USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 5 > Part 11
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ADMISSION TO THE BAR
LARGE FIRMS AND PRACTITIONERS
Though there are still specialists at the bar, in patents, ad- miralty and conveyancing, various factors have combined to make them less prominent than formerly. The individuality of patent and admiralty lawyers has suffered somewhat from their comparative overshadowing by the volume of other legal affairs and litigation. It has suffered too from the develop- ment of the huge firms, already referred to, equipped to spe- cialize in every branch of the law ; though owing to the growth of population it is probable that more patent and admiralty business is actually transacted in the Commonwealth than at any time hitherto. Yet its practitioners are less in the public eye. Similarly, though there are more sales of real estate than ever, every important law firm has a conveyancer of its own, and the attorney who confines himself to searching titles encounters also quasi competition from the title insur- ance companies. A decade or so ago it looked as if the spe- cialist in conveyancing might find himself merged in corporate or cooperative substitutes; but recent activity in real estate throughout the Commonwealth has given a fresh lease of life to his prominence as an individual.
ADMISSION TO THE BAR (1780-1901)
The limits of this chapter presuppose familiarity with the requirements for admission to the bar prior to 1889. From the adoption of the Constitution of Massachusetts in 1780 these have been prescribed by the Supreme Judicial Court, subject to not infrequent statutory limitations by the legisla- ture down to the period under consideration. Those interested in the early details will find them consecutively cited in the work by Hollis R. Bailey, now and for many years chairman of the Board of Bar Examiners of Suffolk County, which is described in the bibliography of this chapter. In 1876 the legislature abolished the existing provision by which three years' study in an office entitled a candidate to admission, and left the whole matter practically in the hands of the Supreme Judicial and Superior Courts. The courts, however, were required to satisfy themselves as to the qualifications of appli-
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cants by an examination; and applicants had to be of good moral character.
Following this change in the law the Supreme Judicial Court in 1876 appointed by rule examiners in the several counties, but neither the statute of 1876 nor any rule required a definite amount of general education or a fixed period of legal study.
This system of county boards of bar examiners continued from 1876 to 1897, when it was superseded by a State board ·of bar examiners, the five members of which were to be ap- pointed by the Supreme Judicial Court. It was provided that no two of the appointees should reside in the same county; and that after the initial selection for graduated terms, one member should be appointed annually for five years. The act provided for compensation for the members, and prescribed an entry fee of ten dollars for each original petition for ad- mission, and of five dollars for each subsequent petition by the same applicant. "One reason and perhaps the principal reason for establishing a state board was to secure uniformity of requirements for admission to the bar throughout the Commonwealth, and also to raise the standard of admission in the counties outside of Suffolk." The Board of Bar Exam- iners was authorized to fix the time and place for holding examinations and they were given power to make rules, sub- ject, however, to the approval of the court. Since 1908 there have been two examinations each year, held on or about Jan- uary 1st and July 1st. A single day only has been allowed for each examination. In July, 1901, the number of questions was reduced from forty to thirty-fifteen for the forenoon paper, and the same number for the afternoon paper.
REVISED REQUIREMENTS (1904-1929)
In 1904 the Board of Bar Examiners introduced a bill which became law and empowered them, if the Supreme Judi- cial Court approved, to require all applicants to pass a prelim- inary examination in general education before they could be registered as law students. It also empowered them, subject to the same approval, to require all candidates to complete three full years of legal study before being eligible for exam- ination for admission to the bar. Eleven years later the
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REVISED REQUIREMENTS
legislature by statute curtailed these powers, as has been already set forth, by providing that "any applicant for ad- mission to the bar who is a graduate of a college or who has complied with the entrance requirements of a college, or who has fulfilled for two years the requirements of a day or even- ing high school or of a school of equal grade, shall not be re- quired to take any examination as to his general education."
