USA > Massachusetts > Commonwealth history of Massachusetts, colony, province and state, volume 5 > Part 13
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To this verdict the defendants filed numerous exceptions. The record of the trial contained in the bill of exceptions com- prised 5781 printed pages. The testimony in the case covered 75,101 typewritten pages, and the printed record and briefs fill five large volumes.
Among the issues in dispute at the jury trial were the valid- ity and effect of a release under seal executed by the plain- tiffs wherein the consideration recited was "One dollar ($1.00) and other valuable consideration." It appeared that at the time of the giving of the release $125,000 was paid to as- signees of the plaintiffs and that several other documents passed between the parties. The plaintiffs contended that this release was obtained by fraud and duress; the defendants that it was a bar to the plaintiffs' action. The Supreme Judi- cial Court decided that the defendants' motion for a directed
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verdict on this ground should have been granted by the trial judge. It held that the release was founded on a considera- tion; that even if the plaintiffs did not have in mind wrongs committed against them before the execution and delivery of the release, it was a bar to the action if voluntarily given; and that the record disclosed no evidence of fraud entering into the subject matter of the release, it appearing that the settle- ment was intelligently and freely made under advice of coun- sel and that no misrepresentations of the defendant entered into its execution.
SACCO-VANZETTI CASE (1920-1927)
The most conspicuous case in the history of the Common- wealth, if measured merely by the world-wide interest drawn to it, arose from the shooting of a paymaster and guard, Frederick A. Parmenter and Alexander Berardelli, at South Braintree on April 15, 1920; and the subsequent conviction of Nicola Sacco and Bartolomeo Vanzetti for their murder. The two defendants were tried together at Dedham by a Norfolk County jury presided over by Justice Webster Thayer and found guilty on July 14, 1926. The defendant Vanzetti had already been convicted (in an adjoining county, by a different jury, presided over by the same judge of the Superior Court) of an attempted hold-up (December 24, 1919) at Bridge- water, and sentenced to fifteen years imprisonment, but evi- dence of this conviction was not permitted to reach the jury who found Sacco and Vanzetti guilty.
Within the allotted space no more than the briefest outline may be given of the very protracted legal proceedings which ensued, or of the contentions of those who believed in the innocence of the defendants and the unfairness of the trial. These contentions, embodied in a succession of motions to secure a new trial, in the main were that the defendants were convicted because of their radical opinions harshly emphasized on cross-examination by the district attorney ; and that Judge Webster Thayer showed prejudice both in his charge and by hostile remarks when off the bench.
The case went to the Supreme Judicial Court on the bill of exceptions taken at the original trial, accompanied by ap-
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peals from a series of supplementary motions for a new trial disallowed by the same trial judge, which were not argued before the full bench until 1926, a delay chiefly due to the re- sourcefulness of the defendants' counsel. The decision over- ruling all these exceptions with a finding of no abuse of judicial discretion (Commonwealth v. Sacco, 255 Massachu- setts Reports 369) was expressed in an opinion of over fifty pages written by Justice Braley. A second appeal was made to the same court on exceptions to an order denying a fresh motion for a new trial on newly discovered evidence contained in affidavits, the salient feature of which was the claim that the defendants "did not commit the murder for which they have been tried and convicted, but that said murder was com- mitted by one Celestos Madeiros, who was awaiting the deter- mination of exceptions claimed by him at a trial in which he was convicted of murder in the first degree." It was again urged that prejudice disqualified the trial judge from passing on this motion. All these exceptions were overruled by the Supreme Judicial Court in 1927 in an opinion written by Justice Wait and rendered April 5, 1927 (259 Massachusetts Reports 128).
GOVERNOR'S ADVISORY COMMITTEE ON THE SACCO-VANZETTI CASE (1927)
Four days later the defendants were sentenced by Judge Thayer to die in the week beginning July 10th. The governor had power, with the advice and consent of his council, to pardon the prisoners or commute their sentence ; but the efforts of those who believed in the innocence of the defendants centered on obtaining a rehearing of the merits of the case. This was not possible by ordinary legal procedure. The consideration was emphasized that the highest court of the Commonwealth (unlike appellate courts in England and Scotland, and in the States of New York and New Jersey) had no power to set aside a verdict, even if it appeared to be against the weight of the evidence, or unreasonable, or if it seemed that there had been a miscarriage of justice on any ground not constituting an error of law. In short, that the
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discretion of the trial judge, unless manifestly abused, could not be interfered with by any authority in Massachusetts.
