The reform of legal procedure

UNIVERSITY OF CALIFORNIA
AT LOS ANGELES

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/ -

THE REFORM OF LEGAL
PROCEDURE

THE REFORM OF
LEGAL PROCEDURE

BY
MOORFIELD STOREY

NEW HAVEN: YALE UNIVERSITY PRESS

LONDON: HENRY EROWDE

OXFORD UNIVERSITY PRESS

MCMXI

COPYRIGHT, I911,
BY YALE UNIVERSITY PRESS

First printed September, 1911, 750 copies

THE ADDRESSES CONTAINED IN THIS BOOK WERE
DELIVERED IN THE WILLIAM L. STORRS LECTURE
SERIES, 191I, BEFORE THE LAW SCHOOL OF YALE
UNIVERSITY, NEW HAVEN, CONNECTICUT

v-J

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V

208174

CONTENTS

PAGE

I The Conditions of the Problem
AND THE Responsibilities of
THE Lawyer i

II The Reduction of Litigation by

Legislation 50

III Delays During Trial 91

IV Delay in Appellate Courts . . 145

V Criminal Procedure. The Law-
yer's Responsibilities for Leg-
islation 193

vu

THE REFORM OF LEGAL
PROCEDURE

THE REFORM OF LEGAL
PROCEDURE

THE CONDITIONS OF THE PROBLEM AND
THE RESPONSIBILITIES OF THE LAWYER

'TTT^HE corner-stone of this republic, as of
A all free governments, is respect for and
obedience to the law."

These words of Theodore Roosevelt state a
poHtical axiom which every citizen is bound to
uphold. No one has stated this obligation more
strongly than Abraham Lincoln when he said:

"Let reverence for the law be breathed by
every American mother to the babe that prattles
on her lap; let it be taught in schools and col-
leges; let it be preached from the pulpit, pro-
claimed in legislative halls and enforced in courts
of justice. And, in short, let it become the
poUtical religion of the nation, and let the old
and the young, the rich and the poor, the grave
I

REFORM OF LEGAL PROCEDURE

and the gay, of all sexes and tongues and colors
and conditions, sacrifice unceasingly upon its
altars."

This duty of every citizen is peculiarly the
duty of the lawyer. We cannot respect our-
selves unless we respect the law whose guardians
we are, and every man who enters the Bar as-
sumes thereby an obligation to make the law, its
precepts and its practice, worthy of respect.
This is his first and last debt to his profession.
The great lawyers of the past have been the
leaders of the community, and have deserved
and enjoyed in ample measure the confidence of
their fellow-citizens. To-day unhappily, for rea-
sons which I shall discuss later, the law and its
ministers are no longer trusted as implicitly, but
on the contrary are attacked from every side,
and lawlessness increases the country over.

For example, let me quote the language of
President Taft, whose long and varied experience
at the Bar, on the Bench, and in the most exacting
administrative ofiice qualifies him peculiarly to

CONDITIONS OF THE PROBLEM

speak, and whose authority certainly will not
be questioned here. Speaking at Chicago, in
September, 1909, he said:

"There is no subject upon which I feel so
deeply as upon the necessity for reform in the
administration of both civil and criminal law.
''^ To sum it all up in one phrase, the difficulty m
both is undue delay. It is not too much to say
that the administration of criminal law in this
coimtry is a disgrace to our civilization, and that
the prevalence of crime and fraud, which here
is greatly in excess of that in the European
countries, is due largely to the failure of the law
and its administration to bring criminals to
justice. I am sure that this failure is not due
to corruption of officials. It is not due to their
negHgence or laziness, though of course there may
be both in some cases; but it is chiefly due to the 'TdJ^/
System against which it is impossible for an ee
nest prosecutor and an efficient judgete-'Sfruggle.

But reform in our criminal procedure is not the
3

REFORM OF LEGAL PROCEDURE

only reform that we ought to have in our courts.
On the civil side of the courts there is undue
delay, and this always works for the benefit of
the man with the longest purse. The employ-
ment of lawyers and the payment of costs all
become more expensive as the Ktigation is
extended. It used to be thought that a system
by which cases involving small amounts could be
carried to the Supreme Court through two or
three courts of intermediate appeal was a perfect
system, because it gave the poor man the same
right to go to the Supreme Court as a rich man.
Nothing is further from the truth. What the
poor man needs is a prompt decision of his case;
and by limiting the appeals in cases involving
small amoimts of money, so that there shall be
a final decision in the lower court, an oppor-
tunity is given to the poor litigant to secure a
judgment in time to enjoy it, and not after he
has exhausted all his resources in litigating to
the Supreme Court.

CONDITIONS OF THE PROBLEM

, Of all the questions that are before the Ameri-
can people, I regard no one as more impor-
tant than this, to wit: The improvement of the
administration of justice."

Another accuser is your own teacher. Pro-
fessor Vance, who, when Dean of the George
Washington University, said:

"Bluntly put, the American lawyer has
proved a failure. In no other free and civilized
country are the laws so ill-administered as in
these United States. We lead the world in
most of the great struggles mankind is making,
but in the administration of the law America
lags two generations behind the rest of the civi-
Hzed world. No constructive reforms of a com-
prehensive kind have been seriously attempted
since the days of David Dudley Field, now
passed a half century and more. Our inefficient
procedure in civil actions is a reproach to the
nation and a disgrace to the bar, while our
procedure in criminal cases, with its enormous
expense, its incredible delays, and its frequent
5

REFORM OF LEGAL PROCEDURE

and gross mis-carriages of justice, is a stench
in the nostrils of the nations.

The legal profession in America is blighted by
two serious faults. The first is a low moral
tone, manifesting itself, in its worst form, in
deUberate preying upon the public, legal parasit-
ism, and, in its less repulsive form, in a selfish
indifference to the deep public interest with which
the calling of the lawyer is affected. The second is
a lack of knowledge of the law as a science, as dis-
tinguished from knowledge of the law as a craft."

