USA > Massachusetts > Suffolk County > Boston > Metropolitan Boston; a modern history; Volume I > Part 31
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in Boston, more than 130 causes before the Supreme Judicial Court of Massachusetts, he apparently had not appeared in a single cause before the United States Supreme Court. His reputation, like his practice, must, therefore, have been largely confined to New England. We find, how- ever, not only that the Secretary of State and the President of the United States had both thought of Mr. Curtis on the same day, and had each written to the other suggesting him as the best person to fill the vacancy, but Mr. Webster adds, in his letter to President Fillmore, that the 'uni- versal sentiment in Boston is, that the place should be filled by the ap- pointment of Mr. Curtis.' The volumes of his 'Life and Writings' explain the cause of this remarkable unanimity of sentiment. Mr. Curtis had not only a natural taste for and an inborn love of the science of law, but con- stant reading had made him a 'full' man ; . .
"His relations with his associates upon the Supreme Bench, and the duties to be performed by him as associate justice, were pleasant to an unusual degree, and he was treated by the other judges with marked respect, considering that he was so much their junior as to be familiarly called by some of them their 'little Benjamin.' When we consider that, of the seven justices who sat with him at that time, the oldest was thirty- two years older than himself, and four of the others twenty-three years older, we can understand what an unpleasant duty it was, and how much strength of character it required, to take the position which he did in his great dissenting opinion in declaring the opinion of the majority to be extrajudicial.
"Ten years after his dissenting opinion in the Dred Scott case, he rescued the Republican party from the demoralization and disintegration which, it is admitted, would have overtaken it had the impeachment of President Johnson been brought to a successful termination. The few Republican Senators who bravely resisted the party demands have frankly confessed that it was mainly due to Judge Curtis' conclusive argument that they became convinced of the illegality of the impeach- ment.
"The position occupied by Judge Curtis after his resignation from the bench of the Supreme Court was exceptional. The first judge to practice after his resignation from such a position, it required an unusual dignity and force of character to sustain the position with credit and honor to himself. His practice soon ceased to be local, and his opinions were sought by clients from all parts of the country. He argued many of the most important causes which came before the United States Supreme Court, and was listened to by the Court with marked respect and atten- tion. It has been noticed that in every case which he argued, and which was decided in his favor, the decision was based upon the grounds stated
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in his brief. For many years before his death, the writing of opinions occupied much of his time, and so much were they valued, that he became in many cases a tribunal whose decision was final."
Other Leaders of the Bar-Among the other leaders of the bar in the metropolitan district since 1860, in addition to men whose names have been mentioned in other connections, was Sidney Bartlett, who was in active practice from the time when he was a partner of Lemuel Shaw before Shaw was appointed Chief Justice in 1830, until he argued his last case shortly before his death in 1890.
Ebenezer Rockwood Hoar served as a judge of the Court of Com- mon Pleas for six years, then for ten years on the Supreme Judicial Court and later as Attorney-General of the United States in the cabinet of President Grant. While in that position the President nominated him as a justice of the Supreme Court of the United States, but he was rejected by the Senate owing to bitter personal and political feelings such as are apt to be created by a man of his exceptional force and directness in public life. He was the judge already referred to whose strong feel- ings about General Benjamin F. Butler seem to have led him to make some unfair remarks in a charge to a jury in a case in which Butler was interested (See "Massachusetts Law Quarterly" for January, 1926, p. 57). This not unnaturally caused a deep and lasting resentment in Butler, who says in his book:
I believe I have one characteristic, and that is of paying my debts. I have fully done so, I think, in this case. This particular judge, while attorney-general under Pres- ident Grant, got himself nominated to be Associate Justice of the Supreme Court, but I caused him to be rejected by the Senate; in 1876 he offered himself as a candidate for Congress against me; I published an open letter describing him so exactly, both morally and politically, that there could be no doubt of his identity (nor was the description libelous), and I beat him so that all the votes he got would be hardly sufficient for mile- stones in our district .- Butler's Book, 109.
