USA > Massachusetts > Suffolk County > Boston > Metropolitan Boston; a modern history; Volume I > Part 32
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"Because of the vision of Judge Cabot, who succeeded him, the prob- lem as to what form the memorial to Judge Baker should take was most satisfactorily solved by the establishment of the Judge Baker Foundation, made possible through the contributions of friends, relatives and a wider group interested in the idea to which Judge Baker had given impetus. Such a memorial could not have been established under the leadership of any less resourceful man than Judge Cabot. Here, under the skillful direction of Dr. William Healy and Dr. Augusta F. Bronner and their assistants is carried on precisely that kind of a scientific study of prob- lem cases of delinquency which Judge Baker so clearly saw was nec-
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essary, and which he regarded in fact as the next step in the develop- ment of the work of his court. There can be no finer memorial than this for one who literally gave his life in the service of the juvenile court.
"In 1906, when the Legislature of Massachusetts created the Boston Juvenile Court and Governor Curtis Guild called Harvey Baker to be its judge, the appointment was welcomed as a most excellent and fitting one-one that would assure the establishment of the work upon firm foundations.
"There were some, however, who, knowing the beginnings of the juvenile court movement in Chicago and Denver, were doubtful as to the wisdom of Governor Guild's choice, and wondered whether Judge Baker's personality, his antecedents and his training were such as to make it pos- sible for him to win the confidence of delinquent children. It is unde- niably true that the average layman never would have picked Judge Baker for a successful worker with boys. For such a position one naturally thinks of the man with a peculiar type of personality, informal, able to meet the boys on their own level. a man perhaps whose boyhood had been not unlike that of those he now seeks to influence and direct. Such a man Harvey Baker obviously was not. Carefully nurtured, trained in self-discipline in a Puritan household of the finest type, always free from too much care in the matter of earning his livelihood, remaining a bachelor-all in all, one would say, a life wholly uncalculated to de- velop an understanding of the lives of wayward boys and girls. And yet he came to occupy a position of leadership among the children's court judges in the country. This success was due to many things-to his sense of fairness, his untiring devotion to duty, his great patience, his firmness when occasion demanded, his judicial turn of mind, his profound legal sense and knowledge of the law, his keen intelligence, his tactful- ness-but above all to the beauty, simplicity and genuineness of his per- sonal character. Such a nature as his conquered by force of its sincerity.
"How wonderfully was this fineness of character displayed in his work with wayward girls. His handling of this, perhaps the most difficult of all juvenile court problems, was both delicate and masterly. It called forth unstinted praise from all who had the opportunity to observe it.
"Here, as in all the different kinds of cases with which he had to deal, he seemed to be guided by a 'child sense,' which enabled him, a bachelor, to understand the problems of his court far better than most fathers could have done. His success showed that what is required in a children's court judge is not so much the fact of parenthood as the instinct of the father. 'Did you ever see him say goodbye to a boy, who, through suc- cessful probation, had gained the victory over himself? . ,
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"As he understood the point of view of the child, he also appreciated the problems of the parents. With rigid adherence in every case to the idea of the parents' responsibility for the child's conduct, he recognized how difficult a task it is to bring up children decently in some of the congested city neighborhoods. Invariably, he insisted upon seeing at least one, and in many instances both, of the parents of every child who came before him.
"Concerning defective children he often said: 'It is not the defective who gets into my court who bothers my conscience-we are able to do something for him. What bothers me is that so many defectives are al- lowed to drift about until they finally get into trouble and are brought to court in disgrace, when society should have taken them by the hand and helped them long before.'
"Judge Baker was a conservative, and yet he was always forward moving. He was ever on the alert to discover ways of improving the work of his court. Before accepting the judgeship he traveled about the country visiting many of the then existing juvenile courts and institu- tions for delinquent children, industrial schools, detention homes, etc .; . . His knowledge of the institutions to which he was sometimes called upon to commit children' was of a degree all too rarely acquired by judges. When Judge Baker committed a child he knew the institu- tion to which he was sending him. Not infrequently he visited him at the institution and always watched with interest his career while there and after parole. .
"Judge Baker's work proved the soundness of some of the principles of the juvenile court idea-first, that the question, 'What shall we do with the offender?' is more important than 'How shall we punish the of- fence?' Second, before we can decide intelligently what to do with the offender we must know him; third, to know him takes time.
"Perhaps more than in any other particular, juvenile court procedure differs from the procedure of the regular criminal court in the amount of time devoted to the treatment of each case. This makes the juvenile court apparently more expensive, but society is learning that to take time in the beginning to get the right hold on a problem is not expensive in the end.
"Lavish as he was in the expenditure of time upon the cases in his court-his work was truly scientific in its thoroughness-Judge Baker realized that it was necessary to know more about some children than any judge and his probation officers could discover unassisted. As is seen in his five-year review, it was that realization that showed him the need of a clinic for the study of problem cases.
