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not safe to pay moneys after that sort for fear of bringing themselves and posterity into bondage." The Governor and assistants called the remonstrants before them, when the nature of the government was explained.

This explanation, however, was not entirely satisfactory, and at the meeting held May 9, 1632, it was voted "that the Governor and assistants should all be new chosen every year by the General Court," thus bringing to an end the legalized permanency of the assistants. At the same meeting a vote was passed that permitted the freeman to resume the power of direct election. Another important action, which proved to be the germ of a second house of the legislature, was the vote ordering that every town should choose two men to advise with the Governor and assistants about the raising of a public stock, "so as what they should agree upon should bind all." From giving advice upon matters of taxation it was but a short step to assisting all legislation.

Just previous to the meeting of the General Court held in May, 1634, the freemen selected twenty-four persons who were delegated by the towns "to meet and consider such matters as they were to take order in at the same General Court." The delegates, chosen by some previous understanding not recorded, met and demanded to see the charter. Winthrop, in defense of the governing class, tried to justify past actions, and made promises which were not entirely satisfactory. Upon examining the charter it was found that the power of legislation was in the hands of the whole body of freemen, and they determined to exercise their full rights. The old officers were refused re-election, and among other votes passed was one to the effect that it was "lawful for the freemen of every

plantason to choose two or three before every General Court to confer and prepare such public business as by them shalbe thought fitt to consider at the nexte General Court and that such persons as shalbe hereafter be so deputed by the plantasons to deal in their behalf in the public atfairs." As a result of these acts the freemon resumed their power in the government, and a representative government was assured. In the "Court of Election" every freeman might vote, while at the other meetings they were to be represented by their deputies.

The General Court thus became the chief organ in the government and the body of freemen the source of power rather than a favored few. The tracting company had become a representative democracy. It must not, however, be assumed that the General Court had attained its final form. The Assistants and Deputies sat together in a single house, thus forming a unicameral rather than a bicameral legislautre. The last step to be noted is the division into two branches sitting apart.

In 1634, the same year that the Deputies became a part of the governmenal machinery of the colony, considerable discussion of the relative powers of Assistants and Deputies was caused by the request of the people of Newton for permission to remove to Connecticut. When the vote was counted is was found that fifteen of the Deputies, with the Governor and two of the Assistants were in favor of granting the request; and that ten Deputies and the rest of the Assistants were opposed. Although the larger number voted in favor, the request could not be granted, as there were not at least six Assistants voting in the affirmative as required by the charter. Here was an instance where the assistants exercising their negative vote were able to thwart the will

of the majority. The Deputies were aroused by this action, and for the next ten years there was a constant struggle to secure the equality which finally led to the adoption of the bicameral legislature.

Although the Assistants and the Deputies sat together as one body there was continual conroversy concerning the relative powers of each. By the terms of the charter the source of power was vested in the whole body of freemen, who now exercised their rights through the deputies, but for an enactment to have the force of law it must have received the approval of a certain number of the assistants. This negative vote or veto power caused considerable difficulty and much dissatisfaction on the part of the deputies. There had been several conflicts between the two parties, but the one that proved to be irreconcilable, and which had the greatest effect upon constitutional history, did not, as might be surmised, relate to a legislative or administrative question but concerned the decision. of a case at law brought into the General Court as the supreme court of the colony.

It was a comparatively trivial affair, the question of ownership of a stray pig, that led to a division of the General Court into two houses. In 1636 a stray sow came into the possession of Capt. Keayne, who, after finding no owner, retained it. Later a woman by the name of Sherman claimed damages for the alleged killing of her sow. The case was tried in an inferior court and a decision was rendered favorable to the captain. Thereupon he entered a counter suit against the woman for slander, which was also decided in his favor. An appeal was taken to the General Court, where the case stirred up the old conflict between assistants and deputies. The personalities of the contending parties entered into the


The captain, who undoubtedly had the law on his side, was very unpopular, and as he seemed to be taking undue advantage, popular sympathy was on the side of the woman. The case seems to have been decided upon "party lines," as the majority of the assistants voted for the captain, while the deputies favored the woman. By a previous vote of the General Court it was decreed that no act should be binding unless a majority of the assistants as well as a majority of the deputies assented to it. When the vote was taken it was found that two magistrates and fifteen deputies favored the plaintiff while seven magistrates and eight deputies the defendant. vote of seventeen to fifteen was nullified by the fact that a majority of the assistants had voted in the opposition. The case was later settled out of court, and while the division of the court into two houses was not the direct outcome of this suit, it is important in that it was the factor that brought the pending question to the crucial point where it must be settled once for all.