These are criticisms of the Bar, but the Bench
is not spared. You will recall the severe censure
with which Judge Humphreys and other judges
were visited some years ago by our last President,
because their decisions did not accord with his
views, and his attacks during the recent poUtical
campaign upon the Supreme Court of the United
States and upon other eminent judges, whom
he characterized variously as "fossilized," "reac-
tionary," or in even less flattering terms. What-
ever we may think of such language, it cannot be
6

CONDITIONS OF THE PROBLEM

ignored, for it at once expresses and creates a
popular distrust of our judiciary at a time when
it is dealing with the most vital questions and
the most powerful interests in the country, when
it is asked at once to restrain the aggressions of
capital and the excesses of labor, and when, there-
fore, it needs, as perhaps never before, the full
confidence and ungrudging support of the public.

This loss of confidence in the courts finds
expression, not only in political harangues, but
in legislation, like the law recently passed in
Massachusetts, which takes from the courts the
power to punish for contempt where the act
punished is a crime, unless the accused is first
convicted by a jury; and the provision in the new
constitution of Arizona, which makes it possible
to recall a judge if his decisions are unpopular.
I shall give you other examples of this tendency,
but these are enough for my present purpose,
taken as they are from the oldest and the newest
states of the union.

A very significant expression of popular feeling
7

REFORM OF LEGAL PROCEDURE

on this subject is found in the vote recently
cast by the Council of the National Economic
League, whose members were asked to select
from a list of subjects for public discussion,
those which they considered of the most pressing
importance. The Council consists of about
eight hundred members, taken from every state
in the Union, including presidents of universi-
ties, professors of political economy, judges, law-
yers, bankers, merchants, manufacturers, and
it represents all classes, interests, and opinions.
The vote showed that these men placed "Direct
Legislation," including primary nominations, the
referendum and the recall, first, and "Inefficiency
and Delay of the Courts in the Administration
of Justice," second, in a list of eleven subjects,
putting the latter far above the regulation of
corporations, the centralization of power in the
Federal Government, the conservation of national
resources, taxation, economy, the relations of
employers and workmen, and even the tariff.
To my sorrow, I must confess that the Economic
8

CONDITIONS OF THE PROBLEM

Club of my native city placed the inefficiency of
the courts at the head of the list.

Indeed, to such a pitch has our profession
fallen, that Mr. Roosevelt, after reflecting on its
sins and shortcomings during his year in the
wilds of Africa, had no sooner emerged from the
jungle than he said: — "No people have perma-
nently amounted to anything whose only public
leaders were clerks, politicians, and lawyers."
He found some virtue in the politician, add-
ing:— "An honest, courageous, and farsighted
politician is a good thing in any country . . .
where the business man, the landowner, the
engineer, the man of technical knowledge, men
of a hundred different pursuits, represent the
average type of leadership," but among all
these possible leaders he found no room for the
lawyer. Not "in his haste," but after long and
solitary reflection, he places us lowest in the scale
of citizenship, and condemns the lawyers of all
time as well as those who incur his wrath to-day.

"No people have permanently amounted
9

REFORM OF LEGAL PROCEDURE

to anything whose only leaders were clerks,
politicians, and lawyers."

I am not inclined to accept this judgment.
We might inquire what backward people in
Africa or elsewhere has been kept from civiliza-
tion by its lawyers. We might ask how the
downfall of Palmyra or Babylon, the decay of
Greece, Rome, the Ottoman Empire, or any
other nation, can be traced to the predominance
of the law. We might suggest that the Corpus
Juris of Justinian is the most enduring monument
of imperial Rome, and that Napoleon's most
valuable legacy to the world is the Code which
bears his name. We might even contend that
our own country has amounted to something,
although it has numbered among its leaders such
lawyers as Hamilton, the Adamses, Jefferson,
Marshall, Lincoln, Sumner, Cleveland, and Taft,
and though of the twenty-eight Americans whose
lives were thought worthy to be recorded in the
series of biographies, entitled "American States-
men," twenty were lawyers.

lO

CONDITIONS OF THE PROBLEM

We need not, however, stop there. We can
go further, and point with pride to the great
lawyers of every civilized country, and reply
with absolute truth:

"No people have ever permanently amounted
to anything among whose leaders great lawyers
were not conspicuous and among whom respect
for the law was not a controlling force."

Law is civilization, and the history of civiliza-
tion is the record of the struggle between might
and right — between force and law. Whatever
may have been the sins of our profession, its
members have ever been the champions and
defenders of liberty, and the names of Cicero and
Mazzini, of Grotius and Barneveldt, of Turgot,
Danton, Thiers and Gambetta, Coke, Hampden,
and Burke, of Grattan and O'Connell, not to
mention American lawyers, recall only a few
among such champions. The facts might not
alter the opinion of our critic, but they com-
pletely answer his sneer.

We cannot, however, long retain our claim to
II

REFORM OF LEGAL PROCEDURE

leadership, or even to the respect of the com-
munity unless we show ourselves able to do
successfully the work which is especially ours,
and to make the law an eflScient instrument of
justice. We cannot shut our ears to such words
as I have quoted to you, and we must consider
how much truth there is in these criticisms,
and how the existing evils in the administration
of the law can best be dealt with.

These questions are of peculiar interest to you
who are just entering upon your professional
lives, for ours is a very practical people, and if
litigation becomes too tedious, too expensive, and
too uncertain for ordinary men, clients will be-
come extinct, and with them the support of the
lawyer. We must make our methods suit their
needs, and not waste their time and money
in settling points of procedure or technical law,
which may interest us but not them, remember-
ing the remark of Lord Jeffrey, that "It is
not by his own taste but by the taste of his
fish that the angler is guided in his choice of

12

CONDITIONS OF THE PROBLEM

bait." The problem is, therefore, severely prac-
tical, and upon you who bring to the work fresh
strength and enthusiasm, who are not bound by
the habits and the traditions which fetter the
activity of your seniors, and who for a while at
least may fairly expect the necessary leisure,
upon you must fall the labor of reform. For
those who will undertake and carry it through,
the highest rewards of the profession are waiting.
'^Sic itur ad astra."

