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 12
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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
PROBATION
Another weakness of our punitive system was the mixing of prisoners of all kinds in erowded penal institutions, which resulted in turning them into sehools for crime, so that many of the prisoners were less fitted for life when they got out than when they went in. The modern idea of probation as a remedy for this was developed largely in Boston. 'While it is commonly sup- posed that the first experiments in probation emanated from the State Legis- lature, as a matter of faet what the Legislature did in the early 70's was simply to create funds for the employment of probation offieers in the lower eourts. Praetieal experiments with the probation system had been going on in Boston for thirty or forty years, beginning probably with those of Judge Peter Oxen- bridge Thacher, who sat in the old Boston Municipal Court from 1823-43. It was the experience of Judge Thacher and his suceessors, and of the friendly persons who in those days aeted as volunteer probation officers, which finally led to the development under statutes of the probation system, which has spread all over the country.
THE JUVENILE COURT
Following out the same ideas that led to the probation system, the eom- munity gradually realized the absurdity of dealing with juvenile offenders by the same methods that were applied to older persons. Aceordingly, about the beginning of this century, the Legislature provided a special procedure for offenders under seventeen years of age, and in the central district of Boston a speeial eourt, known as the Juvenile Court, was ereated as an experiment. Under the administration of the first judge, Harvey H. Baker, and his sue- cessor, the present judge, Frederiek P. Cabot,* this eourt has beeome recognized throughout the country and abroad as a leading influenee toward more intelli- gent methods of dealing with wayward boys and girls. In connection with the work of this court, and largely through the efforts of Judge Cabot, funds were raised to establish, in memory of his predecessor, the Baker Foundation, which provides a elinie for the physical and mental examinations of juvenile offenders, to assist the judge in deeiding what disposition of each ease is best for the good of the ehild as well as for the protection of the community.
THE DISTRICT COURTS IN BOSTON
The distriet eourt system of Massachusetts gradually grew out of the old praetiee under which small eases were heard by justiees of the peace. As the
* EDITORIAL NOTE .- Judge Cabot died January 6, 1932. His successor is John Forbes Perkins.
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community grew, various loeal district or municipal eourts were ereated in different eities and towns throughout the state. In course of time there have developed seventy-three of these eourts. Eight of them are in Boston and one of these, the Municipal Court of the City of Boston, created in 1866, has sinee developed into one of the most important courts in the Commonwealth, with a larger amount of business than any other eourt. While it is elassed for some purposes as a "district court," it differs from all the other distriet courts in that it now has a chief justice, eight associate justices and eight special justiees. The other distriet eourts in Boston are located in Charlestown, East Boston, South Boston, Dorchester, Roxbury, West Roxbury and Brighton. The dis- triet eourts come in contaet with more members of the community than any other eourts because of the large number of small eases which are brought into them, and, for this reason, they represent the Massachusetts judicial system in the minds of many citizens who seldom, if ever, get into the other eourts. Because of this faet there is a constantly growing appreciation on the part of the publie of the importance of developing those courts as more responsible tribunals administered by men of high eharaeter and proved capacity. They have jurisdiction over all misdemeanors, except libel and conspiracy, and they have the power to hold those charged with more serious offenses for the grand jury. Their civil jurisdiction, beginning with suits involving $300 or less, was gradually extended to cases involving $3,000, and in 1929 the financial limit was entirely removed. A suit for any amount may now be brought in any of these eourts and tried there if the defendant does not exereise his right to remove it to the Superior Court.
This gradual inerease in the responsibility of these courts has resulted largely from the construetive work of Chief Justice Wilfred Bolster of the Municipal Court of the City of Boston, who has served as Chief Justice of that court since 1904. He has been one of the outstanding administrators in the judicial history of the Commonwealth and the court system developed under his administration has been carefully studied in other parts of the country. As a result of a report of a commission of which he was chairman in 1912, the old system of appeals in eivil eases, by which parties were able to have double trials on the faets, was done away with as an experiment in this eourt. The experiment worked so well that in 1922 the Legislature abolished sueh double trials in all the other distriet eourts of the state and established, generally, the present system, under which, if a man brings suit in a distriet court, it is tried there unless the defendant removes it. There is no appeal on the facts, but an appellate division has been created to hear appeals on questions of law. This change has avoided mueh delay and waste of time and money for the litigants and the publie.