"And now we have such a clinic in Boston, and it is most properly a
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memorial to Judge Baker and his work. The Judge Baker Foundation is proving a most valuable adjunct to the court, and its experts are gather- ing a mass of scientific data which are bound to be of inestimable value in the many problems connected with delinquency and crime.
"Thus, though no longer here, Judge Baker's vision and hope have become real, and this is all the memorial he would have wished."
It may be added that Judge Baker's successor, the present judge, Frederick P. Cabot, appointed by Governor McCall, has ably and ade- quately carried on and developed the work of the court.
The court's jurisdiction is limited to the same central part of the city as that of the criminal jurisdiction of the Municipal Court of the city of Boston already explained. In the other parts of the city the juvenile juris- diction is administered by the district judges. It seems probable that the day will come when the Legislature will recognize the value of enlarging this court and extending its jurisdiction throughout the city, but thus far local prejudices have obstructed any such plan.
Industrial Accident Board-The delay and expense to the parties and the public involved in jury trials under the conditions of modern life have resulted gradually in a resort to other methods of settling disputes. Fol- lowing a report in 1911 of a commission of which Hon. James A. Lowell, now a judge of the United States District Court, was chairman, the Legis- lature adopted a workmen's compensation law which removed from the courts a large mass of litigation arising out of industrial accidents and transferred it to an administrative board known as the Industrial Acci- dent Board, which adjusts the claims subject to appeal to the court. It has been frequently suggested that some similar plan should be devised to deal with traffic accidents of various kinds, but no workable plan has yet been thought out to the point of adoption here.
The Constitutional Convention of 1917-Massachusetts has been habitually and wisely slow to change its time-honored constitution. Drafted by the great constructive statesman of the Revolutionary era, John Adams, and his contemporaries who contributed so much to the building of the Nation, it is the only original State charter still in exist- ence as an operative instrument of government. The practice of recast- ing the whole document so common in other States has not been followed here. All changes have been made by specific amendment separately debated and submitted and still standing in their chronological order, so that the constitutional story-for it is a story-can be better understood by those who have to study it carefully for the practical purposes of gov- ernment. It is the greatest and most influential historical monument in Massachusetts which gives meaning to all other revolutionary monu-
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ments like Faneuil Hall, the Old South Church, Bunker Hill, Concord and Lexington, because it was the great result of what took place there. As Lord Bryce has said, it "profoundly influenced" the form and charac- ter of the Constitution of the United States, which was framed seven years later and to the ratification of which the ratifying action of Massa- chusetts in 1788 gave the principal impulse. These words are written, not for mere rhetorical effect in praise of Massachusetts, but with a deep conviction of their historical accuracy and practical importance and as a background for every reference to the constitution in this chapter.
By the ninth amendment to the constitution submitted by the con- vention of 1820 and ratified by the voters, "specific" constitutional amend- ments could be submitted by the Legislature by a vote of a majority of the Senators and two-thirds of the members of the House present and voting in two successive Legislatures. This provision had sufficed to meet the demand for constitutional changes for the following ninety-seven years, for, as already pointed out, the work of the convention of 1853 was rejected by the voters as a whole, and such of the changes, then suggested, as had a sufficiently general popular support, were subsequently sub- mitted by the Legislature as "specific" amendments and ratified at the polls. But for some years prior to 1917 there was agitation for another convention to consider the need of further changes, some of which had been urged upon the Legislature year after year without success.
The movement for a convention having gained some political strength was finally joined by Governor McCall, who advocated it as part of his campaign and in his inaugural address in 1916. An act calling a con- vention "to revise, alter or amend" the constitution was passed at that session subject to the approval of the voters which was given at the polls. Besides the view that it was time to have another one, there were two more definite reasons why the Legislature followed Governor Mc- Call's recommendation : First, the movement for the Initiative and Ref- erendum had acquired some political strength in Massachusetts, and, second, the controversy over a proposed constitutional amendment to prohibit appropriations of public money for sectarian purposes was be- coming more tense before the Legislature each year. While there were all kinds of other proposals, the desire to have these two thoroughly dis- cussed and disposed of by a convention was probably the main legislative reason for passing the convention act.
Of the 320 delegates to the convention, about 140 described them- selves as lawyers. The most distinguished of them all was Hon. James M. Morton, of Fall River, who, for many years, had been a familiar figure in the Boston Court House while he sat as an associate justice of the Supreme Judicial Court, from which he resigned in 1913 after years of service.
