system still flourishes. The advocates of the bill could only argue that the Chicago experience and the Land Court experience here did not warrant any such forebodings, and that plaintiffs in the contract cases that make up, according to the statistics, six-sevenths of lower court business, would have no temptation to begin cases in a court requiring a year or two to obtain a trial, or in a court from which an appeal could cause delay for a year or two at the caprice of the defendant. In such cases neither party is really very desirous of a jury at the outset.

The result in Boston has now shown that such fears were wholly unfounded. Of course, some tort cases are now brought directly in the Superior Court, instead of being begun in the Municipal Court; but most of them went up on appeal anyway, and were not legitimately a part of the lower court business. For the three years preceding the act of 1912, the average number of cases annually entered in the Municipal Court of the City of Boston was 14,863. In 1913 the entries were 14,005, a loss of 858. Of these entries, 441, or about 3 per cent, were removed to the Superior Court. The total losses, plus the removals, thus amounted to 1,299, about the same as the number of appeals for 1910 (the only year for which statistics are available), which was 1,274. In other words, the court had as much business after the passage of the new act as before, and when the cases came to be tried they constituted real business, worthy of the best attention of court and counsel. The statistics for the first eight months of 1914 indicate an annual increase of about 400 entries over 1913.

Likewise the fear that plaintiffs would flock to the outlying lower courts in Suffolk has proved groundless. Statistics gathered from the various courts show a little increase in entries in 1912, doubtless resulting from fear of the unknown practice in the Central court; but in 1913 the

increase disappeared, and these entries resumed their normally small proportions.

(f) That the bar and litigants demand appeals. — For a year or two losing parties and their counsel might bemoan the loss of the privilege of appeal, but prevailing parties who are able to secure the fruits of victory without annoyance and delay would have no such feeling. The real interests of the bar, in dollars and cents, are favored by the change, because the waste of time resulting from two trials in small cases is seldom fully paid for; the rewards of small litigation, however protracted, must needs be small. The speedy termination of small litigation would be a financial benefit to the younger lawyers especially, as well as to their clients.

The tendency of human nature is to fight as long as possible, and in the end to take the result, whether favorable or unfavorable. We have learned to do this in the Supreme Judicial Court, the Superior Court and the Land Court; we shall learn to do it in small cases in the lower courts, and the interests of every one will be better served.

It must be remembered that the so-called "right" of appeal is not a natural or constitutional right, but one created by, and subject to the will of, the Legislature. The only constitutional right is the right to a jury trial, which the proposed act protects just as well as the existing appeal system does.

THE GENERAL ANSWER TO CONSERVATIVE FEARS. In 1851 the commission on the practice act composed of Benjamin R. Curtis, who soon after became Associate Justice of the Supreme Court of the United States and wrote the famous dissenting opinion in the Dred Scott case, Reuben A. Chapman, later Chief Justice of Massachusetts, and Nathaniel S. Lord, then one of the leaders of the Essex County bar, solemnly declared in their report that

they did "not think it for the interests of justice or the public morals" to allow parties to testify as witnesses (see copy of the report in Hall's Mass. Practice at p. 156). One would have supposed that the sense of humor of some one of them would have prevented what to us of to-day seems a curious statement. At all events about five years after they made it, parties were allowed to testify (1856, c. 188 and 1857, c. 305), and the public morals appear to have stood the strain reasonably well.

The same sort of fearful conservatism is met with to-day in regard to this or that change which is really important if our system is to be improved.

Every now and then, however, things are shaken up somewhat and the machinery of justice is made better or worse in one way or another. Chief Justice Parsons was appointed in 1806 to shake up and improve the practice of that day and he did it, showing the bench and the bar among other things that it was not necessary to have three Supreme Court judges to sit at civil jury trials (see Memoir of Theophilus Parsons, pp. 200–201).

In 1817 as already pointed out two jury trials of right in the Supreme Court were stopped.

In 1839 and 1840 some one persuaded the legislature to change the old system by which a party had a right to two jury trials, once in the Court of Common Pleas and then again on appeal in the Supreme Court.

