USA > Massachusetts > Suffolk County > Boston > Metropolitan Boston; a modern history; Volume I > Part 29
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Such is the practical historical background of the system which our constitution describes as "a government of laws and not of men," under which the lawyers of Massachusetts perform their functions.
Early Conditions of Practice-For about twenty-five years after the Revolution all jury trials took place before at least three judges of the Supreme Judicial Court, there was an appeal to a second jury trial, and proceedings were crude and dilatory especially as the judges had to travel all over Massachusetts and Maine on horseback or in carriages.
The new experiment of jury trials in civil cases before one judge of the Supreme Judicial Court came at about the time of the resignation of Chief Justice Dana in 1806, and Governor Strong appointed Theophilus Parsons chief justice (without previous notice to him) to "break in" the new system. With him the modern administration of justice began, and in his six or seven years of service he made the lawyers think harder and talk less than they had been accustomed to do before.
In 1820 the separation of Maine from Massachusetts led to the con- stitutional convention of that year. A number of the judges and leading
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lawyers were members of the convention, and Chief Justice Parker presided.
Eleven constitutional amendments were submitted by this body, of which nine were adopted by the people.
In 1832 a commission was appointed to make the first general re- vision of the Statutes of Massachusetts. Charles Jackson, who had been a justice of the Supreme Judicial Court from 1813 to 1823 (and who was a grandfather of Justice Oliver Wendell Holmes of the Supreme Court of the United States), was chairman of this commission. Also, in 1830, Lemuel Shaw was persuaded by Daniel Webster to accept the appoint- ment by Governor Levi Lincoln to the Chief Justiceship of the Supreme Judicial Court and begin his long service of thirty years in expounding the common law and constitutional law of the State.
The intellectual influence of Story's law books, of the revision of the statutes by Jackson and his associates, Asahel Stearns and John Picker- ing, and the practical administration of the law by Shaw and his associ- ates was such as to stabilize the whole government of the Common- wealth and inspire respect for professional standards from that day to this. The strong and then growing epidemic for codifying everything in statutory form subsided here and went elsewhere to cause later troubles in other States. Massachusetts has remained a common law State with all the advantages of that system of principles in meeting changing conditions.
The Chief Justices of the Supreme Judicial Court since the resigna- tion of Shaw in 1860 have been :
George T. Bigelow
1860-1868
Reuben A. Chapman. 1868-1873
Horace Gray (Appointed to the Supreme Court of the United States in 1882) .
1873-1882
Marcus Morton
1882-1890
Walbridge A Field ..
1890-1899
Oliver Wendell Holmes (Appointed to the Supreme Court of the United States in 1902)
1899-1902
Marcus P. Knowlton.
1902-19II
Arthur P. Rugg.
19II-
Thus far we have outlined the story of the Supreme Judicial Court because in the earlier days that court was not only the court of last resort, but for many years the great trial court of the Commonwealth, the lower courts being little more than petty tribunals composed of jus- tices of the peace.
Judge Thacher and the Beginning of the Probation System-A Mu- nicipal Court for criminal cases to be tried before a single judge with juries was established in Boston early in the century, however, and in 1823 Peter Oxenbridge Thacher began a service of twenty years in this
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court during which period he established a solid reputation as an admin- istrator of criminal law. The single volume of Thacher's "Criminal Cases" is still an authority of importance.
In the current discussions of criminal remedies the system of proba- tion is attacked and defended, but the history of its gradual develop- ment is generally forgotten.
The practice of probation in dealing especially with young offenders, which was first developed in Massachusetts and has since spread over the country, was begun as a judicial experiment by Judge Thacher about forty years before the Legislature took it up and provided for it on a larger scale with the assistance of probation officers .*
The Constitutional Convention of 1853-In 1853 another constitu- tional convention was called as a result of a political coalition between Democrats and Free Soilers in the reaction against the Whigs following the "Compromise" of 1850 in Congress. While politics always influence such bodies, it was, perhaps, the most politically controlled of all the conventions. A number of leading lawyers were members: Rufus Choate, R. H. Dana, George S. Hillard, Henry Wilson, George S. Bout- well, Benjamin F. Hallett, and B. F. Butler, then a young man. It pro- posed a number of changes including a provision' to substitute ten-year terms for judges in place of tenure during good behavior. Supported by Butler, Hallett, Henry Wilson, Boutwell and others, this was opposed by Choate, R. H. Dana, Hillard and others, and was the occasion of a famous debate, including the greatest effort of Choate's life in his famous speech in favor of the independence of the judiciary.