His Excellency Alvan T. Fuller, having announced an in- tention to make a personal intensive study of the case, presently decided, in deference to a variety of opinion within and beyond the Commonwealth, to appoint an advisory committee as an extrajudicial body to conduct an independent investigation of the case and report their findings to him. On June 1st he named as the members of this committee A. Lawrence Lowell, president of Harvard College, Samuel W. Stratton, presi- dent of the Massachusetts Institute of Technology, and Robert Grant, formerly a judge of the Probate Court of Suffolk County. Their first official meeting was held on June 30 and their report was handed to the governor on July 28.
Meanwhile the governor had completed an investigation of his own entirely separate and apart from theirs. On Au- gust 3 Governor Fuller made public his own decision in a document which found "no sufficient justification for execu- tive interference," believing, as he did, "with the jury that these men Sacco and Vanzetti were guilty and that they had a fair trial." A few days later he issued the report of his advisory committee which set forth their conclusions that the trial was fairly conducted, that a new trial ought not to have been granted, and that they were convinced beyond reasonable doubt that Sacco and Vanzetti were guilty of the murders. Following a series of unsuccessful efforts to secure a writ of habeas corpus from the courts of the United States and of the Commonwealth, the two defendants were finally executed on August 23, 1927.
CRITICISMS OF THE SACCO-VANZETTI DECISION
It is difficult to interpret the psychology of this extraordinary case within a brief compass. Socialistic propaganda assidu- ously and skilfully diffused, alleging that the defendants were being persecuted for their opinions and not for their guilt, was unquestionably the cause of frequent hostilities in Europe and South America against United States officials, the most con- spicuous instance of which was a bomb sent to the American ambassador in Paris. Another body of opinion, some of it
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SELECT BIBLIOGRAPHY
outside the United States, was influenced by the wide circula- tion of an article printed in the Atlantic Monthly for March, 1927, entitled "The Case of Sacco and Vanzetti." This con- tribution by Professor Felix Frankfurter of the Harvard Law School was an eager brief for the defendants rather than an impartial study of the case. Its conclusions, which ap- peared pending the decision of the second appeal to the Su- preme Judicial Court, were not borne out by the decision rendered shortly after. Nevertheless a considerable number of people, both estimable and sincere, few of whom had read the evidence at first hand, continued on the strength of this article or the book into which it was expanded to cherish the belief that an injustice had been done.
Much foreign criticism was based on the length of and long delays in the proceedings. What foreign opinion failed utterly to comprehend was the universal American tendency to give the indicted criminal every chance to establish inno- cence, and in pursuit thereof to tolerate protracted applications on so-called newly discovered evidence to a series of tribunals, a method which would have been frowned out of court in many foreign countries, and would have been unlikely in some other States.
SELECT BIBLIOGRAPHY
BAILEY, HOLLIS RUSSELL .- Attorneys and their Admission to the Bar in Massachusetts (Boston, Nagel, 1907)-Written by the chairman of the Board of Bar Examiners.
BAR ASSOCIATION OF THE CITY OF BOSTON .- Annual Reports (Boston, 1876 and later years).
The Bar Bulletin (1924 and later years)-Issued by the Bar Association of the City of Boston.
CROCKER, URIEL HASKELL, AND CROCKER, GEORGE GLOVER .- Notes on the Public Statutes of Massachusetts (Boston, Little, Brown, 1891).
CROCKER, URIEL HASKELL, AND CROCKER, GEORGE GLOVER .- Notes on the Revised Laws of Massachusetts (Boston, Little, Brown, 1904)-Re- vised and edited by T. A. Mullen.
CROCKER, URIEL HASKELL, AND CROCKER, GEORGE GLOVER .- Notes on the General Laws of Massachusetts (Boston, Little, Brown, 1925)-Re- vised and edited by R. C. Beldes.
DAVIS, WILLIAM THOMAS .- Bench and Bar of the Commonwealth of Massachusetts (2 vols., Boston History Company, 1895)-Deals mainly with period prior to 1889.
130 BENCH AND BAR IN MASSACHUSETTS
DAVIS, WILLIAM THOMAS .- History of the Judiciary of Massachusetts (Boston, Boston Book Company, 1900)-Survey mainly prior to the period dealt with, from the Plymouth Colony.
ELDER, MARGARET MUNRO .- The Life of Samuel J. Elder (New Haven, Yale Univ. Press, 1925)-A well-written life of one of the contempo- rary leaders of the Suffolk Bar.
