lawyers, but times change and we must change with them. The demands of our increasing population and of a more complicated civilization, the new situations, the new questions which confront us, must be met, and the machinery which served every need of a small and homogeneous community may be outgrown and need reform or reconstruction as the years go on. This work can only be done well by experts, and our profession must supply these.

Let me take an illustration from the work which this association and other bodies of Massachusetts lawyers have recently undertaken. There are many who think that the Supreme Court of this state is overworked and that it should receive immediate relief. Some propose to make it only an appellate court, transferring to the Superior Court all original jurisdiction including probate appeals. There are others who feel that hearing and deciding questions of law on appeal is not the most important judicial work, and that the conduct of trials in which facts are determined by juries or by the court itself is of at least equal consequence. None but a great judge could have tried the Tichborne case as Chief Justice Cockburn did, or could have tried the Crippen case as Lord Alverstone did, while such a proceeding as the trial of Thaw does the whole profession more injury than years of good appellate work can undo. The trial of the dynamiters at Indianapolis, of the conspirators at Los Angeles, of the suits against great business combinations under the Sherman law call for the highest judicial ability. In this department of their work the courts come nearest to the people, and efficiency here makes for prompt justice and lightens the labor of the appellate court, while poor judges in the lower courts increase it. There are many of us who feel that the trial of the very important questions raised in equity suits and in contests over wills, to say nothing of other proceedings now within the jurisdiction of the Supreme Court, are worthy of the best talent which the bench affords, and we all know that the Supreme Court is reinforced as vacancies occur either by those judges who from proved judicial capacity and long service on the Superior Bench are recognized as worthy of promotion, or

from leading members of the bar, while the Superior Court necessarily contains men who have had far less judicial experience, whatever may be their native capacity. The Superior Bench is in a sense the undergraduate department of our judiciary, while the Supreme Court is composed of graduates cum laude, and a lawyer cannot be blamed if for a great case he wants at least demonstrated ability and experience on the bench. It is felt also that the bench itself can discharge its appellate functions better if it has some original jurisdiction, and is required to do some nisi prius work; that like Antæus it is refreshed and strengthened by contact with the earth.

Between these diverging views, which is right? Or is there a middle way safer than either extreme? Last year it was proposed that before taking the extreme step and relieving the Supreme Court of all save appellate work, we should try the experiment of taking from it all useless labor. To call five judges away from their other labors and make them visit different towns in the state where often the work awaiting them is very trifling, or to send members of the court to hold jury terms and summon jurors to meet them where there are no cases to try, seems to ask of the court a useless waste of time.

It was therefore proposed that the court should sit as an appellate court only in Boston, and should have power to sit at nisi prius when and where in its judgment the business required a session, no juries being summoned at stated times but only when needed. This would save the time of the court and the citizens summoned as jurors, and would save also the public money, while insuring more continuous sessions of the court for the present in Boston.

The proposed innovation was opposed by some members of the bar who have become accustomed to the old system and who anticipated inconvenience from the change, and it also offended some local pride and prejudice. But on the other hand many lawyers in all parts of the state favored the change because it insured prompt hearing of appeals and in some cases prevented a year's delay, thus operating to the advantage of the public.

The hardship to the bar of arguing their cases at Boston is doubtless exaggerated, when we remember that from the first the Supreme Court of the United States has always sat at the seat of government and lawyers have crossed the continent to argue their cases, and when we learn that in more than thirty-one states of the Union, including New York, Ohio, Illinois, and Indiana among the large and thickly settled States, and North Carolina, Nebraska, and Nevada among the States where communication between different sections is certainly less easy than in Massachusetts, the appellate court sits only in one place, it would seem a confession of inferiority if the members of our bar cannot encounter the difficulties to which their brethren all over this country cheerfully submit, and the advantage of speedier hearings would seem to outweigh the disadvantages of the change.