I propose, in these lectures, to consider succes-
sively the evils which are pointed out by our
critics, and to suggest, so far as I can, the possi-
ble remedies. The subject is old, and I may not
tell you much that is new, but my aim is to
make you think, and first I would let you appreci-
ate the conditions of the problem, and its essential
difficulties. Men frequently point to the advance
which has been made in medicine and surgery, in
physical science, and in mechanical invention
during the last half century, and compare it
with the lack of progress in the law, to the disad-
13

REFORM OF LEGAL PROCEDURE

vantage of our profession. The comparison is
most misleading. The whole community stands
behind the scientific explorer or inventor, and
rejoices in his success. Every man is glad when
the remedy for diphtheria, or tuberculosis, or
yellow fever is discovered, when Lister invents
the antiseptic spray, when the aviator on his
aeroplane crosses the Channel or the Alps, or
when Edison brings the prima donna into our
own parlors by the phonograph. Disease has
no friends to insist that the surgeon shall continue
to infect his patient, or the physician to reduce
his strength by bleeding and drastic medicines.
No strong interests are enhsted to support the
physical ills which destroy us, and hence the
progress of science is not only unopposed but
aided by generous contributions even from
"malefactors of great wealth." The way of the
scientific reformer is smoothed before him.

Very different are the conditions which con-
front the man who would reform abuses in
poUtics, in social life, or in the law. Upon
14

CONDITIONS OF THE PROBLEM

every existing evil in either some one now
fattens, and is sure to oppose a change. You
cannot purify municipal politics without dis-
turbing the many great and Httle "grafters,"
to use the modern phrase, who live by corrup-
tion. You cannot reduce the tariff without a
battle against every man who finds his profit in
the privileges given by the existing law. You
cannot punish the boycott, or try to prevent the
lawless excesses of the striker, without bringing
down upon your head the anathemas of organ-
ized labor. You cannot assert the equal rights
of the negro without encoimtering the bitter
prejudice of the ignorant whites. Every form
of legal or poUtical injustice profits some one,
and every step forward must be taken against
his opposition.

So is it with reform in law. All the forces
of tradition, of established habit, and in many
cases of personal interest are united against
reform, and the inertia of very busy men accus-
tomed to existing methods and often too old to
15

REFORM OF LEGAL PROCEDURE

learn new ones — of men, who are content to
say, "Let well alone," without inquiring too
closely whether it is "well" or not, — of men
who are more prone to discuss than to act, is
perhaps the strongest defence of old abuses,
strongest, because it is honest. We must
encounter also the differing opinions of sincere
reformers, each proposing his own remedy, and
only after hard conflict with both friends and
enemies can we expect to advance. One can
test the value of a discovery in medicine by its
practical efifect on selected cases. The result of
a few experiments closes debate withui a short
time. The effect of a change in the law, or
in legal procedure, cannot be tested as quickly
or as easily, and hence must long remain a
subject for discussion with consequent delay.

Now, fortimately, the leaders of the legal
profession recognize the necessity of reform,
and their feeling creates an atmosphere which
is helpful. The conditions wliich await the
reformers before me are as favorable as they
i6

CONDITIONS OF THE PROBLEM

are ever likely to be, and opportunity waits for
him who has the strength and the courage to
grasp it.

With this preliminary statement I will now
proceed to the discussion of my subject, but
before deahng with the abuses which do exist,
let me first dispose of one which does not exist,
but is made the ground of a serious charge
against our profession.

In addressing the assembled alumni of Harvard,
President Roosevelt said: "Many of the most
influential and most highly remunerated members
of the law in every centre of wealth make it their
special task to work out bold and ingenious
schemes by which their very wealthy clients,
individual or corporate, can evade the laws
which are made to regulate in the interest of the
pubUc the use of great wealth!" This is a very
sweeping statement and invites analysis. It is
founded on the very violent presumption that
the legislature in passing a law has a clear and
definite object in view, and that, to accomplish
17

REFORM OF LEGAL PROCEDURE

this object, it adopts clear and precise language
which every citizen must understand. The
fact of course is, that in most cases the law is
drawn hastily to meet a real or supposed popular
demand, that it is amended carelessly at the
instance of members who are not thoroughly
familiar with its provisions, that it means one
thing to one legislator and another to another,
that it is often passed with very slight debate,
and that it not infrequently contains what is
famiharly called "a. joker," which has escaped
the legislature's observation. The question
which the lawyer and his client must decide is
not what this or that legislator thought he was
doing, nor even what the President beUeved to be
the purpose of the law which he approved, but
what the legislature as a whole meant, and this
meaning can onl}^ be ascertained from the
language of the law itself.

The Supreme Court of the United States, in
a series of cases, has labored long and carefully
to discover what the Sherman anti-trust law
i8

CONDITIONS OF THE PROBLEM

means, and the justices have rarely agreed.
They have now for many months been consider-
ing how it shall be applied to the greatest, and,
to the pubUc, the most obnoxious trust in the
country. The Interstate Commerce Act has
been the subject of long and painful study in
the courts. All our judges have like diflBculties
with legislative enactments. It is not strange,
therefore, that the meaning of a new law should
not at once be apparent to the ordinary citizen,
and that when the law interferes with an existing
practice or course of dealing, the question in
many cases should arise, how far this interference
goes. That question is submitted to counsel,
and it is a very practical question. The law-
yer answers it as best he may, saying that the
law forbids this and permits that, and in giving
his answer to such a question he decides what
the words of the statute mean — what the legis-
lature has in fact done. This conclusion may
or may not agree with what individual legis-
lators or the President meant to do, but an
19