GRAY, JOHN CHIPMAN .- Restraints on the Alienation of Property (Bos- ton, Boston Book Company, 1895).
GRAY, JOHN CHIPMAN .- The Rule against Perpetuities (Boston, Little, Brown, 1915).
GRAY, RUSSELL .- "The Supreme Judicial Court of Massachusetts" (Medico- Legal Journal, 1925, Vol. XIII, pp. 225-235).
GRINNELL, CHARLES EDWARD .- "Why Thomas Bram was Found Guilty" (The Green Bag, 1897, Vol. IX)-A contemporary trial for murder in the United States District Court.
HARVARD LAW SCHOOL ASSOCIATION .- The Centennial History of the Har- vard Law School, 1817-1917 (Privately printed, Boston, 1918).
HOLMES, OLIVER WENDELL .- The Common Law (Boston, Little, Brown, 1881).
JONES, LEONARD AUGUSTUS, AND RENO, CONRAD, EDITORS .- Memoirs of the Judiciary and the Bar of New England for the Ninteenth Century; with a History of the Judicial System of New England (Boston, Century Memorial Publishing Company, 1900)-Most of this material antedates the forty years under consideration. The editors were assisted by emi- nent judges.
MASSACHUSETTS .- Acts and Resolves (Boston, 1839, and later years). MASSACHUSETTS .- Public Statutes of Massachusetts (Boston, 1882).
MASSACHUSETTS .- Revised Laws of the Commonwealth of Massachusetts
Enacted November 21, 1901, to Take Effect January 1, 1902 (2 vols., Boston, 1902).
MASSACHUSETTS .- The General Laws of the Commonwealth of Massa- chusetts Enacted December 22, 1920, to Take Effect January 1, 1921 (2 vols., Boston, 1921).
MASSACHUSETTS BAR ASSOCIATION .- Annual Reports (Boston, The Rock- well & Churchill Press, 1910-1915)-These were discontinued and have been superseded by the Massachusetts Law Quarterly, 1915 and later years.
MASSACHUSETTS : BUREAU OF STATISTICS .- The Census of Massachusetts: 1895 (7 vols., Boston, 1896-1910)-Succeeding censuses have been taken decennially in 1905, 1915, and 1925.
MASSACHUSETTS : BUREAU OF STATISTICS .- The Decennial Census of Mas- sachusetts: 1915 (Boston, 1918).
MASSACHUSETTS : BUREAU OF STATISTICS .- The Decennial Census of Mas- sachusetts: 1925 (Boston, 1925).
MASSACHUSETTS : JUDICIAL COUNCIL .- Reports (Boston, 1925-1928; re- printed in Massachusetts Law Quarterly, November, 1925, December, 1926, November, 1927, and November, 1928)-The official body, com- posed of judges and members of the bar, created in 1924 for the continuous study of the organization, rules, and methods of procedure and practice of the judicial system of the Commonwealth, the work accomplished, and the results produced by the system and its various parts.
Massachusetts Law Quarterly (Boston, Mass. Bar Association, 1915-1916 and later years).
Medico-Legal Journal (N. Y., 1884 and later years)-A quarterly pub- lication.
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BIBLIOGRAPHY
PEARSON, EDMUND LESTER .- Studies in Murder (N. Y., Macmillan, 1924) -This contains an account of both the Lizzie Borden and Charles L. Tucker cases.
POUND, ROSCOE .- "The Causes of Popular Dissatisfaction with the Ad- ministration of Justice" (American Bar Association, Report of the Twenty-ninth Annual Meeting, 1906, Phila., Dando, 1906)-See pp. 395-417.
POWERS, SAMUEL LELAND .- Portraits of a Half Century (Boston, Little, Brown, 1925)-Intimate sketches, by a prominent member of the bar, of contemporary legal friends and associates.
Sacco-Vanzetti Case: Transcript of the Record of the Trial of Nicola Sacco and Bartolomeo Vanzetti in the Courts of Massachusetts and Subsequent Proceedings, 1920-1927 (6 vols., N. Y., Holt, 1928)- Edited by Newton D. Baker and others. Supplementary Bridgewater case, "available material."
TORREY, GEORGE ARNOLD .- A Lawyer's Recollections in and out of Court (Boston, Little, Brown, 1910).
WILLARD, JOSEPH AUGUSTUS .- Half a Century with Judges and Lawyers (Boston, Houghton Mifflin, 1895)-The reminiscences of a clerk of the Superior Court of Massachusetts.