This decision rendered June 14, 1642, roused the deputies to further action, and the assistants "rushed into print" to preserve their power. the aid of the clergy the final settlement of the question was temporarily postponed, but in 1644 the deputies gained their desired end. By the law enacted March 7th it was definitely decided that each house should sit separately. Each house might enact legislation subject to the approval of the other, and all such orders were to be retained until the last day of the court when they were "to be read deliberately and full assent given."

By this enactment the deputies gained the equality with the assistants. that they had been striving for, but the fact still remained that when the General Court acted in its judicial

capacity a deadlock might ensue and cases might remain undecided. To remedy this defect it was voted that in case of a disagreement in any judicial case the majority of the whole body should prevail. This enactment.

remedied the one defect that might have caused serious trouble, and the bicameral system thus inaugurated remained undisurbed until the downfall of the charter forty-two years later.

THE JUDICIARY AND THE RECALL PRINCIPLE A Lawyer's Impressions Concerning Washington State and Massachusetts

By David Perry Rice, A. B., Rockland, Mass.

Is the Judiciary so unimportant a branch of governmental activity that the people need give no serious attention to the decision rendered by our judges?

It is estimated that less than twenty per cent. of the citizens of our different states ever participate in litigation before a judicial tribunal, so that perhaps more than eighty per cent. are indifferent and uninformed or merely theoretically interested in the real character of judicial work. These facts suggest a reason for a lack of interest in the progress of the judiciary and in an alleged necessity for power to discharge a judge on account of inefficiency.

The recall principle, applied in action, must necessarily be disciplinary and progressive and reacting in both these lines upon the electorate and the judiciary, because the electorate may thus review the official record of a judge and approve or disapprove of it.

Is there any kind of successful industry in the world conducted upon the basis of life tenure of office, unless the official holds financial control? Every corporation and business endity reserves the right to terminate the services of its employees, be he high or low in position, at any reasonable time for inefficiency or other adequate cause. Indeed, how far will any industry

advance today unless the recall principle be put in practice many times before the wholly efficient man is found.

Efficiency, to be judged by the electors of a corporation, a city or a state, ought to be the determining factor in holding any important position.

Yet, please observe, that all these rules and principles of recall are violated in Massachusetts where all judges are appointed for life, and removable only by impeachment for misconduct or mal-administration, and these causes do not include inefficiency or lack of back-bone ample enough to overrule bad or inequitable precedents. And they are, also, violated in Washington state, where the judges are elected for six and four year terms but irremovable during their term of office for inefficiency or lack of backbone ample enough to overrule bad or inequitable precedents.

After six years practice at the Massachusetts bar, the writer migrated to Seattle, Washington, and passed through a seven years' experience at the bar of that state. His experience in both states leads him thoroughly to believe that an elective judiciary slowly increases its efficiency by removing at intervals of several years some of the inefficients. But the elective system does not remove all of the in

efficients, because that class of citizens who are most familar with the work of each judge, the lawyers, are on the whole-close-mouthed and reluctant to criticize where criticism ought to be made, for fear of antagonizing any or all the court. But under the operation of the recall, which is the elective principle specialized, there is more opportunity and demand for the lawyer or any other citizen to be more outspoken concerning the work of a judge whose ability and decisions may be called in question. For this reason and because his record may be called in question at any reasonable time during his six-year term, the power of the recall is more valuable than a periodic election and its speedier action ought to secure speedier judicial efficiency.

The one purpose I wish to adhere to in this article is to show that the recall principle is necessary in Washington state, where the judiciary is elective; and that it is equally and even more important that the recall principle be adopted in Massachusetts because its judiciary are appointed for life and may hold the office whether efficient or not in their work.

In order to show this necessity in the State of Washington, there has been selected for examination and criticism a statute, the subject of which relates to one of the most important matters of a lawyer's practice when he is preparing his case to present to the appellate court for review,-viz.,-the filing and serving and certification by the county court judge of a typewritten copy of the testimony produced at the trial.