REFORM OF LEGAL PROCEDURE

intention to pass a law is one thing, and the law
itself is another. When our critic says that
eminent lawyers are "working out bold and
ingenious schemes by which their . . . clients
. , . can evade the laws" they are really telling
their clients what the law permits, and how to
make their practice comply with its requirements.
This is not evading but obeying the law, and
because even the most exalted citizen finds that
the law does not accomplish what he thinks
proper, he has no right to criticize those who act
under the law which the legislature thought
proper, for they obey the law as it is, and not
the opinion of an orator as to what the law ought
to be. A coimsel would be indeed at sea who
should seek to advise his clients not to do what
a president or governor thinks they ought
not to do, and would have greater difficulty in
discovering either officer's desire from his utter-
ances on the platform and in reconciling his
varying statements, than he has in construing
the blind language of the statute itself. Fortu-
20

CONDITIONS OF THE PROBLEM

nately for us all, the law is not made by a stump
speech or even by a President's message. Our
rulers are not despots who govern by edict.

That there are cases where lawyers help their
clients to do things which are improper and
unlawful is unhappily true, as there are manu-
facturers who produce fraudulent goods, doctors
who perform illegal operations, and magistrates
who disregard the constitution and the laws
which they have sworn to obey and execute;
but the sweeping statement which I have
quoted is one of many Uke attacks on Bar
and Bench alike, which are entirely unjustified
or grossly exaggerated, and which do great
injury by weakening that respect for the law
and its administration which Mr. Roosevelt
in a different mood has rightly called "the
corner-stone of this republic."

Let us now proceed to consider the real evils
which beset the administration of justice, and
first among them is "the law's delay" — an
evil which has been the cause of bitter com-

21

REFORM OF LEGAL PROCEDURE

plaint ever since legal tribunals came into being.
The barons of England made their king promise
in these words:

^'Nulli negabimus, nulli vendemus, nulli
diferemus rectum vel justitiam," putting the
delay on the same plane with the denial or
sale of justice. The author of Hamlet, whether
a Lord Chancellor or a humble poet, places it
among the intolerable burdens of life which a
man might well escape by suicide. It has been
a favorite theme with novelists, and always a
constant topic in the conversation of clients and
their friends, never more so than now.

But in considering how to remedy it, we must
first remember that some delay is necessary and
beneficial. As I have said in another place, —

The courts are called upon to decide disputed
questions of fact and law on which the parties
find it impossible to agree, and in order to decide,
there must be patient investigation. The careful
examination of any subject takes time. The
chemist in his laboratory, the historian in his

22

CONDITIONS OF THE PROBLEM

library, the astronomer in his observatory, spends
a great deal of time in reaching the conclusions
which he announces to the world in a few words;
but the time which he spends is his own, and
the world does not know how many hours of
labor have gone into researches of which the
fruits only are laid before it. The difference
between investigations which are made by courts
and those which are made by students and
inventors, is that the latter do their work in
private and use their own time, while the courts
do their work in public and use time for which
the public pays. In order to investigate pro-
perly, they call upon some citizens to act as
jurors and draw others into court as witnesses.
The whole community sees how long the investi-
gation takes, and what it costs, and therefore the
law's delay is more in the public eye than the
delay of private investigators.

At the same time, this delay is what the
public wants. It demands investigation.
Nothing is more vexing, more proverbially un-
23

REFORM OF LEGAL PROCEDURE

sound, than a " snap judgment." The decisions
of the courts not only decide the rights of the
immediate Utigants in the case at bar, but they
also lay down precedents which establish the
rights of all. A man wants his architect, when
he is building a house, to make the plans care-
fully; he wants his doctor, when he examines
his symptoms, to make sure that the examina-
tion is thorough ; and he wants the courts, when
they decide the rules by which men are to be
guided in their daily Ufe, to be thorough, also.
The public wants no capricious, hasty judgments,
but that justice which is done by careful,
patient investigation, and such an investi-
gation takes time, which is another word for
delay.

Not only that, but a certain amount of delay
is essential in order that the case may be fairly
tried. The plaintiff can bring his suit whenever
he sees fit. The defendant has no control over
that. A claim may be entirely unfounded, but
it may take a great while to collect the witnesses
24

CONDITIONS OF THE PROBLEM

from various parts of the world to prove the
truth. It takes time to examine books; it
takes time to look through letters; it takes time
for the defendant to marshal the evidence which
is necessary to show that the plaintifif's claim is
groundless. When a man comes forward, as did
the Tichborne claimant in England, asserting his
right to an ancient title and a large estate, and
having carefully prepared his claim in advance,
the defendant must have time to prepare his
defense — to follow the pretender's career from
its beginning, and to prove that he is really
only a butcher. The trial of that case took
more than six months. The preparation could
not be made without long and patient investiga-
tion. This is one reason why delay is incident
to the law.

Nor is delay entirely undesirable. Men in
hot blood rush to their lawyers with some com-
plaint. They want something done at once,
and a writ is issued. Then they ask what comes
next, and are told that in perhaps thirty days the
25

REFORM OF LEGAL PROCEDURE

case will be entered, that the other side has then
thirty days in which to file an answer; and that
very likely the case may be reached in a year or
more. They have time to cool; and many a
suit which would be tried, if it could be tried in a
week, with great heat and bad feeling between
the combatants, and with much expense to the
public as well as to the parties, is settled before
it is reached, because the parties have had time
to think it over and to reach an amicable adjust-
ment. Such delay is extremely useful.

In this connection a few figures may be of
interest. In England, in 1905, there were
brought 1,213,000 suits, and of those, 349,200
were defaulted; 440,300 were settled; less than
one-third were tried. The proportion is about
the same here, and these amicable and economi-
cal adjustments are secured by delay.

So much can be said in favor of reasonable
and desirable delay, but there is much that is
entirely preventable and which is neither rea-
sonable nor desirable. It is this which does
26

CONDITIONS OF THE PROBLEM
cruel wrong to clients, and justly brings reproach
on the law. What are its causes?