THE LAND COURT
In 1898 the Land Court was created as a special court to deal with the technical problems affeeting titles to land. While it began mainly as a court for the registration of titles in order to facilitate the development of land which was unmarketable because of uneertainties of title, the effective and sueeessful administration of the court and the convenience of having a tribunal of specialists in land law has resulted in the Legislature's gradually transferring to it almost
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all litigation about land. In the thirty-two years of its existence there have been five judges, three of whom are still serving, Hon. Charles Thornton Davis, Hon. Joseph J. Corbett and Hon. Clarence C. Smith. Judge Davis has served on the bench and Judge Smith has served, first as recorder and then on the bench, during the entire period from the ereation of the court; Judge Corbett has served for the past fifteen or twenty years. The work of these three men in building up this new tribunal and establishing it as a convenient medium of justice enjoying the confidence of the public has been an outstanding story of constructive publie service. Some members of the bar, unfamiliar with the subject and unaware of its importance, as well as some officials at the State House, seem to regard the Land Court as a sort of administrative body of an inferior character, whereas, in fact, it is more like a branch of the Superior Court, with a separate name and organization, charged with the duty of hearing and deciding some of the most difficult questions of law and faet that arise in the Commonwealth. It is time that the bar and the public alike should appreciate the real value and position of this court, the use of which has been constantly increasing.
THE FEDERAL COURTS
During the period covered by this chapter the United States Courts in the first eircuit, which comprises Maine, New Hampshire, Massachusetts and Rhode Island, were reorganized by Congress with a district court in each of the four states and a Circuit Court of Appeals for the whole eircuit. This cireuit court serves as a court of last resort, except for such eases as are ordered to Washington for further hearing by the Supreme Court of the United States. As the greater part of the business arising in the eircuit is heard in Boston, there are three distriet judges in the Massachusetts district, Hon. James M. Morton, Hon. James A. Lowell and Hon. Elisha H. Brewster. Of the members of the higher court - the Circuit Court of Appeals - who have served sinee its ereation in 1891, four eame from the Boston bar, Franeis C. Lowell, William Sehofield, Frederic Dodge and George W. Anderson, who has only recently retired .*
THE CONSTITUTIONAL CONVENTION OF 1917
In 1917, in the midst of the war, occurred the fourth constitutional eon- vention in the history of Massachusetts, the last previous convention having taken place in 1853. This body sat through the entire summer and through a portion of the summer of 1918, and submitted twenty-two amendments (inelud- ing the initiative and referendum amendment), all of which were ratified by the people. Many members of the Boston bar served in this convention, includ- ing the present Secretary of the Navy, Charles Franeis Adams, and his unele, Brooks Adams, both of them descendants of John Adams, the man who drafted the original Massachusetts Constitution in 1779.
THE JUDICIAL COUNCIL MOVEMENT
About twenty-five years ago a movement began, which gradually gained force throughout the American bar, for the closer study, not merely of sub-
* AUTHOR'S NOTE .- Judge Morton was appointed circuit judge in his place and Hugh D. Mclellan of Boston was appointed district judge in place of Judge Morton in January, 1932.
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stantive law, but of the business administrative side of the law; in other words, the organization and functioning of courts and the adaptation of rules of practice and procedure to modern conditions. Addresses, lectures, books, formal dis- cussions and an increasing amount of conversation among lawyers dealt with the subject. Gradually the agitation bore fruit in constructive plans for more careful and consecutive study. The American Judicature Society, financed by a Michigan lumberman, contributed very largely to the development of this movement through its journal, which was widely circulated. The state law magazine movement, receiving its inspiration largely from the writings of Dean Wigmore of Northwestern University, a graduate of Harvard and the Harvard Law School, stimulated discussion of such problems. In November, 1915, the "Massachusetts Law Quarterly" was established by the Massachusetts Bar Association as a medium for the discussion of local problems. Finally, in 1919, the Legislature provided for a commission of three men to study and report on the operation of the entire judicial system of Massachusetts. The members of this commission were Henry N. Sheldon of Boston, a retired justice of the Supreme Judicial Court, Addison L. Green of Holyoke, subsequently president of the Massachusetts Bar Association, and George R. Nutter of Boston, subse- quently president of both the Boston and the Massachusetts Bar Associations.