Judge Hoar's brother, Senator George F. Hoar's account of the matter was as follows :
The person who was chiefly responsible for Judge Hoar's defeat was Mr. George F. Edmunds of Vermont. He pretended that his chief objection was that Judge Hoar did not live in the circuit to which the judge was to be assigned for duty. I do not think he deceived himself or anybody else by that statement. He told Rockwood that all objection to his confirmation would be waived, if he would agree to take up his resi- dence in the Southern Circuit; to which the Judge replied that he would not move his boarding-house across the street for any such reason .- "Ebenezer Rockwood Hoar-A Memoir," p. 197.
As to General Butler's suggestion that Judge Hoar "got himself nom- inated," the private correspondence of the judge on the subject seems to answer that.
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Judge Hoar himself accepted his defeat philosophically and when asked about it remarked: "What could you expect for a man who had snubbed seventy Senators?"
While he, like other strong men, doubtless had some of the faults incident to his strong qualities, Judge Hoar was one of the ablest and sanest lawyers that the Massachusetts bar produced. His wit is one of the traditions of Massachusetts, and there is also a tradition, probably exaggerated, that he was never overruled as a judge. Some of his terse judicial opinions have been greatly relied on by the courts, and bar.
Charles Devens, originally of Worcester but for many years a familiar figure in the Boston Court House, after serving several years as a justice of the Supreme Judicial Court of Massachusetts, resigned in 1877 to become attorney-general of the United States in the cabinet of President Hayes. On his return to Massachusetts in 1881, he was reappointed to the Supreme Judicial Court and served until 1891.
Massachusetts has contributed four judges of the Supreme Court of the United States since 1860, three of whom were of the Boston bar, Horace Gray, Oliver Wendell Holmes, William H. Moody, and Louis D. Brandeis. Gray and Holmes each occupied the position of Chief Justice of the Supreme Judicial Court at the time of their appointment to Wash- ington. Moody, primarily an Essex County man, and Brandeis, were appointed from the bar, Moody having first served as Attorney General in President Roosevelt's cabinet. Of these, Justices Holmes and Bran- deis are still in active service, Justice Holmes having served as a judge for almost forty-six years since his original appointment to the Supreme Judicial Court in 1882 at the age of about forty-two.
The list of lawyers of ability and of varying degrees of distinction in the metropolitan district in the trial of cases, as trusted advisers, as law teachers or in public life in the last half of the nineteenth century, is so long that space permits only a reference to the names of some of them who have not been mentioned in other connections :
Peleg W. Chandler, George S. Hillard, Edmund H. Bennett, Ben- jamin F. Thomas, Dwight Foster (both for a time justices of the Supreme Judicial Court), Hutchins and Wheeler. William Minot, Francis V. Balch, Edward D. Sohier, Melville M. Bigelow, John D. Long and William E. Russell (Governors of the Commonwealth), William G. Russell, Richard Olney (Attorney General and Secretary of State under President Cleve- land), John C. Gray, John C. Ropes, Lewis S. Dabney, Robert Dickson Smith, Thomas M. Babson (for many years corporation counsel of Bos- ton), Alfred Hemenway, Moorfield Storey (at one time president of the American Bar Association), John L. Thorndike, Robert M. Morse, Josiah H. Benton, Charles W. Bartlett, George A. Sawyer, James R. Dunbar, Ezra R. Thayer, and many others.
Of those mentioned above, only Mr. Storey still survives.
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CHARLES JACKSON, JUSTICE OF MASSACHUSETTS SUPREME COURT
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The Bar Association Movement-In the early seventies the demorali- zation of the bench and bar of New York under the influence of the Tweed Ring led those members of the profession who retained some self-respect and sense of professional decency to organize the Association of the Bar of the City of New York primarily to fight politics and graft on the bench and at the bar. That started the bar association movement in the country. The Bar Association of the City of Boston was organized a year or two later with Sidney Bartlett as its first president. This was followed by other county and city associations in Massachusetts and other States. In 1878 the American Bar Association was formed, and later came the organization of State bar associations. The Massachusetts Bar Association was formed in 1909-10 with Richard Olney as its first president.
