USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 5 > Part 12
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The Superior Court was relieved of much litigation arising from industrial accidents by the adoption of the Workmen's Compensation System, which went into force originally in 1911. Also since 1912, by the statute substituting for an appeal from the municipal court of the city of Boston to the Superior Court (in order to give to defendants their con- stitutional right to a trial by jury) a right to remove a civil action in that court to the Superior Court before trial in the court below. This provision was extended in 1922 to all District Courts. Moreover by the legislation of 1919 with respect to the probate courts in the Commonwealth, appeals from them to the Superior Court in matters of separate maintenance and custody of children were abolished.
JUSTICES OF THE SUPREME JUDICIAL AND SUPERIOR COURTS (1890-1930)
During the period from 1889 to 1929 there have been five chief justices of the Supreme Judicial Court, including the present chief justice: Marcus Morton, associate and then chief justice, who died in 1890; Walbridge Abner Field, associate justice 1881-1890, chief justice 1890-1899; Oliver Wendell Holmes, associate justice 1882-1899, chief justice 1899-1902, and since 1902 a justice of the Supreme Court of the United States; Marcus Perrin Knowlton, associate justice 1887-1902, chief justice 1902-1911; and Arthur Prentice Rugg, associate justice 1906-1911 and chief justice since 1911. This court, known prior to the Revolution as the Superior Court of Judicature of the Province of Massachu-
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setts Bay (1692-1775), and since by its present appellation- is "probably the oldest court in the United States with respect to continuous and unbroken existence."
Since 1889 there have been but four chief justices of the Superior Court inclusive of the present incumbent : Lincoln Flagg Brigham, who died in 1890; Albert Mason, chief justice 1890-1905 ; John Adams Aiken, chief justice 1905-1922; and Walter Perley Hall, chief justice since May, 1922.
Before and for a short time after the Revolution, the bar was classified into barristers and attorneys, and both judges and barristers wore wigs and gowns. It will be recalled that, referring to the hearing of Paxton's Case before the Supreme Court of Judicature in 1761, relating to writs of assistance, President John Adams wrote to William Tudor: "In this chamber were seated at a long table all the barristers of Boston and the neighboring County of Middlesex, in their gowns, bands and tye-wigs. They were not seated on ivory chairs, but their dress was more solemn and more pompous than that of the Roman Senate when the Gauls broke in upon them." The use of robes by this court was discontinued in 1792; and for more than a century it sat without them, until March, 1901, when, as a result of a petition from leading members of the bar, the present costume of a simple black silk robe was adopted. This is now also worn by the judges of practically all the superior courts of Massachusetts, thus reinforcing the competent opinion of another early authority that "the digni- fied appearance of the judges in either dress" (scarlet robes with black velvet collars were worn in 1761 in trials for capital offenses) "made an impression upon the public mind of reverence for the authority of the law."
PROBATE COURTS (1919-1930)
The status since 1919 of the several probate courts of the Commonwealth, all of which have for many years been courts of superior jurisdiction with equity powers, though county courts, is a result of the belief that more injustice is apt to be caused by the expense and delay incident to a second trial on facts than in relying on the judges who hear the facts in the first instance. In probate courts, although regarded
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as the people's courts, all proceedings passed on by a judge were, until very recently, subject to a full second hearing be- fore a single justice of the Supreme Judicial Court, or in cases of separate maintenance and custody of children by a justice of the Superior Court.
As a consequence of the great increase in probate business and wider realization of how anomalous it was to require a double trial in a will contest or in a proceeding by a poor woman for separate support, though only a single trial on the facts was allowed in capital cases and the most important litigation, probate appeals in their former sense were done away with by an act of 1919. This act put appeals from the decrees and orders of the probate courts on the same footing as those of the Superior Court in suits in equity, so that they go to the full court without a preliminary rehearing by a single justice of either the Supreme Judicial or the Superior Court. As there are no juries in the probate courts, the judge of probate may in a will contest frame issues of fact to be tried before a jury in the Superior Court; or, if the judge of probate refuses, in his discretion and subject to revision by the full court, he may frame issues and the contest is heard without a jury by the judge of probate.