The first report of the commission was devoted entirely to a recommenda- tion for informal procedure in the district courts in the hearing of small claims, not exceeding $35 in amount. Isolated sinall claims courts had been in effective operation in various parts of the country before that time and a careful study of them had been made by a young Boston lawyer, Reginald Heber Smith, who had served for five years as general counsel for the Boston Legal Aid Society. In this field he has undoubtedly exerted more influence throughout the country, by his continued interest in the subject, than any other individual. Mr. Smith has been for some years the chairman of the committee of the American Bar Association on legal aid for poor persons. His report, dealing with all aspects of litigation among the poor, was printed by the Carnegie Foundation under the title, "Justice and the Poor," and attracted widespread attention. The Massa- chusetts Judicature Commission believed that, instead of isolated small claims courts, there should be a procedure established in all the district courts of the state under which the parties could be summoned in promptly and inexpensively and the case heard and settled by the judge without the expense of lawyers. Its recommendation to this effect, the first of its kind in the country, was adopted by the Legislature in 1920.
In its second report, filed a year later, after presenting a picture of the various parts of the judicial system and making a number of recommendations for changes in procedure, the Judicature Commission advocated the creation of a Judicial Council. Up to that time special commissions, or legislative com- niittees, had been appointed at intervals of ten or fifteen years to study the judicial system or some part of it; a report was made, some of the recommenda- tions, perhaps, adopted, and the rest forgotten, until another similar body was created to begin over again. There was no continuity of study and, in between commissions, the development was left largely to the interest and initiative of individual members of the bar or of the bench. The Judicature Commission believed that a subject so large as the judicial system and its methods of operation
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under modern conditions, could not be adequately studied in any such casual manner. They, therefore, recommended the creation of a permanent unpaid body of judges and members of the bar, selected from time to time, for the continuous study of the system and its results. For lack of any better namnc they suggested the name, "Judicial Council," for this body. This Council was to consist of five judges from different courts and four members of the bar, and it was to make an annual report on the working of the system, with recommenda- tions, to the Governor of the Commonwealth.
About the time this report of the Judicature Commission appeared, Con- gress, on the recommendation of Chief Justice Taft, had created the Judicial Conference of the senior Judges of the United States Courts for the continuous study of problems in the Federal Courts. This body, however, consisted wholly of judges. The Massachusetts recommendation of a body, representative not only of the bench but of the bar, which is just as much a part of the judicial system, attracted attention throughout the country. Ohio was the first state to adopt the suggestion. In 1924 the Massachusetts Legislature created the Massachusetts Council. Since that time the Judicial Council movement has spread over the country; there are now between fifteen and twenty such bodies in different states and the idea is being considered quite generally in other states. It is not too much to say that the creation of these bodies is evidence of a wide- spread movement throughout the American bar, reviving among the profession the sense of responsibility for the improvement of the administration of justice.
Just as the Judicature Commission had been fortunate in having for its chairman the late Judge Sheldon, the Judicial Council of Massachusetts started its work under the inspiring influence of the late William Caleb Loring of Bos- ton, another retired justice of the Supreme Judicial Court, who, in spite of ill health, threw himself into the work with energy and enthusiasm. The Council has made seven annual reports, the last appearing in December, 1931. Soon after its creation, the Legislature began the practice of referring various problems to it with a request for study and recommendations to be made in the next annual report. This practice has been continued almost every year, so that, although many of the recommendations of the Council, particularly upon certain controversial subjects, have not been adopted, many others have been, and its disinterested work has received appreciation and produced results.
The developinent of the judicial system, as pointed out by the Judicature Commission, may often involve changes in judicial practice as well as in habits of thought on the bench, at the bar and in the community. It must, there- forc, be gradual, and part of the value of the work of a Judicial Council lics in the preparation of carefully considered plans on one subject after another which, even if they are not immediately adopted, are ready for consideration when the time comes in the legislative mind for dealing with a particular sub- ject. The plan reported may then be taken up, reconsidercd, and often improved, in the course of discussion before the judiciary committee of tlie Legislature.