Notable Trials-In his chapter in the "Memorial History," Mr. Morse refers briefly to "the most famous criminal cause ever tried in New Eng- land," that of Professor Webster for the murder of Dr. Parkman in 1849. Capital cases were then tried before the Supreme Judicial Court. Chief Justice Shaw presided, justices Wilde, Dewey, and Metcalf sitting with him, and after the verdict of "guilty" the chief justice was abused in the press all over the country as a "tyrant," a "Jeffries," etc., but after the confession, before the execution, the abuse subsided. Since that time, there have been several especially notable criminal trials in metro- politan Boston.
The Trial of Leavitt Alley-In 1873, the mutilated body of a man was found in a barrel in the Charles River. Leavitt Alley, a teamster, was charged with the murder. Attorney General Charles R. Train led for the government and Gustavus A. Somerby and Lewis S. Dabney for the defense. Somerby and Dabney, then a young man, were exception- ally able men and tried the case with consummate skill. It was in the days when leading members of the bar were assigned by the court to defend criminals without compensation. Without rhetoric or the dra- matic appeals to sentimentality, too common in these days, the defense stuck closely to the evidence, held the government to its burden of proof, and secured an acquittal on the ground of "reasonable doubt." It was an exceptionally brutal murder and there was much public criticism of the result, but, as one reads the report of the case today, with the desire to weigh it as a juryman, one can see, even in the printed account, the grounds for the doubt and appreciate the skill of the defense. It is an interesting study of evidence. It is a noticeable fact that the defendant's widow was not a witness because she could not be called, and that his son, who could have been, was not called to testify by either side.
Met. Bos .- 18
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The Bram Case-This was a trial in the Federal District Court for murder on the high seas, and presented a most unusual and almost unique problem for a jury, because every living person on the ship appeared before the jury and told his story. The jury knew that one of those eleven men before them had murdered the captain, the captain's wife, and the second mate with an axe, and the question was to pick the mur- derer. The case was tried twice with great skill and ability on both sides. The defendant Bram was the first mate and was represented at both trials by James E. Cotter and Asa P. French, later United States Attorney. At the first trial, United States Attorney Sherman Hoar and his assistants, John H. Casey and Frederick P. Cabot, now judge of the Boston Juvenile Court, appeared for the government, and at the second trial, after Mr. Hoar's death, his successor, Boyd B. Jones, of Haverhill, took his place. The presiding justices were Hon. LeBaron B. Colt, of Rhode Island, and Hon. Nathan Webb, of Portland, Maine.
There were fourteen people on the schooner "Herbert Fuller," the captain, his wife, the first and second mates, a passenger, Lester Monks, on a sea voyage for his health, and nine members of the crew. The captain's stateroom was aft with a small low window looking out toward the wheel. There was direct testimony of Charlie Brown, one of the crew, who was at the wheel on the night of the murder, that as he turned the wheel to starboard so that he had to bend down, he saw Mate Bram through the small low window, strike the captain with an axe. In the face of this testimony the defense was as ingenious as it was difficult. With every living person aboard the ship in the court room, the only pos- sible defense was to raise a reasonable doubt by showing opportunities and grounds for suspicion of some of the other persons. The main guns of the defense were trained on Charlie Brown and the passenger, Monks, who took command of the ship after the murder and ordered the Mate Bram put in irons until the ship reached Halifax. As to Charlie Brown, the defense was most ingenious, the theory being that it was physically impossible for him to have seen what he said he saw through the window, and that under the weather conditions on that night it was possible for him to lash the wheel so that the vessel would hold her course for a suf- ficient length of time to allow him to go forward and down the com- panionway, take the axe, kill three people, and get back to the wheel. This defense was supported as a possibility by the testimony of seafaring witnesses who were called as experts by the defense. The defend- ant himself took the stand at both trials and told his story with much dramatic ability-indeed, one close observer considered him an actor of marked ability. The jury was taken on board the ship for a view and stood at the wheel and examined various parts of the ship. They brought
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in a verdict of "guilty" at the first trial, which, as the law stood at that time, would have resulted in a death sentence, but the case was carried to the Supreme Court of the United States, which ordered a new trial because testimony had been admitted as to Bram's talk under illegal pressure by the authorities on the ship's arrival at Halifax. (See Bram v. U. S. 168 U. S. 532.) The second trial before another jury also resulted in a verdict of "guilty," but, between the two trials, Congress passed a stat- ute allowing a jury to bring in a murder verdict of "guilty without capital punishment," which the second jury took advantage of, with the result that the defendant was sentenced to Atlanta for life, and after serving about fifteen years or so, was paroled for good behavior.
