USA > Massachusetts > Suffolk County > Boston > Fifty years of Boston; a memorial volume issued in commemoration of the tercentenary of 1930; 1880-1930, Pt. 2 > Part 11
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Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47
CONCLUSION
If space permitted a report more nearly complete than this, inany other institutions in Boston and Greater Boston would receive something more than a passing mention. Even in a selected list one could hardly omit the New England Conservatory of Music, the School of the Museum of Fine Arts, the State Normal Art School, the State University Extension Courses or the Frank- lin Union. The Lowell Institute, which for over ninety years has provided free courses and lectures, given by men of national and international eminence, would merit a complete article by itself. Fortunately, some of these institu- tions are described in other parts of this volume. It is only possible to say here that Boston has a very large number of schools, teaching law, music, art, divinity, languages, pharmacy, nursing, elocution, gymnastics and commercial and mechanical branches. Opportunities in the field of Adult Education alone fill a pamphlet of nearly a hundred pages, published annually under that title.
Private academies are scattered throughout the area of Greater Boston, often in settings of great landscape beauty. Among these the Roxbury Latin School, founded in 1642, Milton Academy, less venerable but also an early foundation, Thayer Academy in Braintree, Noble and Greenough's School in Dedham, Lasell Seminary, Browne and Nichols School, Belmont Hill School, Huntington School for Boys, the Country Day School, the Beaver Country Day School and Notre Dame Academy might be mentioned as adding to the educational resources of the district. The Farin and Trade School for Boys on Thompson's Island is unique in location and in character. The latest foundation is Regis College in Weston, a college for young women, conducted by the Sisters of St. Joseph, which held its first commencement and granted its first degrees in June, 1931.
i
THE BENCH AND BAR
By FRANK W. GRINNELL
As the two most important factors in the judicial system of Massachusetts are the method of selecting judges established here and the tenure of their offices, a brief explanation may clear up common misunderstandings and serve as the best introduction to this chapter.
It is commonly said that Massachusetts judges are appointed for life, but no Massachusetts judge has ever been so appointed. The judges' commis- sions contain the words of the Constitution that they shall hold office "during good behavior," and those words mean exactly what they say, for a judge can be removed under the Massachusetts Constitution in three different ways,- by impeachment, which is a judicial proceeding before the Senate sitting as a court; by the Governor and Council on the address of both houses of the Legislature, which is a purely legislative proceeding similar to the passage of a bill; and, under the fifty-eighth amendment, by the Governor and Council "after hearing, because of advanced age or mental or physical disability." All of these methods have been resorted to at different times, for one reason or another, although, fortunately, this has not happened often.
The reason for the tenure during good behavior, subject to removal by the methods stated, was to secure the independence of the judiciary. The English people secured this independence of their judges against the crown after the Revolution of 1688 by the Act of Settlement of 1701, but this act did not extend to the colonies and in the eighteenth century there were arbitrary removals of judges - in New York and Maryland, for example - by royal governors which caused much uneasiness throughout the colonies. The Declaration of Independence recited as one of the grievances against King George III that "he has made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries." This had been a subject of vigorous discussion in Massachusetts in 1775 just before the battle of Lexington .* Accordingly the Massachusetts Constitution of 1780 provided for tenure "during good behavior" as the most effective safeguard against the political influence of "King Majority" in the administration of justice. It also provided for appoint- ment by the Governor and Council as the method best calculated to secure good judges. The movement for electing judges which swept over the country in the middle of the nineteenth century was resisted by Massachusetts, whose people stood by the appointive principle which had become part of the character of this Commonwealth.
While it is not our desire to claim perfection for the Massachusetts bench, or to make comparisons in any way disparaging judges of other states, it is well known that one of the serious problems constantly discussed today in certain states is the proper method of selecting judges. This is due to conditions
* See John Adams, "Works," Volume 3, pages 558-559.