FAMOUS TRIALS
Space will not permit a detailed account of the leading trials in Boston in the last half-century but a few should be mentioned as part of the history
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of this period. The trial of Thomas Bram for the murder of three persons on the high seas in 1896 took place in the United States District Court. The ease was tried twice, the first time by United States Attorney Sherman Hoar, and the second time by his successor, Boyd B. Jones. At each trial the defend- ant was ably represented by James E. Cotter and Asa P. French, but the result was a conviction. The case was most unusual because of the fact that every surviving person on the "Herbert Fuller," the ship on which the murders were committed, took the stand and testified before the jury, so that the jury knew that one of the persons who appeared before it had committed the murders. Bram was pardoned later and resumed his occupation as a seaman. An interest- ing reference to his recent appearance in Boston will be found in Mr. Homans' article in this book.
In the summer of 1916 and the following winter occurred two trials which were unique in the history of Massachusetts. They were petitions for the removal of the district attorneys of Middlesex County and Suffolk County for miseonduet in office, and, under the statutes, they took place before the full bench of the Supreme Judicial Court, with Chief Justice Rugg presiding in each ease. Both eases lasted for several weeks and in both cases the distriet attorney involved was removed from office by the unanimous judgment of the court. In 1929 an attorney-general of the Commonwealth resigned while under impeachment charges and was disbarred by the Supreme Judicial Court for the conduet which had formed the basis of his impeachment.
The most famous ease of all, the Saeco-Vanzetti trial, took place in Nor- folk County, but the later proceedings took place in the Boston courts. The principal attorneys for the defence in these later proceedings, William G. Thomp- son and Herbert B. Ehrmann, were prominent members of the Boston bar. The defence at the original trial in Dedham had been conducted by a lawyer from California.
LEADING LAWYERS
Space will permit only a partial list of the leading members of the Boston bar during the period covered. Sydney Bartlett, who was a partner of Lemuel Shaw before Shaw was appointed Chief Justice in 1830, continued in active practice as the acknowledged leader of the bar until his death in 1891. Richard Olney was Attorney-General and Secretary of State under President Cleveland. Moorfield Storey was at one time president of the American Bar Association. Frederick P. Fish, who died recently, was the leading patent lawyer in the United States. Charles F. Choate, Jr., a kinsman of Rufus Choate, had few superiors in the country as a trial lawyer. Sherman L. Whipple, his frequent antagonist, was attorney for the plaintiff in the Willett case, the longest civil trial in Massachusetts history. Alfred Hemenway, John L. Thorndike, Francis Balch, William G. Russell, Lewis S. Dabney, Robert M. Morse, Samuel J. Elder, Charles W. Bartlett, Eugene Bolles, Thomas J. Gargan, Henry F. Hurl- burt, Thomas M. Babson and others were outstanding figures in various lines of legal activity, -- not to mention men of equal character and ability who are still alive. Among scholarly writers on law not already mentioned reference may be made to Charles Warren, whose work, "The Supreme Court in United
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States History," received the Pulitzer prize in 1923, Frederic J. Stimson, Samuel Williston, Joseph H. Beale, Roscoe Pound and others holding ehairs in our law schools.
The various members of the bar who were in active service during the World War are too numerous to mention, but several leaders of the Boston bar were drafted for European service after the war. Roland W. Boyden and Thomas Nelson Perkins were called on for distinguished service in connection with problems of readjustment and reparations and Jeremiah Smith, Jr., was made Commissioner General of Hungary with absolute power over the finances of the country. Mr. Smith served with distinction for two years in this exceed- ingly difficult position, refusing all compensation at the close of his serviee.