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In 1917, in his eightieth year, he was elected a delegate-at-large from the Fifteenth Congressional District to the Massachusetts Constitutional Convention of that year, and he attended its sessions regularly through- out the trying, hot summer of 1917 and the later sessions of 1918-19. He served as chairman of the Judiciary Committee of that convention and rendered great service to the convention and to the public by his judgment, his experience and his courtesy-his character, presence and bearing reflecting, as they did throughout, the high standing and tradi- tion of the great court of which he was long a distinguished member. It is safe to say that every member of the convention felt the influence of his presence and character and the added distinction which they gave to the convention. Simply to see him there made men feel better and helped them to think straighter about the serious problems of life and government. The fact that the Massachusetts judicial system could bring out, and preserve for the benefit of the community, the spirit and character which radiated from Judge Morton's presence must, con- sciously or unconsciously, have impressed many men in that convention in favor of the soundness of our system. It was a fortunate thing for the Commonwealth that he was a member of that body, and the voters of the Fifteenth Congressional District deserve the thanks of the com- munity for sending him there. In responding to the resolutions of the bar on the death of Hon. William Allen in 1891, Mr. Justice Holmes said : "No man of any loftiness of soul could be long a justice of this court without rising to his full height." (See 154 Mass. 615). Judge Morton gave real evidence of this in the constitutional convention.
The work of the convention covered too broad a field for discussion here. but certain things may be mentioned. The subject of the initiative and referendum was more thoroughly debated during a period of four months than ever before in any deliberative body. An amendment was finally framed for submission to the people and was ratified at the State election of 1918.
While the "Initiative" and the "Referendum" were politically insep- arable in the convention fight, actually they are very different. The ref- erendum, whatever its faults, is not open to the same objection as the initiative. Those who opposed the I. and R. were trying to block a polit- ical machine which might be used, as a result of skillful log rolling on a gigantic scale, for various purposes such as the recently adopted Oregon school law (to require the sending of all children to the public schools and thus to suppress private schools) which was the result of an initiative petition. That law (which has fortunately been held unconstitutional by the Supreme Court of the United States) seems to me an outrageous ex- ercise of power by a fanatical voting majority, and, if it had happened
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before the summer of 1917, it would not have been surprising if the I. and R. had been divided in the Massachusetts convention and the Referendum submitted to the people without the "Initiative." However, we have what we have, and we may hope not to be seriously threatened with any such fanatical movement in Massachusetts, unless it be indirectly in the guise of some "federal aid" measure through Congress. One result of the long fight against the I. and R. was the insertion in it by the convention and the people of certain safeguards to protect various subjects from attack under the impulse of temporary popular excitement or prejudice, or shrewd political maneuvering.
The subject of prohibiting appropriations of public funds for sec- tarian purposes was disposed of in masterly fashion under the leadership of the Committee on the Bill of Rights consisting of fifteen men with Hon. Edwin U. Curtis as chairman. Mr. Curtis was a lawyer who had been more active in political life than at the bar, having served in various capacities including that of Mayor of Boston and chairman of the Park Commission. His two greatest public services, however, were as chair- man of this committee of the convention and later as Police Commis- sioner of Boston during the police strike when, in spite of ill health, he "stood to his guns" with that one man's courage and firmness which are often needed for the protection of the public in a crisis, until President Coolidge, then Governor of Massachusetts, brought to his support the public sentiment not only of the State but of the whole Nation, by his famous telegram to Mr. Gompers on September 14, 1919: "There is no right to strike against the public safety by any one, anywhere, any time." The nation-wide recognition of that principle thus expressed marked a turning point in the history of the United States.
To return to the convention, as already stated, the feeling over the question of sectarian appropriations had become more and more tense before the Legislature for some years. When the convention met, a wide-open sectarian dispute with extremists on each side orating and abusing each other and everybody who disagreed with them was con- fidently expected by many. To the surprise of every one, Mr. Curtis' committee, made up of men of varied religious convictions, finally agreed on the so-called "anti-aid" amendment which, without using the word "sectarian," prohibited public appropriations for any institution of what- ever nature which was not under public management. The statesman- ship reflected in this solution of the problem lay in its recognition of a fact that was not understood by many Protestants. That fact was that many Roman Catholics resented the word "sectarian" as an epithet aimed primarily at them. They regarded all non-Catholic institutions as "sectarian" including those which were considered by Protestants as
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"non-sectarian." This misunderstanding was natural enough when one considers the variety of Protestant sects as compared with the solidarity of the Roman Catholic Church. For the solution of the difficulty in a spirit of mutual tolerance, the Commonwealth owes a lasting debt of gratitude to the leadership of Mr. Curtis and of every member of the Committee on the Bill of Rights of which he was chairman.
Besides the two mentioned, twenty other amendments on various sub- jects were submitted by the convention and ratified by the people.
The convention through a committee also prepared a "Re-arrangement of the Constitution" which was voted on by the people. Because of the phraseology of the controlling section in this document and its history in the committee and on the floor of the convention, there was much con- troversy as to whether its legal effect was that of a new constitution which replaced the old one and its amendments as the operative instrument of government. The controversy was finally carried to the Supreme Judicial Court which decided that the old Constitution of 1780 and its amendments in chronological order was still the operative and controlling instrument.