The convention tried to "put over" its amendments by covering them up in a whole revised constitution which was submitted, thus violating the first principle of fairness announced by Charles Jackson in the con- vention of 1820, when he said :
That it would not be a fair exercise of the powers of the convention and would not be doing justice to their constituents unless every proposition were submitted separately for their adoption or rejection.
The redraft of the Constitution, as well as certain amendments sep- arately submitted, was defeated at the polls. While the convention as a whole made a poor exhibition of itself, many of its debates have been valuable for subsequent students of government. In an account of this convention before the Massachusetts Historical Society in 1904, Mr. James Schouler said :
*See "Probation as an Orthodox Common Law Practice in Massachusetts Prior to the Statutory System," Mass. Law Quart. for Aug., 1916.
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It has generally been conceded by the friends and foes alike of this distinguished body that the total failure of its work at the elections which followed .... was due most of all to the unwise and unexpected attempt to change the judicial tenure .*
Equity Jurisdiction-The Supreme Judicial Court was not given full jurisdiction in equity until 1877. The reason for this was the common prejudice against trusting judges with power, and the result in practice must have been that a very considerable amount of injustice was allowed to go on without adequate remedy for a very long period. The story is a curious one.
For those readers of this chapter who are not lawyers it should be explained that in the earlier days of the English Government, from which we naturally inherited our system of law, the common law in regard to property rights developed as a system of strict rules for the protection of the legal title to property, and the law did not look beyond the strict legal title and possession. Men were expected to look after their own property, and rules which protected title and possession were considered sufficient. But as the population, and consequently the business and property interests of England grew and became more varied, people began to extend credit and to trust others with the title and possession of their property for various purposes and in various ways, and this nat- urally resulted in the development of various forms of fraud and unfair dealing for which the strict rules of the common law provided no remedy in the courts. To provide relief in such cases the King, who was the source of all power, appointed a Chancellor, who was the "Keeper of the King's Conscience" with authority under the Great Seal, of which he was the custodian, to protect persons against such breaches of trust and, gradually, in the course of centuries, a system of rules of equity grew up parallel with the common law rules and enforceable in the courts of the Chancellor. These rules were to some extent discretionary, and they were sometimes ridiculed in the old days by saying that equity "varied with the length of the Chancellor's foot."
But by the time the Province Charter was granted to Massachusetts in 1692, equity jurisdiction had begun to assume the form of a body of definite principles which have continued to develop to meet changing conditions to the present day. Accordingly, under the Province Charter the General Court of Massachusetts passed various statutes establishing courts with powers including the equity powers of the English courts. Under the charter, however, these statutes had to be submitted to the English Privy Council (of the King's Advisers) for approval, and the Privy Council vetoed these equity powers because they were afraid they would be interpreted by the Massachusetts judges in a way which would
*Mass. Hist. Soc. Proceedings, Second Series, Vol. XVIII, p. 41.
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be against the interests of the Crown. It was not until 1699, therefore, that the Privy Council approved the creation of the Superior Court of Judicature with the equity powers omitted.
Because of this prejudice of the English King against trusting Amer- ican judges with powers naturally incident to their judicial office, the Government and people of the Province of Massachusetts grew up in the eighteenth century without these powers, and by the time of the Revolu- tion, had developed a prejudice of their own against them based largely on ignorance of the nature and purposes of equity jurisdiction. Life was still comparatively simple, and they managed to get along without them, and this condition of affairs continued after the Revolution.