This was done at the instance of the so-called practical and evening law schools in order to remove what was claimed to be an aristocratic impediment to applicants able to pass the written legal examination set by the bar examiners. It was urged by those in opposition, including the bar associations, that for the protection of the community a good general educa- tion was no less indispensable to the lawyer than to the phy- sician; and that to sacrifice the public by opening wide the doors to the legal profession merely to provide a living for those who lacked proper educational advantages was demo- cratically unsound. The opinion of the Judicial Council of Massachusetts as to the two points of view has already been quoted. But the low educational limit fixed by the legislature in 1915 is still law. On the other hand the powers conferred on the Board of Bar Examiners to make rules, subject to the approval of the Supreme Judicial Court, with reference to examination for admission to the bar have not been otherwise restricted.
The rules of the board, established April 23, 1921 and ap- proved by the Supreme Judicial Court May 25, 1921, provide that "no person shall be eligible for examination for admission to the bar until he shall have devoted three full years, or their equivalent (usual vacations excepted) to the study of the law." The Board of Bar Examiners interpret this rule to mean that the term "study of the law" will be satisfied by three years' study in any approved law school having a three years' course and holding regular day sessions, or four years in any approved evening law school having a four years' course; or three years' study in the office of an attorney, or elsewhere, under proper direction, with not more than four weeks' vacation in each year.
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LAW AT HARVARD UNIVERSITY (1815-1870)
The origin and development of every law school in Massa- chusetts, except the Harvard Law School at Cambridge, fall within the period of forty years under consideration. The Harvard Law School, which in 1917 had already been in ex- istence one hundred years, was "the first University Law School as it is the oldest law school now existing in any com- mon law country." Its Centennial History, written and com- piled by the Faculty with the assistance of the graduates and published by the Harvard Law School Association, tells of its start in 1815 through the generosity of Isaac Royal who
died in 1781, fortified by the gift of Nathan Dane accepted in 1829. Thence followed growth from small beginnings to importance under Joseph Story, the legal instructor of Simon Greenleaf, Joel Parker, Theophilus Parsons and Emory Wash- burn. This half century of activity was but a preface to its virtual rebirth by the appointment of Charles W. Eliot to the presidency of Harvard in 1870, and by his personal choice of Christopher Columbus Langdell, inventor of the now-fa- mous "case system" of instruction in the law, to be dean of the Law School. The principle which underlay Langdell's se- lection was not, as hitherto, to secure a man of mark whose prestige would increase that of the school but, as he himself explained, that a teacher of law should know expertly not so much the content of the law as the method of studying it. "What qualifies a person, therefore, to teach law is not ex- perience in the work of a lawyer's office, not experience in dealing with men, not experience in the trial or argument of causes-not experience in short in using law, but experience in learning law."
MODERN HARVARD LAW SCHOOL (1870-1930)
Langdell's innovation was regarded with distrust at first, except by the best students. He did nothing to force upon others the acceptance of his system, but slowly and steadily it gained ground. In a few years James Barr Ames was ap- pointed to the faculty and "brought youth, fire, virility into the contest; but for many years the two were alone in their use of the new method. It was ten years before others ac-
NON SVB HOMINE, SED SVB DEO ET CECE
From a photograph by Paul J. Weber
Courtesy of Harvard University
LANGDELL HALL PORTICO, HARVARD LAW SCHOOL
i
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MODERN HARVARD LAW SCHOOL
ceded to it. Finally, all of Langdell's colleagues adopted his invention and Professors James B. Thayer and John C. Gray became its chief public defenders. The number of students at Harvard greatly increased; distinguished English lawyers ap- proved of it; the students trained under it gained notable success at the bar. Long before Langdell's retirement as Dean the case for his system was won."
In 1893 the school took another advanced step, by which only college graduates were eligible for the law degree. In 1895 Langdell resigned the office of dean after twenty-five years of service and was succeeded by Professor Ames. "Dur- ing the forty years from the death of Story to the year 1885 the maximum attendance of students had increased but fifty; in the following twenty years a sudden and unexampled in- crease in numbers took place. From 165 in 1885, the attend- ance rose, with hardly a year's check, to 765 in 1904; a difference of 600, or 364%. The library grew at an almost equal rate." Following the sudden illness and untimely death of Ames early in the academic year 1909-1910, Ezra Ripley Thayer, brilliant son of James B. Thayer, was chosen dean and held the office until his sudden and lamented death in 1915. He was succeeded by Roscoe Pound, the present dean, under whose administration the school has grown in num- bers and more than held its own in national influence.