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resulting from a so-called "elective" system and short terms - conditions from which we have been largely free in Massachusetts. The fact is that in a large community election of a judge, in any real sense, does not take place. Though the forms of election inay be observed, the judges are practically appointed by unofficial political powers .* In Massachusetts all our governors have felt the responsibility imposed upon them by our distinguished judicial traditions, and this has not only protected the character of the bench but preserved the bar from the demoralizing influence of having to consider a judge's political affiliations when cases are presented before him. It has also saved the public from the degrading spectacle of political campaigns for judicial office. The appointive system is the only system which enables the public to obtain the services of highly qualified men as judges, whether or not those men would be popular as political candidates or satisfactory to the party man- agers. The history of the Massachusetts bench contains many instances of men who would not have been willing to enter a political campaign for election or would not have been elected, if willing. During the period covered by this chapter it is sufficient to mention, as examples, Chief Justice Gray, Chief Justice Holines and Mr. Justice Sheldon, all legal scholars of whose judicial services the public would have been deprived if there had been a so-called "elective system" in Massachusetts.
With this background of judicial selection and tenure, we may approach the professional history of Boston during the past fifty years.
PERIODS OF PROFESSIONAL HISTORY SINCE 1780
While this chapter is supposed to begin with 1880, the period in the history of the bench and bar with which it deals began in 1860. The history of our judicial system, since the Revolution, may be roughly divided into five more or less distinct periods.
The first covered the reorganization of the courts during the Revolution and after the Constitution of 1780 was adopted. That Constitution reorganized and established the Supreme Judicial Court and such other courts as the Legis- lature should create, as one of the three co-ordinate departments of the state government. This period extended to 1806, when Theophilus Parsons became Chief Justice.
The second period extended from 1806, when the more modern adminis- tration of justice began, largely under the influence of Parsons, and the con- tinuity of our law also began through the publication of the Massachusetts Reports, for which Parsons set a high standard by liis judicial learning and power of statement. After the death of Parsons in 1813 this period extended under Chief Justice Parker until 1830.
The third period began with the appointment of Lemuel Shaw as Chief Justice in 1830, the reorganization of the Harvard Law School in 1829 under the guidance of Joseph Story, whose subsequent teaching and law writing had a far-reaching influence on legal study and training, and the first revision of the Massachusetts Statutes in 1836 by a commission, headed by Charles Jackson.
* See Kales, "Unpopular Government in the United States," pages 226-228.
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FIFTY YEARS OF BOSTON
During the thirty years of Shaw's service, the Supreme Judicial Court assumed its position of national influence. The common law, as applied to modern business, was expounded and stabilized by Shaw and his associates and civil procedure was simplified by the Practice Act of 1851-52, a measure of far-reaching importance which has served as the basis of Massachusetts practice ever since.
The fourth period begins with the resignation of Chief Justice Shaw in 1860 and the creation of the Superior Court (largely through the influence of Benjamin F. Butler, then a member of the Legislature) under an act of 1859, in place of the earlier Court of Common Pleas. This period extended until about 1912 and witnessed the final establishment of full equity jurisdiction, the gradual transfer of most of the original trial work, both at law and in equity, from the Supreme Judicial Court to the Superior Court, the development of the probation system in criminal law, the revolution in the methods of teaching law and the rise of the great modern university law.schools, the creation of the Land Court in 1898 and of the Juvenile Court, the simplification of criminal pleading as a result of the work of the Commission of 1899, and the creation of the State Board of Bar Examiners in 1898.
The fifth period is the period of the rise in importance of the district (or lower) courts, the development of juvenile jurisdiction, the rise of evening law schools and the consequent flooding of the bar, the Constitutional Convention of 1917, the intensive study of practice and procedure and the more business- like administration of the courts demanded by the increasing congestion, the legal problems created by the prohibition law, the automobile and the com- pulsory motor vehicle law of 1925, the further shifting of jurisdiction from the Supreme Judicial Court to the Superior Court and the Probate Courts and from the Superior Court to the Land Court, the Probate Courts and the District Courts, the work of the Judicature Commission and the rise of the Judicial Council movement throughout the country. We are still in the midst of this period, which really, as I have said, traces back to about 1860.
