigration which filled the sea- board towns with cheap labor. For a time they sought redress in the Antimasonic, Native-American, and Know-Nothing movements.
In spite of these economic cross currents and the devastat- ing panic of 1837, the thirties and forties were years of prosperity for Massachusetts. The coast towns were ringing with the hammer of the ship-builder, and manufacturing communities were springing up on many little rivers. The population of the State increased from 610,000 in 1830 to 995,000 in 1850. Boston and its suburbs more than doubled during these two decades, Boston itself increasing from 61,000 to 137,000, while some of the inland manufacturing cities, such as Worcester, Chicopee and Lawrence, experienced an even greater relative advance.
ECONOMIC FACTORS IN POLITICS (1816-1821)
It would be impossible for any people to go through such a period of economic change without political reactions, and Massachusetts was no exception. Moneyed Massachusetts began to split between manufacturers and shippers, and hence between those favoring high tariffs and internal improve- ments and those opposed. Likewise rivalries arose between rural democrats and city aristocrats, and also between urban labor and urban capital. Economic differences were strengthened or modified as the case might be by the general democratic movement which was making itself felt in New England as elsewhere. Other factors were the demand for universal education, for a broadening of the franchise, for a democratization of the State Constitution, and for a shift in the incidence of taxation. Finally, in the late forties and the decade of the fifties, the whole structure of Massachusetts politics was undermined by the slavery issue, which was
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destined to destroy the Whig party and break the power of the Democrats.
APPEARANCE OF MASSACHUSETTS DEMOCRATS (1821-1826)
To comprehend in any way the political history of Massa- chusetts during the period 1829-1851, it is necessary to glance briefly at the preceding years; for it was the decade of the twenties that witnessed the disappearance of the Federalist and old Republican parties and the rise of the National Republican and Democratic organizations. The Federalists had maintained their control of Massachusetts politics until 1823, when William Eustis, a former member of Jefferson's cabinet, defeated John Brooks, who had been governor since 1816. The downfall of the Massachusetts Federalists was emphasized in the presidential elections of 1824, when New England Federalism turned as its only logical choice to the most conservative candidate available, John Quincy Adams, a Republican who in earlier years had bitterly de- nounced the Federalists. The Federalists unsuccessfully op- posed the reëlection of Governor Eustis in 1824; they offered no ticket in 1825; but made a final and half-hearted effort to regain power in 1826, when they nominated Samuel Hubbard for governor.
While the majority of the old Federalists were coalescing with the more conservative Republicans to cast the State's electoral vote for Adams, certain elements from both earlier groups were organizing to back William H. Crawford. In the first place, the seacoast Federalists disliked the protective theories of Adams; and in the second place, the more radical element of the Republicans felt that Adams and his group were too conservative and aristocratic. This "amalgamation of high-toned federalists and radical democrats" accomplished little for Crawford in 1824; but it became the nucleus of that element of dissident Republicanism which ten years later formed the Democratic party in Massachusetts.
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