In 1912 the Commission on the Inferior Courts of Suffolk County, of which Chief Justice Bolster was chairman, persuaded the legislature to make the change in Boston which we now propose for the rest of the state.*

*The Suffolk County Commission stated the matter on pp. 12 and 13 of its Report, House Doc. 1638 of 1912, as follows: "The public owes litigants one hearing on the facts, not two. Under present conditions it gives small cases two, large cases one. This is an unwarrantable luxury of litigation. When a litigant has had one fair trial in a court of his choice or

We submit that there are very sound reasons for making the change and no sound reason whatever for not making it.

Second.

THE APPELLATE DIVISION PLAN.

Besides avoiding duplication of trials on the facts the Boston act of 1912 provided for an appellate division of the Boston Municipal Court to consist of three judges to be assigned from time to time by the chief justice of that court. This came from the following recommendation of the commission on page 14 of their report:

acceptance, with a speedy method of correction of legal error, he has had all that the public ought to supply him. The present method of de novo retrial of facts is fast becoming obsolete; it is a survival of the justice of the peace and trial justice courts, which are themselves largely of the past; through the ease with which the lower court judgments may be vacated, it precludes respect for the court which enters them; it conduces to lax work of bench and bar; it consumes in legal expense an undue proportion of the amount in dispute, in a class of cases least able to bear such expense; it tends to increase the so-called gambling element of litigation, and there are not wanting evidences that it is fostering a tendency at the second trial to make the evidence fit the needs of the case; in a word, it is a direct encouragement of perjury. Table 5 appended shows that in a very large proportion of appealed civil cases the appeal is taken, not through a desire for a jury trial, or any great expectation of a radically different result, but to effect a settlement more favorable than the finding already made, to gain time, or for some other similar reason. An examination of a year's work in the Superior Court with appealed civil cases shows that less than a quarter were retried, in only 30 per cent of such retrials, or 105 cases, was the result in the lower court reversed, and that the retrial lowered a finding for the plaintiff three times to twice that it increased it. This fact is probably due to the so-called 'compromise verdicts.' A conservative estimate of the annual public cost of Suffolk lower court civil trials, in which the judgment is entirely vacated by appeal, is $15,000. We recommend that such duplication of trials be done away with by compelling a party desiring a jury trial to begin his case in a jury court, or remove thereto if a defendant, through a system of forced election somewhat similar to that recommended by the commission which in 1909 investigated the causes of delay in civil actions. Their recommendation of such elective method was adopted in substance as to trials in the land court, and we are informed that it has worked successfully, and that the removals, though unhampered by expense, have not approached the number of appeals under the former system. This confirms the opinion of that commission that 'the right of trial by jury is little valued or desired by a party until a decision adverse to him has been made.'"

"It will tend to better judicial work and to the relief of the Superior Court if the inferior court is compelled in the largest possible degree to correct its own errors of law before submitting them to a higher tribunal. With this in view we recommend an appellate division to remedy legal error in civil causes."

This recommendation also applies with equal force to the other lower courts of the state if a practicable method of carrying it out can be devised for the other courts.

The arrangement for the appellate division in the proposed act necessarily differs in detail in the method of selecting the appellate judges because the courts differ, but the general plan is the same. The act would divide the state into three parts which may be roughly described as northeastern, southeastern, and western parts, with an appellate division for each part made up of the regular judge of the court in which the appeal is claimed and three judges assigned from time to time from the courts in that part by the chief justice of the Supreme Judicial Court; two shall make a quorum, but no judge shall sit on appeals from his own decisions. To equalize the salaries of judges while sitting in the appellate division the bill provides that a judge acting in the appellate division in a court other than his own would be allowed reasonable compensation for services and his travelling expenses, to be paid by the county in which he acts, "in the same manner as if he had acted as a master appointed by the Supreme Judicial Court." This is only fair because he would be counted absent from his own court on that day and would usually suffer a loss of salary on that account.

The proposed division of the state would group nineteen courts in the northeastern part serving about 1,106,000 people; fifteen courts in the southeastern part (exclusive of Suffolk) serving about 685,400 people; and twenty-six