Naturally, Boston, as the capital city of the Commonwealth and one of the large cities of the country, has been the center of much of this legal activity, a sort of laboratory in which many of the experiments in all of these periods were first developed. More than half of all the litigation in the Common- wealth is heard in the various courts functioning in the Suffolk County Court House on Pemberton square.
In 1859 and 1860 Benjamin F. Butler was largely responsible for the passage of two statutes of far-reaching effect, one a very good one and the other a very bad one.
The good one was the Act of 1859 creating the Superior Court in place of the old Court of Common Pleas. This court was well planned, beginning with ten justices, including a chief justice, and, as already pointed out, developed into the great trial court of the Commonwealth. It now consists of thirty-two justices, including the chief justice. There have been six chief justices of this court since its creation. The first was Charles Allen, of Worces- ter, who, after about ten years of service, was followed in succession by Seth Ames, Lincoln Flagg Brigham, Albert Mason, John A. Aiken and Walter Perley Hall, the present chief justice.
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The bad statute which Butler put through consisted of a single sentence inserted in the general revision of the laws of 1860 .* This sentence, which has remained on the statute book ever since that time, provides that -
The courts shall not charge juries with respect to matters of fact, but they may state the testimony and the law.
This statute, as thus far interpreted by the Superior Court, in which all jury trials take place, to mean that the judge must not express his opinion about the facts to the jury, even if he explains to them clearly that they are not bound by his opinion, has obviously "muzzled" the only trained and impartial mind which is provided by the public to assist the jurymen in reaching a just result. Before 1860 there was no such restriction on Massachusetts judges or jurymen. The whole theory of jury trial is based on the assumption that the jurymen have sufficient intelligence and independence of mind so that they will not be overawed by the views of a judge, but can be trusted to listen to such views, appraise them for what they are worth and then make up their own minds. Moreover, the ability to think and talk fairly about the facts of the case and to marshal them in a logical order seems one of the natural qualifications to be expected of judges.
Without intending to exaggerate its importance, it may be assumed that a statute which forbids judges to meet this natural responsibility has neces- sarily weakened the bench to some extent and deprived jurors of assistance which they might properly expect. The peculiarity of the restriction is further emphasized by the fact that the judges of the United States Courts, sitting in the Post Office Building, have been left free to assist the jury by discussing facts, if they thought it would help them, and justice is certainly as fairly administered in the United States Courts as in the Superior Court. Curiously enough, the constitutionality of this statute of 1860 has never been fully pre- sented before the Supreme Judicial Court. It seems clear, under the opinions, that if Congress should attempt to pass any such statute in regard to the United States Courts, it would be held unconstitutional as an interference by the Legislature with a purely judicial function .ยก Mere lapse of time does not cure a constitutional defect. The question may still be open in Massachu- setts. Meanwhile, we pay the price of an unbusinesslike practice.
BENJAMIN R. CURTIS
I have said that the present period in the history of our courts begins with 1860 rather than 1880. It will scarcely be counted a digression, then, if I refer to a famous episode which occurred soon after the Civil War.
In 1868 it fell to the lot of a Boston lawyer to protect the government of the United States against an impending calamity. It was not his first appearance on the stage of our national life. In September, 1851, Benjamin Robbins Curtis, then only forty-two years old, but already a leader of the Boston
* For Butler's explanation of his reasons for this statute, see Massachusetts Law Quarterly for January, 1926, page 66.
t See Patton v. U. S., 281 U. S. 276, at page 280.
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bar, had been appointed a Justice of the Supreme Court of the United States. He served for six years with great ability and became nationally known as the author of the dissenting opinion in the Dred Scott Case.