OTHER COURTS (1912-1930)
Including the municipal court of the city of Boston there are 73 district courts in the State. In 1912 "the experiment of doing away with the double trial of facts in civil cases was authorized in the municipal court of the city of Boston by the establishment of an appellate division; this worked so well that it was applied to all the district courts in 1922 (Chapter 532), and by the same act an administrative com- mittee appointed from the district court justices by the chief justice of the Supreme Judicial Court was constituted. This committee was charged with the duty of promoting co- ordination in the work of the courts; it has visited each court and ascertained its environment; it now holds regional confer- ences throughout the State, and has emphasized the idea that the district courts are a part of the judicial system of the State and should function accordingly." In 1922 the neces-
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sary amount at issue to invoke the jurisdiction of all the dis- trict courts, which was for many years limited to cases in- volving not more than $1,000, and in the municipal court of the city of Boston $2,000, was raised to $3,000; and in 1924 that of the municipal court of the city of Boston was raised to $5,000. In 1929 the limits were entirely removed, so that an action at law for any amount may be brought in a dis- trict court with a right in the defendant to remove it to the Superior Court if he wishes.
The Land Court, established in 1898, "now has jurisdiction of ten different proceedings relating to land," and only part of its work consists of land registration. Since 1915 its jurisdiction has included proceedings to foreclose tax titles. The number of cases in the court increased in the 20 years between 1906 and 1926 from 451 to 1209, or 268 per cent. Since the passage in 1923 of the statutes increasing fees in land registration, the court has returned to the Commonwealth 71 per cent of the amount appropriated by the State.
THE JUDICIAL COUNCIL OF MASSACHUSETTS (1924-1930)
In the closing years of the period under survey was brought into being the Judicial Council of Massachusetts, an important and much needed medium for expediting the trial of cases and relieving congestion in the dockets of the Superior Court, and for the improvement and modernizing of court procedure, so as to minimize both to litigants and the general public, con- sistently with the ends of justice, the proverbial delays and attendant expense of the law. The existence of this body dates from 1924, as the result of a report of a judicature commission; and the statute creating it is entitled "An Act Providing for the Establishment of a Judicial Council to Make a Continuous Study of the Organization, Procedure and Prac- tice of the Courts." It was provided that this council "shall be composed of the Chief Justice of the Supreme Judicial Court or some other justice or former justice of that court appointed from time to time by him; the Chief Justice of the Superior Court or some other justice or former justice of that court appointed from time to time by him; the judge of the Land Court or some other judge or former judge of that
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court appointed from time to time by him; one judge of a probate court in the Commonwealth and one justice of a district court in the Commonwealth, and not more than four members of the bar all to be appointed by the Governor, with the advice and consent of the Council." The appointments are for such periods, not exceeding four years, as the gover- nor shall determine; and except for travel and clerical services and a salary for the secretary, the service is without com- pensation. The council is required to report annually on or before December first to the governor upon the work of the various branches of the judicial system, and is authorized to submit from time to time for the consideration of the justices of the various courts such suggestions in regard to rules of practice and procedure as it may deem advisable.
The judicial council down to 1929 had already transmitted to His Excellency three annual and a number of special reports; and as the result of its study and recommendations several vital reforms have been obtained from the legislature. Among them was legislation in 1925 and 1926 tending to eliminate delay in the trial of cases of murder, manslaughter and certain other felonies, by providing that the evidence shall be taken by an official or appointed stenographer as the tran- script of the evidence and after certification by the stenogra- pher be regarded as a true record. Also by legislation in 1926 that, on motion of the district attorney, the Superior Court may order that the trial of any specified case of crime shall take precedence over all other cases. It had been pointed out in the second report of the Judicial Council that in criminal cases prior to 1926 there was an average of six and two-thirds months between conviction and the allowance of exceptions ; and nearly eleven and one-sixth months between conviction and rescript.