CHAPTER V
MASSACHUSETTS IN THE WEST
BY CHARLES F. THWING President Emeritus of Western Reserve University
WEST AND EAST (1628-1786)
What is the West? What is the East? What is the North, and what is the South? What, too, is the Northwest or the Southwest? Such geographical divisions carry general, and rather indefinite, ideas. For the purposes of this chapter, the West means that vast territory lying between the Allegheny Mountains on the east, and the western slope of the Rockies. It includes all the states, west of Pennsylvania as far as the Pacific states of California, Oregon and Washington. The northern boundary of the group is specific, the Canadian line; the southern boundary in general may be said to represent the states north of the Ohio River and of a line drawn west- ward from the convergence of the Ohio and Mississippi. Comprehensively, this area represents the larger share of the national domain. A broad inclusion it is.
Massachusetts may fairly claim to have been a western community from the charter of 1628, which granted it a strip of territory from the Atlantic westward to the Pacific, right across the present New York, Ohio, Michigan and Wis- consin. Though these claims lay dormant till the Revolution of 1775, Massachusetts after the Revolution again claimed that strip as far as the Mississippi. The cession of western jurisdiction in 1784 (described in Volume III) left the State the owner of a large tract fronting on Lake Ontario and Lake Erie, on which are based the former land titles of that area.
THE WESTWARD MOVEMENT (1786-1800)
Five forms of the contribution which Massachusetts has made to the West may be distinguished. First, the people
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THE ORDINANCE OF 1787
themselves, organized into specific communities, or unorgan- ized in a general society; second, the power of religion as embodied in the church; third, the worth of education as ex- pressed in and through the school, the college and the univer- sity; fourth, the influence of science and of literature as con- stituting the higher life of the community; fifth, the estab- lishment of commercial and industrial ties. This vast territory is the scene of one of the most characteristic experiences of American life, indeed of all human life, the western move- ment of population. Migration has been and is a character- istic of all peoples, civilized, half-civilized, barbarous. But the movement of the American people from the northern part of the original thirteen colonies to the prairies of the Missis- sippi States is especially significant.
This westward trek began at the close of the Revolutionary War. It was quickened by uncertain conditions obtaining at the close of the war, especially by the necessity of the federal government to keep its promises for the settlement of land bounties with the discharged soldiers of the war. The gov- ernment and some individual States possessed much land, but small funds. The discharged soldiers demanded, as they had a right to demand, their long-delayed pay. The government wished to keep its actual or potential promises of payment. Therefore, through various methods, under diverse conditions and from many communities, the possession of military land set in operation a westward movement of population, which has not ceased to this day.
THE ORDINANCE OF 1787
A fundamental element in this westward migration is the Northwest Ordinance of 1787. That instrument has an im- portance far exceeding even its relation to the migration of a people; for it is a sort of Bill of Rights for the five states which were finally carved out of the Territory of the North- west. This Ordinance contains a group of fundamental prin- ciples. One guarantees freedom of religious worship. The second guarantees the privileges of the common law trial by jury, proportional representation in the legislature, and the writ of habeas corpus. The third, and perhaps the most im-
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MASSACHUSETTS IN THE WEST
portant article, declares that: "Religion, morality, and knowl- edge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." The fourth affirms, "That the said Territory, and the States which may be formed therein, shall forever re- main a part of this Confederacy of the United States of Amer- ica, subject to the Articles of Confederation, and to . . . alterations therein." The fifth outlines the division of the territory into later States. The sixth grandly dedicates the Territory to freedom : "There shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted." To this article, is added a limitation which seventy years later gave exciting occupation to many incomers from Massachusetts: "Provided always, that any person es- caping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service aforesaid."
The fundamental and primary values of this instrument to the people of' Massachusetts are very significant; almost equally important is the fact that this far-reaching charter with its sweeping bill of rights was the work of a Massachu- setts citizen or citizens. The writing of this great document has been credited to several statesmen. It is probable that different parts, articles, or clauses may have been written by different hands. Undoubtedly, two citizens of Massachusetts, Nathan Dane and Manasseh Cutler, were the chief authors. It embodies the democratic principles of the Anglo-Saxon race and of American civilization which were deeply embodied in the Commonwealth of Massachusetts. Nathan Dane incar- nated in himself, as an individual, the great principles inter- woven into the document that he penned.