During its entire history the students have been drawn from all parts of the country, and for a considerable portion of its history the men from outside New England have far outnumbered those from the New England States. A large endowment fund, already over $3,000,000, has been raised and is still being added to for the establishment of new profes- sorships, more lecture halls, and for the purposes of legal re- search. In his annual report for 1926-1927, President Lowell of Harvard University declared: "The Law School continues to attract an ever-increasing crowd of applicants, until they have exceeded the number that can at present be adequately taught. Although no precise limit has been fixed, it has been found necessary to refuse admission to many men. By the end of last August over 800 had applied, and those who wrote later were informed that they could be received only so far as there might be room for them. . .. The lec-
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ture rooms are, indeed, used to the utmost and the reading rooms are now wholly insufficient, but as already mentioned, Langdell Hall is to be greatly enlarged, and when that is done the material deficiency of the School will have been remedied." The remodelled and greatly enlarged Langdell Hall, a magnificent structure, most spacious in its facilities for study and research, was formally dedicated on Sept. 25, 1929.
BOSTON UNIVERSITY LAW SCHOOL (1872-1930)
This institution was established in 1872, "with the active cooperation and assistance of many leading members of the Boston bar," and partly as a protest against Langdell's theory of teaching at Harvard. For a number of years it was re- garded, and still is by some, as a "more practical law school." Its original quarters were temporary, but the school became domiciled in 1896 in Isaac Rich Hall, erected and occupied exclusively for its uses. It admits college graduates of any college or university of good standing without formal exami- nation. Applicants other than college graduates may be ad- mitted without formal examination on presentation of a satis- factory certificate that the applicant has "completed two years' work at an approved college or such work as would be accepted for admission to the third or junior year in an approved col- lege." The system of instruction, which occupies three full years, "combines the study of the rules and principles of the law, the analysis and statement of decided cases, discussion of problems (which the students are called on to state and solve) and court work, all accompanied by lectures." The present charge for each year of membership in the school in one class is $225. Its numbers have steadily increased from 81 students in the year 1873-1874 to 636 in 1927. Among its graduates are the present chief justice and three associate justices of the Supreme Judicial Court besides a number of judges of other courts of the Commonwealth and prominent members of the bar.
OTHER BOSTON LAW SCHOOLS (1906-1930)
In addition to and, because of their lower preliminary edu- cational requirements, competitive with the Harvard and
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BOSTON LAW SCHOOL
Boston University law schools, are the two so-called evening schools of the State, that of Northeastern University (a de- partment of the Young Men's Christian Association) and the Suffolk Law School. The latter "from a lowly beginning of 9 students in September, 1906, has risen with such rapidity that it now has the largest attendance of men of any law school in the world," a membership in 1926-1927 of 2440 students. The entire course of study requires four years, the division of each school year being two semesters of seventeen weeks each. Lectures occupying an hour and a half each for three days or evenings per week form the curriculum for regular students.
Suffolk Law School's requirement for the LL.B. degree, which after opposition it was in 1914 empowered by the legis- lature to confer, is "a high school education or its equiva- lent." But "men of mature years who were obliged to become wage earners before completing high school . . . may be ad- mitted, at the discretion of the Dean . . . with the privilege of making up their academic deficiencies in our Summer Preparatory Department, while the law school is not in session, thus accomplishing both law and preparatory work in four years, provided they have the equivalent of at least one year of high school to begin with." By this means two birds are killed with one stone and a democratic broad highway to the bar examinations is provided for men, ambitious to become lawyers, who have been "denied educational advantages in boyhood and obliged to educate themselves at odd moments while doing a man's work in the world."