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It is also to be suggested that it is possible to submit cases on briefs which may be written arguments. I belong myself to that old-fashioned class which clings to oral argument. I have often quoted Justice Miller's advice to Mr. Sidney Bartlett: Never submit a case on brief." A good oral argument compels attention and drives a point home, while a brief may be read when every condition persuades repose. Very likely most of you like myself on reading an old brief have been surprised and mortified to find that statements which at the time seemed convincing lose their strength when viewed in retrospect. At the time A year

one reads in his brief all that he means to say. later he sees that it may not have meant to the reader all that it meant to him when he wrote it. An oral argument brings out in questions from the bench the points where the case labors, but the writer has no such illumination. Moreover when arguments are written much of what is most attractive in our practice is gone. The traditions of the bar would be barren indeed if the eloquent arguments, the caustic interruptions, the humorous suggestions, the quick retorts of counsel and judges were razed from our chronicles. These things are the romance of our profession and we would not readily part with them. While the exigen

cies of modern life permit, I for one should regret bitterly any change which would allow only written argument.

On the other hand, it is by reading that we learn the law, and we do not find it difficult in reading the reports to discover as a rule what the court means, or to select sentences from an opinion which sustain our views, and in many cases the opportunity for brilliant rhetoric is so slight that a compact brief may well be substituted for oral argument, and counsel secures a speedy decision for his client without the trouble and expense of a journey for himself. He may console himself by the reflection that while words are winged, litera scripta manet, though this is not always a consolation.

It has been suggested that the bench might also spare itself some labor by writing less elaborate opinions. The famous advice of Lord Mansfield to the colonial judge that he give his judgments and not his reasons for them, since the former would probably be right, while the latter might be wrong, rather discredits long essays, and our brethren of the court should not be surprised if they who have cut our opportunities for eloquence in half by allowing only one hour of argument to each side should find us suggesting to them a corresponding sacritice. Condensation is difficult, but the trouble which it gives the writer is outweighed many times by what it saves generations of readers. There are many cases where there is little room for doubt in the court's mind, and there an opinion per curiam would seem sufficient for all purposes. But it should be said that there is no reason to criticise the present court for unusual prolixity. I have taken pains to compare the number of decisions reported in different volumes ten years apart, and I find that Volume 214 contains more cases in substantially the same number of pages than volumes taken ten, twenty and thirty years back. We can only praise such a record

and say "Macte."

But if per curiam opinions are to become common the court itself must respect them, and not as has happened when such a decision was cited, say, "Oh, that was only a per curiam opinion." Judgments in which the court con

curs without doubt or question should on the contrary be of the greatest weight, and while counsel may or may not enjoy a full discussion of their arguments, in most cases the rest of the profession is content to know the result, feeling about each other's ordinary cases as an eminent senior did, who, finding a friend sitting at the counsel's table just before the court came in, remarked, "Ah, brother L, I see you have the first case this morning. I presume it is a case of no importance. How long is it likely to take?" Let me say in conclusion "Interest reipublicæ ut sit finis litium" and the lis is not ended till one has read the last word of the court's judgment.

A bill has been prepared and presented to the committee on legislation which will be brought to your attention, and which proposes a compromise between the varying views. It transfers all the original jurisdiction of the Supreme Court to the Superior Court, but it gives to every judge of the Supreme Court all the powers of a judge in the Superior Court with authority to sit in that court as if he were one of its judges, and it directs that arrangements be made by the Chief Justice of the two courts under which the judges of the Supreme Court shall sit in the Superior Court and take part in the transaction of its business so far as this can be done without interfering with their work as justices of the higher court.

This measure if adopted would follow the precedent established by the laws which regulate the Supreme Court of the United States, whose members for many years after I came to the bar sat in the Circuit Court, presided at jury trials, heard cases in equity, and were practical working members of the Circuit Bench. In recent years they have appeared less in the lower court, but they still have the power to act as circuit judges, and in certain exigencies would undoubtedly exercise that power. A precedent is also found in New Hampshire where by a statute of the last year judges of the Supreme Court are given power to sit as judges of the Superior Court, and there is abundant precedent in England where judges of appellate tribunals have always been expected to do nisi prius work.