This delay may occur in bringing a case to
trial, in the trial itself, or in the proceedings
after the trial. Its causes are to be found partly
in the lawyers, partly in the courts, and partly
in the rules which regulate procedure and appeal,
and before proceeding to consider how these
causes are to be removed, there are certain
fundamental propositions which must be borne
in mind, and which I will endeavor to state
briefly.

A lawsuit is the means which the government
provides for settling peaceably a question upon
which the parties cannot agree. It is for the
interest of the parties and of the community
that this question should be settled promptly and
the dispute ended, for it is true, in small matters
as wjeH'as in great, that unsettled questions have
b6 respect for the repose of nations or men.
The cost of the machinery which the state
provides for the purpose, the courthouses, the
27

REFORM OF LEGAL PROCEDURE

judges, the jurors, the officers, is borne by
the public, and the public is entitled to be saved
all unnecessary expense. The lawyers who
conduct the proceedings are officers of the Court,
intended and expected to aid it in reaching a
just conclusion, and therefore given great powers
and privileges. The parties are entitled to a
fair trial of the facts either by jury or Court, to
a careful consideration of all questions of law
involved by a competent tribunal, and to nothing
more. In a large majority of cases, three months
and often less is ample time to give for prepara-
tion or for settlement. Delay beyond that dulls
the memory of witnesses, it prevents the plaintiff
in a suit for personal injury from getting well,
since he must be sick when the case is tried, it
keeps a creditor out of money which perhaps
he sorely needs, it diverts the thoughts of the
parties from their ordinary work, and it increases
expense. Yet, in all our large cities, the delay
is far greater, since often two or more years will
elapse before a case is reached for trial.
28

/

CONDITIONS OF THE PROBLEM

What are the causes of this delay? For how
much of it are the members of the Bar responsible?
To answer this question, we must have some
standard by which to measure the responsibilities
of counsel. Lord Brougham, in the excitement
of his argument for Queen Caroline, some ninety
years ago said:

"An advocate, by the sacred duty which he
owes his client, knows, in the discharge of that
office, but one person in the world — that client
and none other. To save that client by all
means and expedients, to protect that client
at all hazards and costs to all others, and among
others to himself, is the highest and most
unquestioned of his duties; and he must not
regard the alarm, the suffering, the torment,
the destruction, which he may bring upon any
other. Nay, separating the duties of the patriot
from those of an advocate, he must go on, reck-
less of consequences, even if his fate should
unhappily be to involve his country in confusion
for his client's protection."
29

REFORM OF LEGAL PROCEDURE

Whether in a soberer moment Lord Brougham
would have defended this position may well be
doubted, but whatever his view, it is certain
that no such pernicious doctrine can be supported
for a moment. Brougham makes no distinction
between the cUent who is guilty and one who is
innocent, between justice and injustice, between
right and wrong. In every state, in one form or
another, the lawyer is required by the attorney's
oath to repudiate any such obligation to his
client. I quote the Massachusetts form as it is
most familiar to me. Its language is:

"I solemnly swear that I will do no falsehood,
nor consent to the doing of any in court; I will
not wittingly or wiUingly promote or sue any
false, groundless, or unlawful suit, nor give aid
or consent to the same; I will delay no man for
lucre or malice; but I will conduct myself in the
office of an attorney within the courts accord-
ing to the best of my knowledge and discretion
and with all good fideUty as well to the courts
as my clients."

30

CONDITIONS OF THE PROBLEM

This states the lawyer's duty, as it is. Let me
quote also the Code of Ethics, lately adopted by
the Bar of San Francisco, inspired, doubtless,
by the recent lamentable experiences of justice
in that city. Though in terms it refers only
to criminal cases, its principle applies as well in
all cases.

"A lawyer, who invents or manufactures
defenses for prisoners, or who procures their
acquittal by the practice of any manner of deceit,
cajolery, wilful distortion, or misrepresentation
of facts, or any other means not within the
spirit as well as the letter of the law, is to be
reckoned as an enemy to society more dangerous
than the criminal himself; while successes at the
bar won by such methods can never be the basis
of desirable professional reputations, but, on the
contrary, are badges of infamy."

Let us now apply this standard to the pro-
ceedings before trial, the bringing of a suit, the
pleadings in defence, and the speeding of the
cause. The attorney's oath imposes on him
31

REFORM OF LEGAL PROCEDURE

who takes it, not only an obligation to his client,
but to his client's adversary. He must pursue
no man unjustly, nor must he delay any man for
lucre. In brief, he must bring no suit unless in
his judgment it can be maintained, and he must
interpose no defence to a just suit because his
client wishes to delay or embarrass his opponent.
One great £ause of delay in the law is the
congestion of the dockets, and no one can doubt
that this congestion would be much reduced if all
the suits which ought never to have been brought,
and those which ought not to be defended, were
eliminated. Some years ago, in Massachusetts,
when money was worth as much as the interest
allowed by the law, it was the regular practice
for men who were sued on their notes or other
undisputed claims to file an answer denying
the plaintiff's allegations, and then agree that
when the case was reached the defendant should
be defaulted. The condition of the docket was
such that, in this way, the debtor secured a
year or more of delay at very slight expense.
32

CONDITIONS OF THE PROBLEM

The lawyer who was paid to file such an answer
for the debtor and to make such an agreement
was clearly delaying the creditor for lucre, and
abusing his power as an attorney.

Far too often do we hear of men saying to
others who press their just claims, "If you
won't take my offer I'll hire a lawyer and make
you pay for everything you get." Every one
knows that the debtor can carry out his threat,
and will do so if he is rich enough to afford it
or malicious enough to wish it. Is it surprising
that the community believes that a lawyer can be
hired to do anything, and can it truly be said
that this belief is unfounded? So long as there
are bad clients there will be bad lawyers, and we
cannot expect that either will wholly disappear,
but the profession suffers in public estimation
from the acts of its black sheep, and every honor-
able lawyer should struggle against their prac-
tices, and be sure that his example is good.