Space will not allow a more detailed account of this remarkable trial, but a readable condensed account by one who followed both trials and saw and heard all that the jury saw and heard, may be found in the "Green Bag" by those who like dramatic trials. Each trial lasted five or six weeks and deserves its place among the remarkable trials in Amer- ican legal history.
The Tucker Case-This was a case of a brutal murder of Miss Page of Weston. The evidence was entirely "circumstantial," the kind of evidence which sentimentalists are apt to disparage vaguely as weak or uncertain, but which lawyers know to be the strongest evidence there is if you can piece enough of it together. The case was tried before Judge Sherman and Judge Sheldon sitting together. Attorney General Herbert Parker led for the government, with District Attorney Wier and Assist- ant District Attorney Sanderson, now a justice of the Supreme Judicial Court, assisting him. Hon. James H. Vahey defended. The case was fought hard, but there was much nauseating newspaper publicity of a sentimental character and one newspaper, after the verdict "guilty," col- lected, by advertisement, signatures of thousands of persons, who, of course, knew nothing about the case, to an enormous petition to the Governor for a commutation of sentence. The petition is still kept as a curiosity at the State House. Governor Guild, however, made a careful personal examination of the case and, after convincing himself of the soundness of the verdict, refused to commute and the defendant was executed.
The District Attorney Cases-In 1921, occurred two of the most im- portant and unusual trials in the history of the Commonwealth. They were important because they involved the removal from office for mis- conduct of the prosecuting officers of the two great counties of Middle- sex and Suffolk. They were unusual because, while most cases, civil or criminal, are tried before one judge with or without a jury, the removal
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of a district attorney under the Massachusetts Statute is a matter solely within the special jurisdiction of the full bench of the Supreme Judicial Court. Accordingly, the entire appellate work of the Supreme Judicial Court was suspended for several weeks in the summer of 1921 and again in the winter of 1921-22, when five judges of that court sat to hear the evi- dence and the legal arguments in these two cases. In both cases, At- torney General J. Weston Allen appeared for the government, being assisted in the Middlesex case by the late Henry F. Hurlburt, president of the Bar Association of the city of Boston, and in the Suffolk case by Messrs. Robert G. Dodge, James J. McCarthy, and Andrew Marshall. In the Middlesex case, Melvin M. Johnson, Esq., represented the respondent and in the Suffolk case Hon. James A. Reed, United States Senator from Missouri, and former Attorney General Boyle, of Missouri, appeared for the defense.
Lack of space prevents a more detailed account of these trials, but the story may be read in the judgments of the court in "Atty-Gen. v. Tufts, 239 Mass. 458" and Atty-Gen. v. Pelletier," 240 Mass. 264.
The Creation of the Land Court and its Development Since 1898-The examination of land titles in many States is done by title companies. In Massachusetts it has always been done almost entirely by individual law- yers, many of whom devote themselves to that branch of the profession, and title companies have made little headway. Our system of recording deeds dates back to the early colonial settlements, but in the latter part of the nineteenth century the Australian system of registration of title by the government and the issuance of a government certificate of title attracted attention in this country.
On recommendation of Governor Russell, a commission was created in 1893 to study the subject, and James R. Carret, Frederick H. Stebbins and Heman W. Chaplin were appointed. They disagreed in their report and in 1897 Governor Wolcott appointed Alfred Hemenway, Esq., of Boston, sole commissioner to draft an act providing for voluntary regis- tration. Mr. Hemenway's report was remarkable for several reasons. First, he filed no explanatory report whatever-he simply drew the act and submitted it without comment, leaving the act to explain itself. In view of the habitual verbosity of the legal profession, this, in itself, was remarkable. The Legislature passed the act with little if any change, and experience has proved the skill of Mr. Hemenway's draftsmanship.