TENURE OF OFFICE AND EMOLUMENTS OF JUDGES
The judges of all the courts of Massachusetts are appointed by the governor with the advice and consent of his council, and their tenure of office has been consecutively for life dur- ing good behavior. A proposal was made in the Constitutional Convention of 1917-the only constitutional convention held
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in the last forty years-to substitute election for a term of years by the people, but it was lost on a test vote. The yearly emolument of the justices of the Supreme Judicial and Superior Courts in 1882 was $6,000 and $4,500 respectively, with $500 additional for the chief justice of the Supreme Judicial Court and $300 for the chief justice of the Superior Court.
These salaries were raised at intervals, and in 1920 were fixed at $12,000 for the Supreme Judicial and $10,000 for the Superior Court, with $500 extra for each chief justice. Co- incidently, however, it was enacted that the provision for re- tirement, long in force, which entitled any judge of these two courts on attaining seventy years and after ten years of con- secutive service in either or both of these courts to retire on two thirds of his salary, should not apply to judges of these courts thereafter appointed nor to any judge then in office who accepted the increase of salary authorized by the act.
The legislature in 1923, however, rescinded the application of this requirement to justices of the Supreme Judicial Court then on the bench, though it limited the amount of the pension to two thirds of the salary as it stood before the increase, but justices of the Superior Court in office when the statute of 1920 was passed are still obliged to choose between a pen- sion and an increase in salary. By Chapter 295 of the Acts of 1928 the salaries of the justices of the Supreme Judicial and Superior Courts were raised to $14,000 and $12,000 respectively with an extra $1,000 for each chief justice. The salaries of the judges of the other superior courts and of the lower courts in the State have been raised more or less proportionately during the period to meet the increased cost of living and larger responsibilities.
Massachusetts has contributed four judges to the Supreme Court of the United States since 1880-Horace Gray, Oliver Wendell Holmes, William H. Moody and Louis D. Brandeis. Gray and Holmes were each chief justice of the Supreme Judicial Court at the time of appointment. Moody and Brandeis were appointed from the bar, Moody having first served in President Roosevelt's Cabinet as Attorney General. Justices Holmes and Brandeis were still in active service in 1929.
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TENDENCIES IN LITIGATION
The forty years from 1889 to 1928 saw a marked trend in certain sorts of litigation and the supersedure of some of these by others. The development of steam railroads and of horse and electric street-car lines, and a general growth in industrial occupations resulted in a rapidly mounting increase in suits for damages arising from personal injuries. While the ver- dicts in these cases provided proper relief to those justly entitled to indemnity, the fact that the defendants were in most cases corporations had a tendency to magnify in the minds of plaintiffs the seriousness of their injuries. So crowded did the dockets of the Superior Courts become that this situation had to be met. The Workmen's Compensation Act of 1911 substituted a new tribunal, the Industrial Accident Board, for dealing with these cases. "The jurisdiction of the Workmen's Compensation Board rests upon the theory that it has been voluntarily accepted by both employer and employee. . .. It is true that the defences of fellow servant and assumption of risk are denied the employer who does not insure. But the Act rests upon the assumption that it applies only to those who voluntarily elect its provisions." "It had long been recog- nized that, in manufacturing especially, a certain number of lives and limbs were bound to be lost or injured. . . . It is the theory of the Workmen's Compensation Act that this human wastage is a cost to be borne by the industries and occu- pations embraced within its provisions, rather than by the community in which the insured employee lives."