But soon after 1800 the better informed lawyers began to appreciate the need of equity jurisdiction for the interests of justice in a growing modern community. Joseph Story while in the Legislature before his appointment to the Supreme Court of the United States, urged the cre- ation of equity courts. Erastus Worthington wrote a pamphlet about it in 1810. But nothing happened except occasionally grants of equity powers by statutes strictly limited to provide against specified abuses. Chief Justice Parker wrote a letter to the Legislature in 1829 explaining the need of broader equity jurisdiction to enable the court to protect persons from injustice.
In 1857 the Legislature passed an act which was supposed to allow the Supreme Judicial Court to administer equity in accordance with the broad general principles which had been developing in England and else- where. But during all this period of strictly limited equity powers the bar and consequently the bench, which is recruited from the bar, had grown up without the trained study of equity jurisdiction, so that their minds did not accept readily the broader grant of power, and the statute was strictly construed until a still broader act was passed in 1877, which could not be strictly construed.
Benjamin F. Butler and the Creation of the Superior Court-After the Civil War General Benjamin F. Butler returned to the practice of law in Massachusetts. He was always a storm centre during his life at the bar and in politics, and animosities excited by him still survive. While he lived in Lowell, yet, as one of the most active practitioners and later as Governor, he was intimately connected with the professional history of the State and its capital city. Without going into the many contro- versies which he caused, or took part in, there are two measures resulting from his legislative service in 1859 and 1860 which deserve mention be- cause of their far-reaching results on the administration of justice.
With the growth of business in the State the organization and per- sonnel of the Court of Common Pleas and the experiment of a "Superior
Hm Cushing Chief Justice of Massachusetts, 1777-1789, Associate Justice, Supreme Court of the United States, 1789-1810.
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Court of Suffolk County" in the '50's were found ill adapted to the work to be done. Accordingly, in 1859, largely as a result of Butler's leader- ship as a member of the legislative committee on the subject, the Court of Common Pleas throughout the State and the Superior Court of Suffolk County were abolished, and a new State-wide court-the present Su- perior Court, was created with ten judges. The planning of this court, which has gradually been increased to thirty-two judges and has taken over practically all the trial work formerly done by the Supreme Judicial Court, was a piece of constructive legislation for which General Butler, whatever his faults, is entitled to credit.
The Superior Court-The court was given concurrent jurisdiction in equity with the Supreme Judicial Court in 1883, and in order to relieve that court because of its constantly increasing appellate work, jurisdic- tion of libels for divorce and petitions for nullity of marriage was trans- ferred to the Superior Court in 1887, and capital cases in 1891, so that for the past thirty years it has been the great trial court of the Common- wealth.
When the court was created in 1859 it consisted of ten judges, includ- ing the chief justice. With the increase of work for the court the num- ber of judges has been increased from time to time, and since 1911 there have been twenty-eight judges, including the chief justice.
There have been six chief justices of this court since its creation :
Charles Allen
1859-1867
Seth Ames (In 1869 he was promoted to the Supreme Judi- cial Court)
1867-1869
Lincoln Flagg Brigham. 1869-1890
Albert Mason
1890-1905
John Adams Aiken ..
1905-1922
Walter Perley Hall.
1922-
In these days of uncertainty as to the future of the country it is an interesting and suggestive fact which may well cause reflection on the part of those who are inclined to pessimism, that in 1808 Fisher Ames, the brilliant orator of the early days of the Commonwealth, died obsessed with fears that the excesses of the French Revolution would appear on this side of the Atlantic, and that his children must look forward to "their future servitude to the French." (See Henry Adams' "History of the United States, I, 83.) One of those children, Seth Ames, lived to be Chief Justice of the Superior Court and later a justice of the Supreme Judicial Court in the Commonwealth, which stands before the country today, as in the past, for the principles of liberty under law.
While space will not permit many anecdotes, one or two judicial stories may help to lighten this somewhat serious account.