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In 1857 Curtis resigned, mainly because his salary was not sufficient to permit him to live in Washington and educate and support his family. In 1868, however, he was drafted, against his wishes, for another public service. Because of his power of statement, his scholarly attainments and his impressive character and personal dignity, he was asked to act as leading counsel in the defence of President Johnson against the impeachment proceedings. He accepted the invitation, serving without compensation as a matter of public duty. Recent biographers and historians have rescued the reputation of Andrew Johnson from the mountains of abuse under which it was buried and resurrected much of the political and intellectual drama of those days. There was never any legal foundation for the impeachment, but the Senate was politically "stacked" and the impeachment was lost by only one vote, the minority consisting of the Democratic senators and seven Republicans. While fully appreciating the services of the other counsel for the President, and espe- cially Messrs. Evarts and Groesbeck, we believe that the controlling motive in the minds of the minority senators was a conscientious regard for their position as judges, whatever their leanings might be as political representatives, and that the mind and character of Benjamin R. Curtis, with his explanation of the judicial position of the Senate in answer to the political argument of Benjamin F. Butler, who opencd for the prosecution, held enough senators to their judicial oaths to defeat the impeachment.
Perhaps Massachusetts has never been more impressively represented than in that argument, when one of her sons from Boston successfully defended the nation against itself, in an attack which was largely led by other sons of New England, for even Thaddeus Stevens of Pennsylvania, the leader of the impeachers, was born in Vermont.
THE LAW SCHOOL MOVEMENT
About 1870 a movement began in the Harvard Law School which stimu- lated legal education in America to an extraordinary degree. The school, established in 1817 and beginning its really effective work in 1829, when Judge Story and John Hooker Ashmun were appointed professors, had followed the lecture method of instruction. Under this method the professors lectured and the students listened. This was the orthodox method of learning law. When Charles W. Eliot became President of Harvard College, he tried a bold experi- ment in the Law School by appointing, as its first dean, a man who did not believe in the lecture method. He believed that the way to teach law was to teach the students to think for themselves, to do their own reading and then discuss what they had read in a class conducted on the Socratic method. Every man was thus required to test the reasons for the law, to examine principles as well as precedents. This innovation caused a storm of protest and criticism among Boston lawyers and among most of the students in the school. Dean Langdell paid no attention to the protest or the criticism, but simply conducted
REPRESENTATIVE BOSTONIANS
HORACE GRAY CHARLES S. SARGENT WINSLOW HOMER MOORFIELD STOREY REGINALD H. FITZ
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FIFTY YEARS OF BOSTON
his courses for such students as wished to come to them. For the first six months or so there were only six or seven who had the courage to do so, but among this group were such men as James Barr Ames, Langdell's greatest pupil and his successor as dean, who stood in the first rank as a teacher of law; Franklin G. Fessenden, later a judge of the Superior Court of Massachusetts for thirty years and subsequently for six years a member of the Judicial Council; Austen G. Fox and Edward Q. Keasbey, later leading lawyers in New York and New Jersey respectively; James J. Myers, later speaker of the Massachusetts House of Representatives, and Francis Rawle, later a president of the American Bar Association.
The reason for the ultimate success and influence of Langdell's method was stated to the writer by Judge Fessenden not long before his death. He said that during the storm of criticism in the first year President Eliot asked him to come to see him and inquired what he, as a student, thought about Langdell's methods. Judge Fessenden told him that, while he could listen to other professors read their lectures or read from their books on some topic, he had learned to read himself before he came to the school and could read everything they told him without attending the lectures at all. But when he went into Mr. Langdell's course he got something that he could not get in any books, to stimulate his mind to a better understanding of what he was studying.
Now the Socratic method of teaching requires inen of character and think- ing capacity sufficient to stimulate students. During the next twenty years Langdell was fortunate in having among his colleagues such men as Ames, James Bradley Thayer, John Chipman Gray and others of similar caliber. Ames was appointed to teach as soon as he left the school without any experi- ence in practice whatever - a fact which again shocked the Boston bar into sneering criticism from which they eventually recovered. Thayer and Gray went from practice to teaching, Gray continuing his practice as well as his teaching for the rest of his life. These men were won over to Langdell's method and helped him to develop it. They formed the nucleus of the faculty of the reno- vated Law School and all of them became legal scholars of international repu- tation. In twenty years Langdell's method had spread to other schools throughout the country.