SERVICE OF NATHAN DANE (1782-1835)
Born in Ipswich in 1752, Dane took his first degree at Har- vard in 1778. Studying law, he presently began practice in the neighboring town of Beverly. From 1782 to 1786, he was a member of the Massachusetts legislature; then, till
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MANASSEH CUTLER
1788, he was a member of the Congress of the Confederation. Within less than a decade of his graduation at college, he had become a leading citizen of the new Republic. His sub- sequent career was not unworthy of so noble a beginning. He reentered the Massachusetts legislature. He was appointed a commissioner to revise the laws of the State, and to revise and publish the Massachusetts charters. He was a delegate to the Hartford convention of 1814. He founded the Dane professorship in the Harvard Law School (endowing it with $15,000), which name it still bears. For many years the prin- cipal building of that school bore his name.
Dane's authorship of the ordinance finds strong evidence in the allusion of Daniel Webster, made (while Dane was still living) in the United States Senate, January 20, 1830, in his so-called First Speech on Foot's Resolution: "At the founda- tion of the constitution of these new Northwestern States lies the celebrated Ordinance of 1787. We are accustomed, Sir, to praise the lawgivers of antiquity; we help to perpetuate the fame of Solon and Lycurgus; but I doubt whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked, and lasting character than the Ordinance of 1787. That instrument was drawn by Nathan Dane, then and now a citizen of Massachusetts. It was adopted, as I think I have understood, without the slight- est alteration; and certainly it has happened to few men to be the authors of a political measure of more large and enduring consequence."
SERVICE OF MANASSEH CUTLER (1787)
It is probable that Manasseh Cutler aided Dane in its com- position, especially by suggestion of certain amendments. Manasseh Cutler was also a citizen of Massachusetts. A clergyman at Ipswich, he was also, in the scarcity of physi- cians, a practical doctor. He served as chaplain in the Revolu- tion, and, in this service, he fought as well as prayed. Botanist, explorer, congressman, he was also an associate of Rufus Putnam in the settlement of Marietta, Ohio. The truth seems to be that, to the text of the Ordinance, Cutler made contribu- tions. Whatever credit may belong to Cutler or to Dane,
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Massachusetts, in either case, contributed the experience of popular government and the hatred of human bondage which permeate its own charters and statutes. Through them, Mas- sachusetts made the great instrument which dedicated the ter- ritory of the five later states, Ohio, Indiana, Illinois, Michigan and Wisconsin to the principles of freedom, religion, morality and education. Massachusetts was thus the author of a docu- ment which deserves to stand by the side of Jefferson's Declar- ation of Independence. The Ordinance was a sort of consti- tutional bill of rights, or preamble, under which has been exerted the influence of Massachusetts in the West, for almost a century and a half.
CHARACTER OF THE NORTHWESTERN SETTLERS (1787-1850)
The sons and the daughters of Massachusetts, who became citizens of the West, form the most important of all the civil- izing contributions of the Commonwealth of Massachusetts to the states of the West. These sons and daughters were a part of the fifth and sixth generations of those who came to Plymouth, to Boston and to Salem, early in the seventeenth century. Those who thus migrated to the west were of the same spirit as well as of the same stock as the original im- migrants. The new Pilgrims encountered also, in what be- came Ohio and her companion states, material conditions akin to those which their forefathers found in the Plymouth and Massachusetts Bay colonies. The English colonists came to Massachusetts and the Massachusetts colonists emigrated westward with purposes not dissimiliar. They were not ad- venturers : both aimed at permanent settlements. They came not as single men, but as families, to establish, or to reestab- lish, homes. Also they both came under a political recognition and an implied pledge of defense by the general government, first British, then American.
Assured of the interest of Massachusetts and of Connecti- cut, the two chief states of the New England Group, over- land emigrants made their settlements to and later beyond the limits of the Ohio Valley. They were impelled by the motive of the betterment of conditions. They sought for a broader life than the fields and the forests of New England
MASSACHUSETTS IN THE NORTHWEST 137
provided. They knew that a soil more fruitful was to be found on the banks of Lake Erie and the Ohio and the Missis- sippi than on the banks of the Merrimac, or the Androscoggin. They came for their own benefit; but they came also, and more, for the sake of their children, and their children's chil- dren.
The motives which sent the settlers of Massachusetts away from their State into the West, were, in no small degree, the very motives which brought the Pilgrims to Plymouth. Again, one observes in this new migration the note which Bradford strikes in his immortal history: "Lastly, (and which was not least), a great hope & inward zeall they had of laying some good foundation, or at least to make some way therunto, for ye propagating & advancing ye gospell of ye kingdom of Christ in those remote parts of ye world; yea, though they should be but even as stepping-stones unto others for ye per- forming of so great a work."
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