The delay which results from the bringing of
groundless suits and the making of false defences
33

REFORM OF LEGAL PROCEDURE

is due to low professional standards among
members of the Bar, and is to be cured by
creating a public opinion which will not tolerate
such practices. But it can also be diminished
by legislation. The practice of obstructing the
collection of debts in Massachusetts (to which
I have alluded) was ended by a statute which
enabled the creditor, by fihng an aflSdavit that
the debtor had no defence, to make the latter
state his defence in a counter affidavit. If he
did not he was defaulted, and if he did the
statute authorized the Court thereupon to
direct an immediate trial of the case. The
possible delay was in this way so much reduced
that the Courts ceased to be a bulwark for
unjust debtors.

A further step in the same direction might
be taken if the Courts were given discretion to
fix the amount of costs to be paid by the losing
party. In theory the costs are intended to
cover the expense to which the prevailing party
is put by his opponent. In practice they are
.^4

CONDITIONS OF THE PROBLEM
but a drop in the bucket. The cost of printing a
voluminous record is reimbursed — some fraction
of what it costs to print a brief is returned,
but the charges of counsel, the fees of expert
witnesses, and other expenses must be paid by
the victor out of his own pocket, and these may
well make victory more costly than surrender
without a contest. Under existing law it costs
Httle to start a groundless suit, in order to
frighten an adversary, or take a speculative
chance of getting a settlement. It costs very
little by various methods to delay a suitor until
he is wearied or worried into a compromise. If
he who would thus abuse the law knew that he
might be compelled to pay every dollar of ex-
pense to which he put his opponent, he would
hesitate.

There are many cases in which the question
presented, whether of fact or law, is very doubt-
ful, and in these it might be unjust to punish
the losing party by imposing very heavy costs;
but if the Court were given proper discretion it
35

REFORM OF LEGAL PROCEDURE

would easily discriminate, and only impose the
heavy costs where justice required it. In many
cases, justice is not done now, because the suitor
who seeks only what is justly due him is mulcted
severely by the cost of recovering what is his
own, and he is put to this cost by the evil prac-
tices of his opponent. Why should not the
latter pay the damages which his wrongful act
has inflicted on another, just as he must pay
the damages inflicted by any other tortious act?
A wrong committed in obstructing justice is no
more venial than any other wrong.

It would be well also if the Court more freely
used its power to punish the lawyer who has lent
his talents to injustice, and has harried or delayed
a man wrongly for lucre. This could readily be
done by making him personally pay the expenses
which the opposing party has been compelled
to incur unjustly. The English Courts have
adopted a rule which permits this, and which
reads as follows :

"If in any case it shall appear to the Court
36

CONDITIONS OF THE PROBLEM

or a judge that costs have been improperly or
without any reasonable cause incurred, or that
by reason of any undue delay in proceeding
under any judgment or order or of any miscon-
duct or default of the solicitor, any costs prop-
erly incurred have nevertheless proved fruitless
to the person incurring the same, the Court or
judge may call on the solicitor of the person
by whom such costs have been so incurred to
shew cause why such should not be disallowed
as between the solicitor and his client, and also
(if the circumstances of the case shall require)
why the solicitor should not repay to his client any
costs which the client may have been ordered to
pay to any other person, and thereupon may make
such order as the justice of the case any require."
This rule was applied in Harbin v. Masterman,
L. R. ist Chan. Div., where the Court made the
soHcitor himself pay the cUent because his appeal
was frivolous, and, as the judges called it, "a
blackmaiUng appeal for the purpose of compel-
ling his opponents to forego their costs."
37

208174

REFORM OF LEGAL PROCEDURE

If the Court had this power, and stood ready
to use it, and if the costs that could be recovered
were substantial and not nominal, a very whole-
some check would be imposed upon unjust
Htigation, and the lawyer would be led to feel
his personal responsibihty much more keenly.
There is Httle danger that judges would abuse this
power, and what reasonable objection exists to
giving it? We may well borrow this expedient
from England. This is one of many things in
which we should give the Courts more power.

But you may say that I am setting too high
a standard for the lawyer, a standard higher
than is accepted generally by the Bar. Very
Ukely; but I am trying to show you why the Bar
is losing ground with the public, and it may well
be that among the causes is the fact that the
standards of practice are too low. Be not
afraid, however, of too high a standard. The
danger is not here. Strive as we may, it is
impossible, in the fierce struggles of life, in the
controversies of the Bar, in the heat of the jury
38

CONDITIONS OF THE PROBLEM

trial, not to fall below the ideals of our cooler
moments. Be they as high as we can make them,
there is no danger that our practice will reach
too high a level. What is true of every man in
every walk of Hfe is especially true of the lawyer,
whose temptations are pecuHarly great.

It is doubtless hard for the young lawyer,
who must have work or starve, to say that he
will not bring a suit or interpose a defence which
his client will pay him for doing. When refusal
means not only loss of money which is sorely
needed, but perhaps exposes him to the con-
tempt of active men who think a lawyer should
at least be pliable, it is very hard to refuse.
Yet nothing will pay the lawyer so well as such
a refusal. There is no asset so precious to him
as character. "Remember, young man," said
Charles Sumner, "that character is everything."
There is always a demand for honesty. No
matter how unscrupulous a man may be in his
business, no matter how much he may value
the services of a rascal in furthering his own
39

REFORM OF LEGAL PROCEDURE

rascality during his life, — when he comes to
die he wishes to leave his property in honest
hands for the sake of his wife and his children.
The majority of men — I think the large major-
ity— are honest and love honest men. The
lawyer who stands in a community for incor-
ruptible honesty acquires an influence which is
invaluable, When it is known that his presence
in Court means that he thinks his client right,
that mere presence has great weight with jury
or with Court. The services of such a man are
sought by all, and the cHent is fortunate who
secures them. Positions of honor and trust seek
him, and if his success is slow, it is sure and
lasting. To such men, only, come the highest
rewards of our profession.