Similarly the Portia Law School, founded in December, 1908, incorporated on July 25, 1918, and authorized by the legislature in 1919 and 1926 to confer respectively the degree of bachelor of laws and master of laws, offers legal educa- tion to women seeking admission to the bar and claims to be "the only law school exclusively for women in the world." It has been housed since February, 1922, at 45 Mt. Vernon St., Boston; and its four years' course of study-instruction three mornings or three evenings a week for an hour and a half for from 32 to 35 weeks-is allied to its Summer Pre- paratory School, where candidates for the bar can in the same period secure the "high school education or its equivalent"
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which is a requisite for the Portia Law School bachelor of laws degree. From a beginning of two students in 1908-1909 the law school for the year 1926-1927 showed an aggregate of 436 women enrolled for the study of the law, the majority of whom expected to practice it.
ASSOCIATIONS OF LAWYERS (1761-1930)
A bar association existed in Suffolk County as early as 1761, and in several of the other counties at very early dates. These associations "interested themselves a good deal in the matter of legal education and admission to the Bar," a custom doubt- less borrowed from England. Between 1835 and 1876, how- ever, there had been no Boston bar association, and the latter year marks the organization of the third Boston bar associa- tion, which under the name of the Bar Association of the City of Boston has had a continuous and increasingly useful existence ever since. Local bar associations were formed in all the counties of the Commonwealth except one, Nan- tucket, the purpose of whose existence has been and is measur- ably similar to that set forth in the charter of the Bar Associ- ation of the City of Boston-namely, that of "promoting social intercourse among the members of the bar; of insuring con- formity to a high standard of professional duty; and of mak- ing the practice of the law efficient in the administration of justice."
Through the standing committees of its council, on grievances and amendment of the law, the Bar Association of the City of Boston has for the last fifty years frequently investigated charges of professional misconduct and recom- mended the disbarment of unworthy practitioners, and has favored or opposed before committees of the legislature measures relative to the administration of justice. Its total membership, which is by election, was in 1927 (including 92 honorary members) 1539. Until very recently the associa- tion had rooms and kept its library in the wing of the Post Office Building occupied by the United States Courts; but actuated by desire for an abode of its own for the good of the association, it sold the library to the United States for
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MASSACHUSETTS BAR ASSOCIATION
$17,500 as a nucleus for a building fund, and temporary quarters were provided in the new Parker House.
The first purpose of the association-the promotion of social intercourse among the members of the bar-is being actively pursued so as to secure a larger representation and wider interest from the whole body of the Boston bar. A new and important feature since January, 1924, has been the Bar Bulletin, a pamphlet of a few pages, issued by the association. This publication informs the members of the activities of the association and contains brief notes which may be of current practical use or professional interest.
MASSACHUSETTS BAR ASSOCIATION (1909-1930)
Junior in age to these various county and local associations of lawyers is the Massachusetts Bar Association, formed in December, 1909, which is in its essence an organization of lawyers from all over the Commonwealth. Its object, as described by its constitution, "shall be to cultivate the science of jurisprudence, to promote reform in the law, to facilitate the administration of justice, to further uniformity of legisla- tion throughout the Union, to uphold the honor of the pro- fession of law and to encourage cordial intercourse among the members of the Massachusetts Bar." Its membership is limited to members of "the legal profession in good standing, practising in the Commonwealth of Massachusetts," who are members of the bar of the State. Election is by vote of the committee on membership.
While it carries on its activities largely through its standing committees, its general meetings are held in the various cities of the Commonwealth from time to time-in Springfield, Worcester, Pittsfield, Salem or Plymouth as well as in Boston. The custom of holding dinners, which involved remaining over night, has lapsed in favor of all day discussion or ad- dresses, with luncheon in between. The interest of those un- able to attend these gatherings was stimulated by the establish- ment in the fall of 1915 of the Massachusetts Law Quarterly. This is virtually a State law magazine in contradistinction to one of national scope, dealing primarily with matters of local interest and practice for Massachusetts lawyers. By its able
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editing during the last dozen years, measures in furtherance of more enlightened justice have been given publicity with competent criticism.