AUTOMOBILE CASES
Scarcely had the relief to the jury sessions of the Superior Court been thus supplied when a new emergency appeared in the form of tort cases due to accidents caused by motor vehicles. The recent growth of these has kept pace with the almost universal prevalence of the automobile on our high- ways. In its Fourth Report (December, 1928) the Judicial Council calls attention again "to the fact that the Superior Court was likely to be swamped with an influx of automobile cases." The law entries of motor vehicle cases in the Superior Court for the five months' period, October to February,
From a photograph by Garo, Boston
MOORFIELD STOREY
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INHERITANCE AND INCOME TAXES
more than doubled in 1927-1928 over 1926-1927, while all other cases increased only 1.6 per cent. The suggestion (1928) by the Judicial Council that as a partial remedy for this congestion the District Courts of the Commonwealth be given "original jurisdiction concurrent with the Superior Court of actions of tort for personal injuries, including death, . . or for property damage caused by a motor vehicle or
its operation" was accompanied by the following comment : "Yet it was only a comparatively short time ago that the motor vehicle problem did not exist. . . The fundamental difficulty arises from the fact that a new mode of locomotion has risen within a few years that has rendered our highways places of extreme danger. There were 819,027 motor vehicles registered in Massachusetts during this last year. Besides these thousands more from other States travelled over our roads. The record of injuries from these vehicles is appalling -693 deaths, 31,721 personal injury cases during the last year in this Commonwealth. We have no report of the property damage. Such a record necessarily involves a great many assessments of damages both to person and property." The problems of air travel are also approaching the courts.
INHERITANCE AND INCOME TAXES
The last forty years have seen also a large increase in prop- erty questions incident to the inheritance tax and income tax laws of the Commonwealth enacted in their existing form during this period. Their applicability to given situations and rival claims as to who should bear the burden have been the source of numerous petitions for instructions. Big busi- ness, so called, has become responsible for lengthier trials where commercial transactions are involved, with frequent reference to auditors because of the complicated issues. Such litigation is likely to be so expensive and protracted that settle- ments out of court are apt to be regarded as the most eco- nomical and speedy method of adjusting all but the gravest differences.
The steady growth of very large estates has invited corre- sponding endeavor by disappointed heirs-at-law to frustrate before juries the attested purpose of testators. Although the
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percentage of wills thus voided continues to be very small, the opportunity afforded to distant cousins remains one of the lucrative remnants of piracy left to the modern practitioner. It has come to pass also at the dictates of legislative common sense that veneration for the valid wishes of the dead may no longer prevail against the settled wishes of all concerned. The statutory legal compromise by which a devised estate may, if the court approve, be subdivided as the dictates of the living prescribe, has become one of the convenient and favorite methods of modern adjustment.
FAMOUS MURDER CASES
Any attempt to single out from the civil cases decided dur- ing the period the most representative and outstanding ones would require both more space and more elimination than this summary permits, although, as every lawyer knows, it is the civil rather than the criminal case that is most significant from the aspect of jurisprudence.
Among criminal trials which attracted nation-wide atten- tion was that of Lizzie Borden of Fall River indicted for the alleged murder of her father and stepmother in their dwelling house in 1892. She was tried before a Bristol County jury in June, 1893, and acquitted. There was unanimity of public opinion that the evidence of the government not excluded by the court did not warrant a conviction; but the mystery as to who else could have committed this most brutal murder has remained unsolved to the present day.
Thomas Bram, first mate of the barkentine Herbert Fuller, was twice tried in the Federal District Court for Massachu- setts on an indictment for the murder with an axe on the high seas of the captain, the captain's wife, and the second mate of the ship, which was bound from Boston to Rosario on the Parana River, Argentine Republic. At the first trial, which began on December 14, 1896, every one of the eleven survivors aboard when the Herbert Fuller sailed was called to testify. There was direct testimony from Charley Brown, one of the crew, at the wheel on the night of the murder, that, as he turned the wheel to starboard so that he had to bend
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down, he saw, through the low window of the captain's state- room, the mate Bram strike the captain with an axe.
The theory of the ingenious defence was the impossibility of Brown having seen what he saw through the window; further that the weather conditions on that night would have permitted Brown himself to lash the wheel so that the ship would hold her course long enough to enable him to go for- ward and down the companion way, secure the axe, kill three people, and get back to the wheel. Brown himself was not under indictment.
The jury brought in a verdict of guilty against Bram, which, as the law then stood, would have called for a death sentence, but for the ordering of a new trial because the defendant had not been sufficiently warned as to his rights before he was examined by the authorities on the ship's arrival at Halifax. At the second trial before a different jury the same conclusion as to guilt was arrived at, but in the interval Congress had passed a statute allowing a verdict of "guilty without capital punishment." This the jury took advantage of. Bram was sentenced to Atlanta for life, but after confinement for about fifteen years he was paroled for good behavior.