The story of the controversy is curious but too complicated for a more detailed account. It may be read in the opinion in the case of "Loring v. Young, 239 Mass. 349" and the briefs in that case in the Social Law Library.
The Judicature Commission of 1919-20-The Legislature of 1919 pro- vided for the appointment of a Judicature Commission of three to study the entire judicial system. Hon. Henry N. Sheldon, for many years a justice, first of the Superior Court and then of the Supreme Judicial Court, was appointed chairman. The other members were George R. Nutter, of Boston, and Addison L. Green, of Holyoke, both subsequently presidents of the Massachusetts Bar Association.
The reports of this commission made a new start in the study and development of the judicial system. Its first report in 1920 recommended the first state-wide small claims procedure in the country, thus capital- izing for the community the study of the legal difficulties of poor per- sons contained in the Report to the Carnegie Foundation entitled "Jus- tice and the Poor," made by Reginald H. Smith, a young Boston lawyer. Mr. Smith served for five years as general counsel of the Boston Legal Aid Society, and his report attracted attention all over the country and resulted in the creation of a standing committee on Legal Aid of the American Bar Association, of which committee he was made chairman.
The second report of the Judicature Commission in 1921 contained a review of the entire judicial system and a number of recommendations for its gradual improvement which were followed by the Legislature.
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The most important of these was the creation of a Judicial Council as a permanent body composed of judges and members of the bar, for the continuous study of the judicial system and the practice and procedure in the courts. The council was created by Chapter 244 of the Acts of 1924 and consists of nine members, of whom five are judges of vari- ous courts, and four are members of the bar. All except the secre- tary serve without compensation. The council makes an annual re- port to the Governor containing recommendations based on its study of the conditions in the administration of justice. It takes the place of the spasmodic special commissions which had been appointed at intervals of ten or fifteen years and provides a central "clearing house" of ideas for the more ordered and consistent future study of the admin- istration of justice. The council was fortunate in having as its first chairman Hon. William Caleb Loring, of Boston, a retired justice of the Supreme Judicial Court, whose experience, enthusiastic interest and hard work in spite of ill health, have helped greatly to give the new experiment a sound start.
Present Condition of the Courts and Bar and Some of the Problems of the Future-The most serious problem of the legal profession with which the community is faced for the future and for the solution of which the awakened interest of the public generally is needed, appears in the following extract from the report of the Judicature Commission of 1920 under the heading, "Admission to the Bar"; "In August, 1916, before a large gathering of lawyers from all parts of the country at Chicago, Hon. Elihu Root, then president of the American Bar Association, delivered an address entitled 'Public Service by the Bar,' of which thousands of copies were distributed, and which was printed for further distribution in various periodicals. In the course of this address he said :
. Few ideas have been more persistent throughout this country than the idea that the prevailing consideration in determining admission to the bar should be that every young man is entitled to his chance to be a lawyer, and that all requirements of attend- ance in offices and law schools and for difficult examinations are so many obstacles in the way of liberty and opportunity, defences of aristocratic privilege and derogations from democratic right. The law schools have been slowly winning their way along the lines of better training for the bar, but the progress is very slow, and the pressure for brief and easy ways to get a license to practice is continuous. Only last year the Massachu- setts Legislature, by statute, reduced the requirement of school attendance for admission to the bar to two years of evening high school, following upon an agitation carried on in support of the principle, "Let every man have his chance." One of our States, and a very great State indeed, with a very high average of general cultivation, permits any one of good moral character to practice law. Correspondence schools of law flourish, proceeding upon the idea that a man can become a lawyer incidentally by reading law books in spare hours as he goes along with his ordinary occupation. The constant pres-
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sure of democratic assertion of individual rights is always towards reducing the diffi- culty of bar examinations. One consequence is the excess of lawyers that I have men- tioned. Another consequence is that the efficiency of our courts is reduced, their rate of progress retarded, the expense increased, their procedure muddled and involved by an appreciable proportion of untrained and incompetent practitioners; by badly drawn, confused, obscure papers difficult to understand; by interlocutory proceedings which never ought to have been taken, and proceedings rightly taken in the wrong way and inadequately presented; by vague and haphazard ideas as to rights and remedies; by ignorance of the principles upon which our law of evidence is based; by ignorance of what has been decided and what is open to argument; by waste of time with worthless evidence and useless dispute in the trial of causes; by superfluous motions and argu- ments and appeals; and by the correction of errors caused by the blunders of attorneys and counsel. In many jurisdictions there is a considerable percentage of the bar whose practice causes the courts double time and labor because the practitioner is not properly trained to use the machinery furnished by the public for the protection of his clients. In the meantime other litigation waits and the public pays the expense.
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