PART I.

DISCUSSIONS AND RECOMMENDATIONS.

(1) The annual proposals for an elective judiciary.

Every year there is a proposal introduced to force an elective judiciary for short terms of five years or so on the State of Massachusetts. This Association has regularly opposed this movement.

In view of the persistent appearance of the plan, however, and the misconception of history which leads even some members of the bar to appear in favor of it and to state before the legislative committee that the tenure of our judges is a "survival of a monarchical system," the committee send with this report a copy of Roscoe Pound's recent article on "Justice According to Law." This is one of the most valuable, instructive, and readable pieces of law writing that has appeared in years and it deserves to be read by every member of the Association. It is a comparative study of the practical working in this country and elsewhere of the different methods of administering justice.

How any one at all familiar with the struggle for civil liberty under the Stuart kings can say that life tenure of judges is a relic of monarchy, is a mystery. On the contrary the tenure of our judges is the direct result of the fact that Sir Edward Coke was removed from the bench by the King because he refused to decide cases as the King wanted him to and was the most vigorous and uncompromising champion in England of the common law rights of Englishmen and of parliament against the growing arrogance and despotism of the crown.

This struggle between Lord Coke and James I. is graphi

cally described in Trevelyan's " England under the Stuarts," pp. 121-122, as follows:

ee

During the period of unparliamentary government (1611-21) the rights of the subject had found a strange and memorable champion. What Parliament could not assert on behalf of the nation, a single Judge had asserted on behalf of himself and of the law. Sir Edward Coke, one of the most disagreeable figures in our history, is one of the most important champions of our liberties. At a dangerous period in the development of the constitutional struggle, it was he who, to gratify his official pride and his personal passions, first revived the theory that the law was not the instrument but the boundary of royal prerogative, and that the Judges were not, as his rival Bacon declared, lions under the throne,' but umpires between King and subject. His ferocious power of self-assertion, working through the medium of a legal learning, memory and intellect seldom equalled even on the English Bench, alone caused his brethren, who were almost equally afraid of Chief Justice Coke and of King James, to break for a season with the Tudor traditions of their office. At this time the law of the Constitution was not yet interpreted by an established custom of the Constitution, and it lay with the courts to decide many questions arising between King and Parliament, or between King and subject. As the law was often obscure and the precedents contradictory, a very slight political bias could, without scandal, be decisive of grave issues. Hitherto the bias of the Judges had been Royalist. They had pronounced for the King in the question of Impositions, in the year that Coke became Chief Justice of the Common Pleas (1606). Under his influence their decisions soon began to take a different colour. In 1613 Coke was punished by being moved, much against his wishes, to preside over the King's Bench. But still in one question after another James met with attempts to thwart his authority

from the quarter where his predecessors had found the most ready support. At last the exasperated King claimed the right to interview the Judges in his own chamber, whenever they were called to decide a question affecting his prerogative. Coke, knowing that this concession would destroy both the independence of his brethren as a body and his own power to dictate their decisions, refused to give way, even when all the rest had capitulated. His obstinacy cost him his seat on the Bench, and even at the Council Board. In the course of the whole reign, no measure that James took to strengthen his authority succeeded half so well as the dismissal of Coke. The Judges at once relapsed into servants removable at the King's pleasure, and sure defenders of his prerogative. But Coke had not striven in vain. He had turned the minds of the young gentlemen at the Inns of Court, who watched him from afar with fear and reverence, to contemplate a new idea of the constitutional function and of the political affinities of their profession, which they were destined in their generation to develop in a hundred ways, as counsel for England gone to law with her King."*

*In the concluding paragraph of a recent essay on "The Influence of Coke on the Development of English Law" read before the International Congress of Historical Studies held in London in 1913 (edited by Prof. Vinogradoff and published by the Oxford University Press), Dr. W. S. Holdsworth said of Coke's writings (at p. 311):

"If their influence upon some parts of our modern law has not been wholly satisfactory, let us remember that they have preserved for England and the world the constitutional doctrine of the rule of law.

The effects of this doctrine were destined in the succeeding ages to be felt beyond the bounds of England, beyond the bounds even of Englishspeaking peoples in all places and at all times wherever and whenever men have had the will and the power to establish constitutional government. We may surely claim that these large results of this part of Coke's work upon the civilized world of to-day entitle the most English of our English common lawyers to a place among the great jurists of the world."

If the man of whom these words could be spoken was removed from the bench because he had the courage to deserve them we should remember the fact when we are asked to adopt a system which would inevitably be used in an attempt either to break the spirit of our judiciary or to change its character.

The framers of the Massachusetts and of the United States Constitutions were familiar with these English struggles * and they provided a system which would give us fearless judges. As a result of their work we have had for one hundred and thirty-three years a long line of judges who have not been afraid to administer justice according to law without regard to political influences or popular prejudice.

In contrast to this experience the strong movement now going on in New York to return to the appointive system after a long experience with the elective system is significant. It is to be hoped that Massachusetts will always keep the system which produces strong men; and that the Massachusetts bar may be permanently spared the demoralizing influence which is an inevitable result of an elective judicial system, of the temptation for many men to consider what political influence will affect a judge's mind instead of arguing a case before him fairly on its merits. †

(2) As to the Supreme Judicial Court.

As a result of the discussion at the annual meeting and later at the special meeting of the Association which followed the recommendations of this committee last year, the following bill, copies of which had been sent to every member of the Association, was approved by the Associa

* The help which one gets from a sense of historical perspective in learning fully to understand our institutions emphasizes the importance of the requirement by the Bar Examiners in Rule VII. A (discussed elsewhere in this report) of some general knowledge of English history.

The direct relation between the attack on the judicial system of the State and the movement for the compulsory initiative has been pointed out. One of the organizations which petitions for the compulsory initiative, H. 181, is also a petitioner for an elective judiciary with five-year terms, H. 185, and it was frankly stated by a representative of this organization this year before the Committee on Constitutional Amendments that he thought the adoption of the compulsory initiative would settle the question of an elective judiciary, recall of judicial decisions, etc., all of which measures he was supporting.

tion at the special meeting held at the American House, Boston, on February 14 last (see Mass. Bar Assoc. Rep., Vol. IV., pp. 137-139).

AN ACT RELATING TO THE BUSINESS OF THE

SUPREME JUDICIAL COURT,

SECTION 1. All cases and matters in any county that may be required to be heard and determined in the Supreme Judicial Court by the full court shall be heard at the sittings of the court at Boston, but the court may for any reasons that it shall consider sufficient in the circumstances sit for the purpose at any other place in the commonwealth and may transact at any such place any of the business of the full court. All such cases and matters shall be entered with the clerk of the court for the commonwealth and the court may make such rules or orders, general or otherwise, for the hearing of such cases as it deems proper. The court shall be always open for the transaction of any business of the full court and sittings shall be held at such times as the court shall from time to time appoint with a view to the despatch of business and the interest of the public.

(Rev. Laws, c. 156, sec. 15, questions of law; sec. 17, cases and matters at law or in equity; Rev. Laws, c. 159, sec. 19, equity appeals.)

SECTION 2. All cases and, matters that shall be pending before the full court in any place except Boston when this act takes effect, and shall not have been finally heard by the court, shall be forthwith transferred by the clerks of the courts, respectively, with the papers relating to the same, and entered with. the clerk of the court for the commonwealth, without the payment of any additional fees on account of such transfer.

SECTION 3. Sittings of the Supreme Judicial Court for the despatch of such business as is not required to be dealt with by the full court shall be held by one