It created a Land Court by which titles could be registered on peti- tion by judicial decree, and after notice by posting on the land, by registered mail to all persons known to be interested as abutters or other- wise and by publication to all unknown persons. Without going into details, it was a system, not for making bad titles good by cutting off
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known rights of other persons, but for making unmarketable good titles marketable by removing clouds, calling in persons claiming any rights, and, after a fair hearing, settling the question and registering the title subject to known rights of cthers. The act was not copied from some other, it was a piece of constructive legislation fitted into the local con- ditions in Massachusetts by a master hand.
The judges of the new court were given a free hand to develop the practice in accordance with the needs of the community as shown by ex- perience. Beginning with two judges and a recorder, the business of the court gradually increased so that a third judge was added. The development of the practice of the court so that it has fitted in without disturbance to the business of the community, is largely due to the work of three men: first, Hon. Charles T. Davis, appointed at the age of thirty-five as one of the original judges, and still in active service as the senior judge; second, Hon. Clarence C. Smith, the original recorder who, after twenty years of service in that position, was promoted to be one of the judges; and third, Hon. Joseph J. Corbett, who has served on the Land Court bench for the past ten or fifteen years.
Besides its original work of registering titles, the Legislature has transferred to it the jurisdiction of practically all the litigation about land in the Commonwealth.
The story of the court is one of constructive public service which de- serves appreciation.
The Municipal Court of the City of Boston-Created in 1866 (suc- ceeding the Police Court of Boston), the Municipal Court of the City of Boston has developed into a modern city court which handles a larger volume of litigation, both civil and criminal, than any other court in the Commonwealth. Its criminal jurisdiction covers the central part of the city and its civil jurisdiction extends throughout Suffolk County. For many years its civil jurisdiction was limited to cases involving not more than $2,000. Its criminal jurisdiction, like that of other district courts, is limited to misdemeanors and other offenses in which a grand jury indict- ment is not required. There is a right of appeal for a jury trial to the Superior Court in every criminal case, and, until 1912, this right also ex- isted in all civil cases.
In 1909, Hon. Henry T. Lummus, of Lynn, now a judge of the Supe- rior Court, wrote a pamphlet on the "Failure of the Appeal System," in which the history of jury appeals, delay and expense incident to them, was set forth.
In 1912, a special commission in an able report on the lower courts of Suffolk County recommended the abolition of this double trial system
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and the substitution of a plan by which a defendant in a civil case, if he wished a jury trial, must remove the case at once to the Superior Court, instead of "fishing" for the plaintiff's case under the old plan and then delaying him by appeal. An appellate division to hear appeals on ques- tions of law only was also recommended. The chairman of this com- mission was Hon. Wilfred Bolster, the chief justice of the court then and now, and one of the outstanding judicial administrators in the history of our courts.
The Legislature followed the recommendation and since that time the work accomplished by the court has constantly increased, and its civil jurisdiction has been raised to $5,000.
The special commission referred to also recommended that the other outlying district courts in Suffolk County be consolidated with the cen- tral court. This would seem to be a more effective and businesslike ar- rangement for the community than that of having nine or ten isolated establishments in different parts of the city without the cooperation that is possible with a more centralized arrangement, but the local prejudices in favor of the local courts have always been strong enough to block any action in this direction. As the civil jurisdiction extends throughout the county, however, the practical convenience of the bar and the litigants has resulted in bringing almost all the civil business to the central court.
The Boston Juvenile Court-The story and picture of this court is best given briefly in the following extracts from an account of its first judge by Roy M. Cushman, who was one of his probation officers.
"The spread of the juvenile court idea is one of the remarkable de- velopments in the field of jurisprudence during the last two decades. Among the juvenile courts of the country the Boston Court has ranked high chiefly on account of the eminent service of its first judge-Harvey Humphrey Baker.
"Shortly after Judge Baker died, his friends and associates sought to establish a memorial of him and of his work-something that would help in fostering the growth of the juvenile court movement.
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