The trial for the brutal murder of Miss Mabel Page while alone in her father's house at Weston, committed in 1904 by Charles L. Tucker, a resident of Auburndale, obtained wide- spread publicity. This was due mainly to the fact that the evidence of guilt was entirely circumstantial-the strongest sort of evidence if enough can be pieced together, as every lawyer knows, but sentimentalists are apt to disparage it. The case was tried before a Middlesex County jury and two Superior Court justices in 1905 and the defendant was found guilty. A leading Boston newspaper, which had followed the trial, came to a different conclusion editorially and collected by advertisement signatures of thousands of persons, most of whom knew nothing of the case, to an enormous petition to Governor Curtis Guild, Jr., for commutation of the sen- tence. The names of entire families, including in some in- stances children in the cradle, were solemnly set down at the foot of these documents. The governor gave an extended hearing to the petitioners, following a careful individual in- vestigation. In his reply, refusing to commute the sentence, he
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set out that he had "personally examined the neighborhood of the murder" and "on foot passed, with time tests, over the roads and ways about the Page house in Weston and at about the time of day when the murder was committed." The de- fendant was executed, but not before a meeting in his behalf was held at Faneuil Hall, and somebody sent a telegram to President Roosevelt urging him to interfere. To this the President replied in a telegram to Governor Guild, declaring that even if he had such power he would not exercise it, as he considered that the governor's refusal to interfere was entirely correct.
TRIALS OF PROSECUTING OFFICIALS (1921)
Famous among legal proceedings in the history of the Com- monwealth were the cases of Attorney-General v. Nathan A. Tufts and Attorney-General v. Joseph C. Pelletier. These were peculiar in that they concerned the removal of the district attorneys of the two great counties of Middlesex and Suffolk and were solely within the jurisdiction of the full bench of the Supreme Judicial Court. Tufts was tried before a major- ity of the justices at Cambridge for twenty-four days in the summer of 1921 and Pelletier before a different majority at Boston for nineteen days on and following December 27, 1921. This necessitated a suspension of the regular appellate work of the court.
The charges against the respondent in each proceeding were professional misconduct including conspiracy to blackmail. In both cases Attorney-General J. Weston Allen appeared for the government, with the assistance in the Tufts case of the late Henry F. Hurlbut, president of the Bar Association of the City of Boston, and in the Pelletier case of Robert G. Dodge, James J. McCarthy and Andrew Marshall. The re- spondent Tufts was represented by Melvin M. Johnson; the respondent Pelletier by James A. Reed, United States Senator from Missouri, Attorney-General L. C. Boyle, of Missouri, and D. M. Lyons. Both respondents, having been found by the court guilty of many of the charges, were duly removed from office "and forejudged and excluded from holding or exercis- ing the said office."
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WILLETT CASE (1921-1924)
The most conspicuous civil case during the period was that of George F. Willett and another v. Robert F. Herrick and others, reported on demurrer and on exceptions from the trial judge's rulings. The case was significant from the point of view of the publicity it attracted within and beyond the Commonwealth, from the exceptional length of the jury trial and from the size of the verdict, which was subsequently set aside for error by the Supreme Judicial Court.
The case was an action in tort whereby the plaintiffs charged the defendants with having deprived them of the controlling interest in certain companies and business by means of an unlawful combination or conspiracy. The defendants were the persons alleged to be copartners in certain banking firms and others.
The declaration as amended, upon which the action was tried, was in two counts and occupied ninety-five pages of the printed record. The jury trial was held in the Superior Court at Dedham before Judge Callahan, and occupied 185 court days, beginning November 8, 1923. At the close of the plantiffs' evidence a verdict in Wing's favor was directed by the court. On December 18, 1924, the jury returned a verdict for the plaintiffs against the other defendants in the sum of $10,534,109.07.
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