Met. Bos .- 17
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The first illustrates the judicial impartiality of the first Chief Justice of the Superior Court. In the last year of his service during which his health was not good, he presided at a jury trial in which the late Wil- lianı W. Crapo, of New Bedford, then a young man, was counsel on one side. The verdict was against Crapo's client. Mr. Crapo not being sat- isfied with the conduct of the trial, moved that the verdict be set aside on the ground that the presiding judge was physically and mentally incom- petent. This motion was argued before Chief Justice Allen himself, who listened with great attention and, after carefully considering the matter, granted the motion for the reasons given by Mr. Crapo and then resigned from the bench.
Another story relates to Hon. P. Emory Aldrich, who was appointed to the Superior Court in 1873. Judge Aldrich was a good lawyer but somewhat irritable, and not always possessed of the judicial manners which are desirable in a judge. Henry F. Durant was his son-in-law and was counsel in a case in which Augustus Russ was counsel on the other side. It happened that Judge Aldrich was holding court when the case was about to be reached and Durant wrote to Russ suggesting that, in view of his relations with the judge, Russ might prefer to let the case go over until some other judge was sitting. Russ, who did not know that Durant was the son-in-law of Judge Aldrich, mistook his reason for writing, and is said to have written back:
"Dear Durant-I guess I hate the old cuss as much as you do, so we might as well let the case go on. I am not afraid of him."
Durant showed the letter to Aldrich, and when the case came on Judge Aldrich, noticing some embarrassment on the part of Mr. Russ, remarked : "Don't be afraid of me, Mr. Russ."
General Butler's Statute About Charging Juries-The other measure for which General Butler was mainly responsible has had a less fortunate influence. Apparently because of a grievance which he naturally felt over what seems to have been an unfair charge to a jury by one of our strongest judges (E. R. Hoar) in a case in which Butler was personally concerned, and, more directly, because of the petty arro- gance of a less competent judge of the court which General Butler had helped to abolish, he took advantage of his position as a member of the special committee of the Legislature on the General Statutes of 1860 to secure the insertion in that revision of a statute of one sentence restrict- ing the common law powers of our judges in advising the jury in regard to the facts and the evidence. The act had not been suggested for public discussion ; the commissioners who prepared the General Statutes had not suggested it ; it was simply inserted in the body of the revision by the committee and run through with some hundreds of amendments of de-
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tail. There can be little doubt that this restriction, not merely of the power, but of a most important and responsible function of our judges, has had a weakening effect on the administration of justice and the broad sense of responsibility of our judges. The power to grasp and marshal facts and evidence and present them fairly to a jury is one of the marks of a great judge. Our judges need the training and responsibility which is incidental to its exercise. Our juries need it in difficult cases and many jurymen must wonder why they are not given it when outside of a court room no body of men would think of muzzling the only trained mind that is expected to be impartial and has heard the whole story. In the Federal Courts in Post Office Square the courts have always per- formed this function to the general satisfaction of the bar when it seemed likely to help the jury, and the restrictive rule in the State courts in Pem- berton Square would be regarded as silly by laymen in any matter out- side of a court room.
Curiously enough, in all these years, the question whether the statute was an unconstitutional interference with the judicial function never ap- pears to have been fully argued before the Supreme Judicial Court, and it is, of course, uncertain what the court would decide if it were fully argued today after sc many years of practice under it. Long practice, however, does not necessarily establish validity as shown by the decision a few years ago of the Supreme Court of the United States in holding invalid the probation practice of the Federal courts which dated back to about the same time as the passage of General Butler's statute. Aside from the history of the matter it would seem only reasonable that when men are drafted from their business for the responsible work of jury serv- ice they should be given all the reasonable assistance in the work that the natural function of the judicial office can provide. The prejudice against this function on the ground that judges will dominate the jurors is not a compliment to the jurymen whom lawyers are in the habit of flattering "to the limit." The fact is that many lawyers want to have a monopoly of swaying a jury if they can. But, aside from flattery, the point of view of intelligent jurymen has had comparatively little consideration from lawyers in American practice.
