COURTS MUST HAVE NEW SAFEGUARDS TO REPLACE OLD

The following letter from--William Ernest Hocking '01, Professor of Philosophy at the University, was written yesterday to the Crimson, the Boston Herald, and the Boston Transcript.

Sir:

It is evidently not the merits of the Sacco-Vanzetti case which most deeply divide the people of this community. It is the question of the respect owed to the findings of our courts. One great churchman publicly rebukes another for suggesting that the case be reviewed by an executive commission: he characterizes that suggestion as an impertinence. Such an expression can only come from deeply stirred feeling, a feeling that when our courts are under attack from agitators those who have a decent regard for them should stand together in their defence. It is because of the consideration one must feel for this attitude, which is widespread, as well as because of the high regard in which I hold both of these distinguished leaders, that I venture to recall certain facts regarding the history of our courts which ought to make for a better understanding between the opposing views.

These facts, in brief, go to show that the safeguards surrounding criminal trials in Massachusetts have been radically altered during the last sixty years by legislative action; that in 1860 capital cases were tried before four justices of the Supreme Judicial Court; that the present practice in which a capital case may be heard by only one judge is an anomaly in Massachusetts history, an experiment of barely ten years standing when Sacco and Vanzetti were brought to trial (and a clearly dangerous experiment): and that for this reason, public concern in its working is not only justified but demanded on the part of all who do respect and value the fair name of our courts.

Since the founding of Massachusetts Colony, capital cases have been set apart for special public care. A law of 1641, recorded in the first section of "The General Laws of the Massachusetts Colony" published in October 1659, provides that capital cases are to be judged by the General Court" (Colonial Laws of Massachusetts, 1887, 1). During the nineteenth century, they were customarily brought at once before the Supreme Judicial Court, and before a quorum of that Court. The General Statues of 1860 provides that four justices constitute a quorum of the court; and that in capital cases. If the prisoner does not plead guilty, the court may assign him counsel. . Preparatory to a trial to be had before the full court" (122, Sec. 2, 9). In April 1872, the number of justices required was reduced to "two or more" and this remained the practice until 1891.

In 1891, the original jurisdiction in capital cases was transferred to a lower court, the Superior Court; and statue provided that "the trial of an indictment for capital crime shall be before three justices" (Acts and Resolves, 1891, 379, back to "two or more" (Acts and Resolves, 1894, 204); and so it remained until 1910.

In an act approved May 23, 1910, the drastic step was taken which carried this process of reducing the safeguard of capital cases to the final limit. The court shall be held by one of the justices, and when so held shall have and exercise all the power and jurisdiction committed to said court": the section making special provision for capi- tal cases was repealed (Acts and Resolves, 1910, 555). This is the present situation. The General Laws of 1921 simply state that "The court shall be held by one of the justices" (212,2); and that. "The court shall have original jurisdiction of all crimes" (212, 6), provision being made for appeal to the Supreme Judicial Court carefully limited to "a matter of law apparent upon the record" (278, 28).

There are obvious motives favoring this process of reduction in the number of judges. The growing volume of work laid upon our courts, and the increasing costs of criminal procedure, forbid all needless prodigality in the expending of Judicial intelligence on criminal cases. But it is a question of great moment whether, in thus reducing the factor