THE MASSACHUSETTS MEMBERS OF THE SUPREME COURT OF THE UNITED STATES
Boston and Massachusetts generally have contributed many distinguished men to the national service, among them seven members of the Supreme Court of the United States, three of whom had been Chief Justices of our State Supreme Court. Beginning with William Cushing, the first active Chief Justice of Massachusetts and one of the first men appointed by President Washington in 1789, who refused the Chief Justiceship in 1796, the line ineludes Joseph Story, who served from 1813 to 1845, Benjamin R. Curtis, already mentioned, who was appointed directly from the bar, Horace Gray, Chief Justice of Massa- chusetts, who was appointed in 1882 and served in Washington for twenty years, William H. Moody, Attorney-General of the United States under Presi- dent Roosevelt and subsequently for a few years a Justice of the Supreme Court, and two present members of the court, Louis D. Brandeis, appointed from the bar by President Wilson, and Oliver Wendell Holmes, who had also been Chief Justice of Massachusetts and was appointed in 1902 to succeed Judge Gray. Mr. Justice Holmes is still active and vigorous in the performance of his duties at the age of ninety-one, after a continuous service of forty-nine years since his original appointment in 1882 as an associate justice of the Supreme Judicial Court of Massachusetts .* He is one of the remarkable figures in the judicial history of the country.
This reference to Judge Holmes is perhaps a fitting climax to a brief out- line of the legal history of Boston during the period covered. Lack of space prevents any more detailed account of many men and many happenings which have contributed to that history. The profession in Massachusetts has had its ups and downs, like all other branches of human endeavor. Local pride does not justify any exaggeration of its importance. Our national life is the result of the experiments with local self-government in forty-eight state labora- tories, and in valuing the contributions of different communities we must always remember that "one star differeth from another star in glory." What- ever have been our faults and failures, it is still true that the work of the legal profession in Massachusetts is studied with interest and attention in other parts of the country, and that the influence of that work, and of the thinking and effort which go into it, is still strong.
* EDITORIAL NOTE .-- On January 12, 1332, Judge Holmes, yielding at last to the burden of advancing years, submitted his resignation to President Hoover.
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JOURNALISM
By ROBERT LINCOLN O'BRIEN
In no comparable eity in the United States have the daily newspapers adhered so closely to the old traditions, or continued with so little disturbanee the organization and ownership of a half-century or so, as in Boston. Else- where this is an age of newspaper consolidation. Great eities, like Pittsburgh, St. Louis, Denver, Louisville, Detroit, now have but a single morning newspaper, while Boston maintains four, as it did in 1880, when Mr. Justin Winsor's monu- mental compilation brought the faets up to that date.
The greatest change here has come in the publieations of less frequent issuanee than daily. In 1880 there were four semiweekly newspapers pub- lished here, sixty-three weeklies, four fortnightlies, ninety-three monthlies and ten quarterlies. No such figures could be given for 1930. The larger eity has a smaller or, at any rate, a less varied output. When one considers that that was a day of hand composition and so, theoretically at least, printing was much more expensive than in this meehanieal age, it is quite remarkable that the typesetting machines and corresponding deviees in other parts of the eraft should have resulted in this eurtailment of the produet. The explana- tion, of course, lies in the advertising, which supports the modern publieation. This as a rule depends on mass eireulation, which has grown enormously, and the quiek results which the daily gives. Moreover the daily of 1930, especially in its Sunday editions, has absorbed many of the features of the weeklies and monthlies of fifty years ago, and bids against their sueeessors for the patronage of thoughtful readers.
Perhaps the most distinctive of Boston's newspapers is the one of smallest eireulation - the Evening Transcript - whose history happily eoineides with that of the eity itself. It was founded in 1830 and in 1930 celebrated its een- tenary by the issuanee of a historieal volume from the pen of the gifted Joseph Edgar Chamberlin, which should be read by all persons interested in journalism. The property has belonged in the period under review to the Dutton heirs. Mr. Samuel P. Mandell, whose wife was one of the daughters of William Dutton, was long president of the company. His descendants and those of Mr. William Traey Eustis, who married another daughter, are the present owners of the property. The real management for the greater part of this half-century has rested in the hands of George S. Mandell, a vigorous, outstanding journalistie leader. Under him, during this period, have been five editors, Edward H. Clement, who retired in 1906; Robert Lineoln O'Brien, who went to the Herald in 1910; Frank B. Traey, whose eareer proved short on aeeount of ill-health; James T. Williams, Jr., now the head of the Hearst Editorial Service in Wash- ington, and Henry T. Claus, the present ineumbent.
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