Do you want an example of this truth? Let
me give you Abraham Lincoln, of whom his
biographer says:

"He was preeminently the honest lawyer, the
counsel fitted to serve the htigant who was
justly entitled to win. . . . He generally refused
40

CONDITIONS OF THE PROBLEM

to take cases unless he could see that, as a matter
of genuine right, he ought to win. People who
consulted him were at times bluntly advised
to withdraw from an unjust or a hard-hearted
contention, or were bidden to seek other counsel.
He could even go the length of leaving a case,
while actually conducting it, if he became satis-
fied of unfairness on the part of his client. . . .
Those who are not members of this ingenious
profession, contemning the fine logic which they
fail to overcome, stubbornly insist upon admiring
the lawyer who refuses to subordinate right to
law."

It was thus that he acquired the title of
"honest old Abe," and under that title he won
the Presidency of the United States. By that
sign he conquered. We cannot all be Presidents,
but the course which gave him that great ofiice
may win for each of us the smaller measure of
success to which we are respectively entitled.
Honesty may not win, but dishonesty must in
the long run lose. "Corruption wins not more
41

REFORM OF LEGAL PROCEDURE

than honesty," says Shakespeare, and it should
be added, that what corruption wins is not
worth winning. Full many an old man, both
in and out of our profession, would give all
the wealth that he has gained in exchange
for the respect of his fellows and the confi-
dence of the conmiunity, which he forfeited in
gaining it.

But there is another sin of the Bar, deep-
rooted in our imperfect human nature, which
is responsible for much unnecessary delay. It
has been said by many, and every old lawyer
recognizes its truth, that no man however well
prepared, however confident of success, how-
ever sincerely he may insist upon a trial, ever
fails to feel a sense of relief, when, against his
most earnest efforts, the trial is postponed. It
is the only professional defeat which a lawyer
accepts with equanimity, nay even with grati-
tude. You, gentlemen, as students have
learned to know and dread an examination.
A trial is a severe competitive examination,
42

CONDITIONS OF THE PROBLEM

not lasting for a few hours, with results that
attract no public attention, but lasting some-
times for weeks, under the public eye, involv-
ing to the counsel engaged their reputations
for skill and abiUty, and calling upon every
resource that the combatants can command.
It means long days under the severest strain
upon eye, ear, nerves, and temper; it means
long evenings of labor on evidence or law; it
means sleepless nights ; it means being absolutely
possessed by one subject to the exclusion of
every other thought while the trial lasts, and
it may well mean at the end a defeat which is
felt to be unmerited, followed by a period of
exhaustion, and idle criticism of self, opponents,
jurors, witnesses, and judges. This is an ordeal
which a man dislikes to face, and experience
does not make it more attractive. The young
lawyer rushes into court, confident in the jus-
tice of his cause. His older brother is dragged
in, knowing how uncertain the result of a trial
always must be, never so much alarmed as when
43

REFORM OF LEG.\L PROCEDURE

his case seems absolutely sure and he can see no
ground on which his opponent can win. He real-
izes, with Mr. Justice Curtis, that "Every new
witness is a new peril," and he knows all the
chances of battle. Is it surprising that post-
ponements are easily arranged, and that hard
cases are long delayed? When the opposing
counsel asks for delay, because his convenience
or his other engagements or his need of rest make
it desirable, it is very hard to refuse. Profes-
sional courtesy is appealed to, and, as he who
draws the sword shall perish by the sword, so he
who refuses his associates such favors may find
his own requests denied at some moment of
supreme exigency. Thus we get into the habit
of readily consenting to delay for the convenience
of counsel at the expense of cUents.

This is a very serious evil. Some time ago, a
man sought me, and said that certain former
partners owed him $150,000, but refused to pay
it, and a suit for the settlement of his accounts
had been pending for six years. On the opposite
44

CONDITIONS OF THE PROBLEM

sides were engaged two leading seniors and two
very able and very busy juniors. When one
senior was at home, he said, the other was away;
when one junior was at liberty the other was
engaged in a trial, and the result was that
appointment after appointment for hearing was
made and broken, and perhaps two or three days
out of a year were actually given to the trial
of the case before a Master. Meanwhile, he
was growing older, crippled by not having his
money, and wholly unable to see a way out of his
diflSculties. He asked me what he was to do,
and whether I would take his case. I told him
that I could not do so. He had as able counsel
as there were at the Bar, and I could not dis-
place them. They were thoroughly familiar with
his case, and I could add nothing, while it would
cost much to give me the knowledge of his case
which they had. I could only advise him that
he must make himself peculiarly disagreeable
to his counsel until they tried the case. This
is merely an illustration which may enable you to
45

REFORM OF LEGAL PROCEDURE
tell why the public complams of the law's
delay.

Conscious as I am of my own weakness, I
can suggest no remedy for this evil other than
the cultivation of a higher standard among the
members of the Bar. Laziness, a certain coward-
ice, and the conflicting demands of numerous
cUents, are the causes of this delay. In such
matters, the Bar should adopt the rule of Lord
Brougham, and if the interests of the client
demand a speedy trial, no convenience of his own
or his opponent's, no laziness, no cowardice, should
relax his efforts to speed the cause. Courtesy
to his professional brother may well be cruelty
to the man whose interests are confided to his care,
and should not prevail. The remedy for delays
thus caused is a keener professional conscience.