Partly, if not largely, as a result of the criticism and revolt against Lang- dell's course, members of the Boston bar and some of the teachers at the Har- vard Law School turned to Boston University and assisted that institution in establishing its law school. Among these inen was Edmund H. Bennett, who had been a lecturer at Harvard. He had been judge of probate in Bristol County and was a man of strong character and engaging and influential per- sonality. He joined the faculty of the new school, became its dean in 1877, and spent the rest of his life in its service as the great figure in its early history. Among the leading figures in the history of this school have been Professor Melville M. Bigelow, Samuel C. Bennett, Judge A. R. Weed of the Superior Court, all of whom acted as deans, and the present dean, Homer Albers. This school has trained many of the justices of all the courts of Massachusetts and many leaders of the bar. The Harvard Law School is national in its scope and feeds the bar of all the states in the Union. Boston University Law
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Sehool, while it also sends graduates to different parts of the country, is pri- marily engaged in training men who praetise in Massachusetts or adjoining New England states.
About 1900 the evening law school movement began to attain large pro- portions and first the Northeastern, formerly the Y. M. C. A., then the Suffolk, and then the Portia Law School eame into existenee as evening schools, the Portia School being exelusively for women. Within the last year or two a new law school has been established in eonneetion with Boston College. The development of these sehools has been a source of considerable controversy, and their effects upon the bar are matters about which there is a marked differ- ence of opinion. The funetion of such sehools is to offer the opportunity to study law to those who have to earn their living during the daytime in other occupations. Obviously the amount of time and strength available for legal study at an evening law school is limited as compared with that at the day law sehools. Some of the students in some of these sehools have no more than a high school training and some have not had even that before they begin to study law. The new Boston College School, however, has started out with the requirement of a college training before entering the school; and the other sehools referred to are gradually inereasing their requirements.
EQUITY JURISDICTION
The rules of equity developed in England gradually during a long period. They were intended to modify the strietness of the rules of the common law as applied to changing conditions in a growing community, and many compli- eated problems are dealt with under the equity rules which could not be dealt with at all under the rules of law administered through jury trials. Owing, however, to a eurious prejudice, which dates back to 1692 in Massachusetts, these rules of equity were not fully recognized here until 1877. Some of them had been gradually recognized by suceessive statutes, but because of the exist- ing prejudiee and because most of the equity business was confined to the metropolitan distriet, the Massachusetts bar was still relatively unfamiliar with the rules of equity and equity procedure. In 1877 the last remaining restrictions on equity jurisdiction in the Supreme Judicial Court were removed by the Legislature and in 1883 the Superior Court was also given jurisdietion to decide equity cases. At that time most of the judges of the Superior Court were more or less unaequainted with equity practice, but gradually, as a result. of the work of Judge P. Amory Aldrich, Judge Braley, Judge Fessenden and Judge Sheldon, sitting for the most part in the Equity Court in Boston, this branch of practice became better understood by both the beneh and the bar and the opportunities which it afforded for a better administration of justice, largely unavailable before that time, were developed for the benefit of the publie.
CRIMINAL PROCEDURE
The technicalities of eriminal procedure had their origin for the most part in the excessive severity of the penalties for minor offenees, both in England and to some extent in this country, which led judges to piek flaws in procedure
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FIFTY YEARS OF BOSTON
in order to avoid the perpetration of injustiee. For many years they have been the subject of criticism and we still hear such criticism. It is said that niee distinctions intended to proteet the innocent actually serve to shield the guilty. But, while our eriminal system is not yet perfeet in Massachusetts, much of the older teehnieality was done away with by statute in 1900 as a result of a study by Judge Fessenden and the report of a commission consisting of Judge Sheldon, then of the Superior Court, Frederic E. Hurd and Professor Joseph H. Beale.
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