ORGANIZATION OF THE COURTS (1889-1930)
Between the years 1889 and 1929 there have been no major changes in the structure of the Massachusetts courts except for the creation in 1898 of the Land Court for the registration of title to land held and possessed in fee simple within the Commonwealth. Nevertheless the period has been conspicu- ous for changes of jurisdiction, especially in the transfer of powers formerly held by the Supreme Judicial Court to the Superior Court, to meet the exigencies due to growth of population with a tendency to flock to cities, and to confront a new set of problems arising from industrialism and changed social points of view, some of which have been enforced by legislation. Not longer ago than 1880 the Superior Court had not even concurrent jurisdiction in equity, and possessed no jurisdiction over petitions for divorce, annulment of mar- riage and custody of children. Even the more important actions at law were tried in the Supreme Judicial Court, for that court had concurrent jurisdiction over actions of tort, contract and replevin where the amount sought to be recovered was $4,000 in Suffolk and $1,000 in other counties.
Until April 1872 all indictments for murder were tried before the full court. It was provided by an act of that year that two or more justices of the Supreme Judicial Court should have the powers of a full court in the trial of a murder case. It was not until 1891 that exclusive original jurisdiction over capital crimes was given to the Superior Court; but with the limitation that they should be tried before three justices. As a matter of record, however, three Superior Court judges never sat in the trial of a capital case in Suffolk County, though four capital cases tried in other counties appear in the Reports, in which in each instance the chief justice and two associate justices presided. In 1904 the legislature changed the words "three" to "two or more," thus enabling two justices of the Superior Court to try a capital case. Finally by the Acts of 1910 the legislature removed the exist-
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THE SUPREME COURT
ing distinction between capital indictments and civil cases by providing that in either the court might be held by one or more of the justices.
THE SUPERIOR COURT (1890-1930)
From this survey it appears that the Superior Court has in the last forty years become the great trial court of the Com- monwealth. Moreover, most of the whole burden of ad- ministering equity throughout the Commonwealth has latterly been laid upon the Superior Court-a court, it is to be borne in mind, which at the beginning of this period had no equity jurisdiction at all. In 1883 it was given jurisdiction in equity concurrent with the Supreme Judicial Court; and in 1892 the Supreme Judicial Court was authorized to transfer to the Superior Court any suit in equity. By 1925, acting under this authority, the Supreme Judicial Court had relieved itself of most of its original jurisdiction except for a few prerogative writs. On the other hand-through this process of gradual transfer, the Supreme Judicial Court which still consists, as since 1882, of a chief justice and six associate justices-has been increasingly enabled to concentrate attention on appeals before the full court, with less and less individual diversion by its other functions. A single justice of the Supreme Judicial Court continues to sit in the equity session to hear extraor- dinary proceedings still within its jurisdiction.
Forty-five years ago all issues of fact framed for trial by jury in suits in equity and in probate appeals pending in the Supreme Judicial Court were tried before a single justice at the bar of that court, but in 1895 the Supreme Judicial Court was given authority to send such cases to the Superior Court for trial. For many years the court did not take advantage of this authority, but all issues framed for trial by a jury in equity causes are now tried in the Superior Court, and in 1919 the jurisdiction of the Supreme Judicial Court for the trial of facts in probate appeals was terminated. All issues to be tried by a jury in probate proceedings are now framed in the Probate Court and tried in the Superior Court, as are issues framed in the Land Court.
Instead of a chief justice and nine associate justices, with
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which it began in 1859, the Superior Court has now, by suc- cessive legislation, a chief justice and thirty-one associate justices. Nevertheless, the congestion of cases, especially on its criminal side, prompted the passage of a legislative act in 1923 authorizing the chief justice of the Superior Court to call up justices of the District Court to sit in the Superior Court and try cases of misdemeanor (except conspiracy and libel) with juries. This act was made experimental until July 1, 1926, but its operation has been extended until De- cember 31, 1932. The Judicial Council of Massachusetts has urged that the statute be made permanent.
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