Historical Outline of the Federal Courts in the First Circuit-During the Revolution :
In 1778, Congress assumed appellate jurisdiction of all maritime causes, dividing Massachusetts into three districts, Southern, Middle and Northern; the last embraced the three eastern counties, York, Cumberland, and Lincoln, and acquired a distinctive name, the "District of Maine," which it retained until the separation. . ... The General Court of Massachusetts conceded the jurisdiction to Congress, and authorized an appeal from the State Courts to that body whenever the subject of a foreign power in amity with the United States claimed a vessel or cargo captured or libelled, unless the claimant
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chose to waive the right of appeal and have a trial in the State Court. The judges of the maritime courts were judges in admiralty; and all persons charged with piracy or felony upon the high seas were tryable by any two judges of the State and the Admiralty Judge residing within it. (See "A Century of the Federal Courts of Maine," by Hon. Clar- ence Hale, 22 Maine St. Bar. Assoc. Rep.)
After the Federal Constitution was ratified, an act of 1789 divided the country into thirteen judicial districts, and these districts (Maine and Kentucky excepted) into three circuits (eastern, middle, and southern). A 'Circuit Court was created, to be held for each district, and this con- tinued until January 1, 1912, when the act took effect which abolished the Circuit Courts and transferred their original jurisdiction to the District Courts, but retained the circuit judges to exercise the appellate jurisdic- tion of the Circuit Court of Appeals and, if necessary, to sit also as judges of first instance in the District Courts.
From 1789 to 1869 (except between February, 1801, and March, 1802) the only Federal judges were the justices of the Supreme Court and the district judges. Originally the Supreme Court had six members, two being assigned to each of the three circuits. These, together with the district judges, were required to hold a circuit court in each district (except Maine) twice in each year. Two of the three had to be present. Conditions of travel were not only dangerous, but so difficult that the Supreme Court judges had to spend a very considerable part of their time traveling over the country on horseback or in public or private con- veyances. For judges of varying ages this was a serious ordeal and, as Judge Rose points out, "It is not surprising that at this period many gentlemen declined appointments to the Supreme Bench." The act of February 13, 1801, passed by the Federalists at the end of the adminis- tration of John Adams, while it relieved the Supreme Court justices by creating "circuit judges," was promptly repealed in 1802 by the Jeffer- sonians, who objected to what they termed the Federalist "midnight" judges appointed under that act.
The act of 1802 provided for six circuits, to each of which one Su- preme Court justice was assigned, he and the district judge having con- current power to hold the circuit courts alone. Naturally, as the country and the business grew, the work was thrown more and more on to the district judges. While the subject of further relieving the situation was continually discussed, nothing was done about it until 1869, when Con- gress authorized the appointment of one circuit judge for each of the circuits, then numbering nine. The circuit judge was given the powers of the "circuit justice," but the Supreme Court justices were not entirely relieved from duty as circuit justices. They were to continue to sit when they could, and a requirement that they should attend at least one term of the Circuit Court in each district during every two years re-
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mained for a long time, although it was not physically practicable for them to comply with it regularly, and it had to be generally disregarded as the burdens of the Supreme Court in Washington became greater.
In 1891 intermediate Circuit Courts of Appeal were created and the appellate jurisdiction was taken from the Circuit Courts. This left in each district two separate courts of original jurisdiction. The Circuit Courts in many circuits were ordinarily held by district judges, the cir- cuit judges devoting themselves largely to the Circuit Court of Appeals. In 1912 the Circuit Courts were abolished and their jurisdiction trans- ferred to the District Courts. The Circuit Court of Appeals may be held by two judges, but ordinarily it sits with three, as in the English Courts of Appeal. As the Supreme Court justice was seldom available for cir- cuit work and as circuit judges sometimes sat to hear cases in the first instance and could not sit on appeals from their own decisions, it was provided that district judges might be called in to make up an Appellate Court of three. (For more detailed information see Judge Rose's "Fed- eral Jurisdiction and Procedure," 2d Ed.) In 1915 Porto Rico was added to the First Circuit, so that appeals from Porto Rico are heard in Boston.
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