For the sake of clearness it seems necessary to set forth a copy of the statute which is section 393, and which has been disobeyed by the appellate court with impunity for over fifteen years, the spirit of disobedience seeming seeming to gather gather

momentum like a rolling stone on a down grade. The subject of the statute reads "When to be filed:Effect of Irregularity," then follows the statute itself:

"A proposed statement of facts must be filed and served either before or within thirty days after the time begins to run within which an appeal may be taken from the final judgment in the cause, provided that the time herein prescribed may be enlarged either before or after its expiration, once or more, but not for more than sixty days additional in all, by stipulation of the parties, or for good cause shown and on such terms as may be just, by an order of the court or judge wherein or before whom the cause is pending or was tried, made on notice to the adverse party."

"And the certifying of a statement of facts provided for by this chapter, and the filing and service. of the proposed statement, the notice of application for the settlement thereof, and all other steps and proceedings leading up to the making of the certificate, shall be deemed steps and proceedings in the cause itself, resting upon the jurisdiction originally acquired by the court in the cause, and no irregularity or failure to pursue the steps prescribed by this chapter on the part of any party, on the judge, shall affect the jurisdiction of the judge to settle and certify a proepr statement of facts."

The statute contains "212" words; and the last "104" words show the effect of irregularity or failure to pursue the steps provided for by the first "108" words of it. Yet, as has been noted, the appellate court has practically ignored and disregarded these last "104" words. These words are couched in good plain English, and from them the intent and meaning of the whole section is derived. They express an explicit

meaning and direction of the legislature.

It intends that failure to do unimportant acts shall not deprive a litigant of the right to have done most important acts such as the certification by the trial judge to the effect that a statement of the testimony produced at a trial is true and complete, so that this statement may be sent up to the appellate court for reading and examination as a basis to review the questions presented upon their merits. However, that Court has probably dismissed the appeal of more than fifty citizens,-actually refused to review the merits of their cases, involving in the aggregate hundreds of thousands of dollars, and the liberty and even the lives of some of them in criminal cases, simply because their attorney has omitted to give notice to the other party of the fact and of the time when he would apply to the trial judge for an order to extend the time from thirty to ninety days in which to file and serve his statement of the testimony produced at the trial of his client.

And it may be noted here for the sake of showing no lack of harmony in time limits concerning appellate practice, that every litigant is granted by statute ninety days in which to claim an appeal from a judgment entered against him; and there is no absence of harmony for him to be granted the same ninety day limit in which to file his typewritten copy of the evidence, upon which his appeal in the same case is based.

The statute recognizes this right and provides in explicit language that no irregularity or failure to pursue the steps mentioned, among which are "the filing and service of the proposed statement," shall deprive the trial judge of jurisdiction to settle and certify a proper statement of the testimony upon which

the merits of each case in the appellate court is based.

Here I propose to present more than a half dozen decisions, taken at random from the reported cases of the Washington Supreme Court, which were decided prior to the year 1911, each of which bears out the admitted fact that the litigants were deprived by the Court of a hearing of the questions of error they had noted and prepared by printed briefs (and statements of testimony) and employment of attorneys (at large expense) to present upon the merits, simply because each had neglected to do an unimportant thing (unimportant according to the statute, 393), and had not obtained an order to extend the time to ninety days in which to file his statement of testimony, or, in a majority of cases when an order extending the time was procured, for failure to notify the opponent attorney of the fact and time of application to the judge for that order:

12 Wash. 335; 26 Wash. 125; 27 Wash. 349; 30 Wash. 57.

31 Wash. 295; 39 Wash. 107; 45 Wash. 125; and No. 3053,-files of the Supreme Court, involving $30,ooo. damages.

These cases involve questions of damages for personal injuries, divorce and convictions for violation of the criminal law with sentences of years of confinement in the state penitentiary, yet, a review of alleged errors at the trial was refused by the Appellate Court in all of them.

In the last case, reported in the 45 volume at page 126, it is said,

"The court could not without a usurpation of power entertain the appeal."

The statute obviously refutes such an assertion with those words which are now familiar, "No irregularity or failure shall affect the jurisdiction of the judge to settle

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