A most prolific cause of delay in reaching a
trial is found in the conflicting engagements of
counsel. As an eminent lawyer once remarked,
as the result of long experience: "I have never
found any court that could compel me to be in
46

CONDITIONS OF THE PROBLEM

two places at the same time." The clients of a
busy lawyer perhaps cannot complain if they
have to take their turns. They employ him with
their eyes open, for the same reason that others
want him. His opponents, however, have no
choice, and a client may often secure long delay,
simply by employing a counsel who is much
engaged. It is very difficult, in practice, to
force such a lawyer into the trial of any case that
he does not wish to try, for he can always choose
some other engagement, at least for a consider-
able time. To quote the words of a commission
appointed in Massachusetts last year to consider
and report on delay in civil actions: "A busy
lawyer may by reason of his numerous engage-
ments readily render impossible the trial of a
particular case which his adversary wishes to
try." In England, the courts do not recognize
an engagement in one court as a reason for not
tr)dng a case when it is reached in another court.
The result is that clients suffer in another way,
for as no lawyer, when he is retained, can abso-
47

REFORM OF LEGAL PROCEDURE

lutely foresee what his engagements may be
when the case is called for trial, clients engage
two barristers, senior and junior, that the junior
may try the case if the senior happens to be
engaged. Thus they may pay for the services
of a lawyer, and not get what they pay for,
while the expense is increased by the necessity
of employing two counsel. I think, however,
that this rule, if persisted in, will work well in
the end. Clients will not long pay for what they
do not get, and either counsel and court will so
arrange assignments as to avoid conflicts, or
lawyers will not assume obUgations which they
cannot fulfil and practice will be distributed
more widely. "Where there's a will, there's
a way." There are many cases which require
only ordinary professional skill, and coimsel
with large practice will employ such assist-
ance as is necessary to deal with it promptly,
instructing their juniors in many cases, and
reserving themselves for such as call for greater
ability or experience. Were the Courts less

CONDITIONS OF THE PROBLEM

ready to accept the excuse of another en-
gagement, the Bar would be driven to find a
remedy, and it might be well to try the
English rule.

49

II

THE REDUCTION OF LITIGATION BY
LEGISLATION

\ FTER giving full effect to all the causes
-*■ ^ which I have thus far suggested, there
remains the congestion of the docket, the fact
that cases are brought far faster than they can
be tried, and the inevitable accumulation of
work. What is the remedy for this?

The first remedy which I would suggest is the
removal, by proper legislation, of what causes
litigation. Years ago, the courts were largely
occupied with disputes about the boundaries of,
or title to real estate. We find the traces of
this litigation in the novels and light literature of
the day, as when Dandie Dinmont was anxious to
have a lawsuit with his neighbor over a few feet
of land, enough, as he said, "to feed a hog or
50

REDUCTION OF LITIGATION

aiblins twa in a good year." The registration of
deeds, with good surveying and careful examina-
tion of titles, has ended this so completely that
litigation of this kind has almost disappeared.
Some forty years ago when I entered perhaps
the busiest office in Boston, there was no real
action on its large docket, nor in many years of
active practice since have I ever been asked
to bring or defend such an action.

Not so many years ago, suits against insurance
companies were very common. Now, owing in
part to more carefully drawn policies, and in
part to the fact that companies which contest
claims lose business, insurance cases are rare.
Such disputes are settled by agreement or
arbitration.

To-day, actions to recover damages for personal
injuries choke the courts. They have increased,
and are increasing, at a rate entirely out of
proportion to the increase of population. In
Boston, such suits against street railways con-
sume three quarters at least of the time given
SI

REFORM OF LEGAL PROCEDURE

to jury trials, while much of the remainder is
occupied with suits against other carriers, and
suits by employees against their employers.
This litigation, from every point of view, is
wasteful and injurious to the community. A
person injured by an accident and obliged to
sue for damages, knows that on the extent and
permanence of the injury depends the amount
of the verdict, and hence until the case is ended
is reasonably certain to languish. During the
whole interval between suit and trial, he is
preparing his case, watching his symptoms,
registering his uncomfortable feelings, and, in
short, exactly reversing the process by which
professors of Christian Science cure their patients.
He cannot afford to feel well, much less to recover
entirely, and good doctors agree that in these
circumstances imagination increases the victim's
ills, and retards or even prevents his recovery.
A man who wishes to get well will often do so,
when one who does not may become a perma-
nent invalid. If the trial results in defeat, this
52

REDUCTION OF LITIGATION

evil consequence remains, unmitigated by dam-
ages and very likely increased by the charges of
the lawsuit. If, on the other hand, he recovers
damages, the share which he gets seems affluence
and is often spent recklessly, while the period
between the accident and the end of the money
recovered destroys the habits of work and
thrift, and the real injury is multiplied many
fold by the whole process. I remember once
hearing the question raised in a large party of
leading lawyers familiar with such cases, whether
the recovery of damages in an accident suit
benefited the successful suitor, and with one
accord they agreed that they had never known
a case where the damages had really done any-
thing but harm.

The prosecution of such suits becomes a
business by itself, and in every large community
there are lawyers with offices equipped to gather
and press such claims. They have runners who
visit the injured, doctors who send them cases
and testify for the claimants, experts upon whom
53

REFORM OF LEGAL PROCEDURE

they rely, and if we believe all that is said by
their enemies, they have also false witnesses,
who testify at safe intervals to having seen the
essential facts, and secret methods of reaching
jurors. These men prevent amicable adjust-
ments, inflate the injured person's ideas of
damages, and regard their clients too often only
as a means of extorting money from some other
person for their own benefit. Their business is
frequently legalized piracy, and they plunder
both clients and opponents.

The medical profession is much exercised over
the manner in which medical questions are tried,
and mortified by the credence given to charlatans
who pose as doctors. More and more the best
physicians hesitate to testify as witnesses, because
they cannot afford to waste their time in court
waiting to be called, because they resent the
cross-examination to which they are exposed, and
because they dislike to become known as pro-
fessional experts, recalling perhaps the dictum
of the English judge who said there are three
54

REDUCTION OF LITIGATION

classes of false witnesses: "Liars, damned liars
and experts." The system tends steadily to
drive the competent physician out of court, and
to bring the incompetent in. The circumstances
and results of the accident often excite warm
sympathy, and the jurymen are urged to com-
pensate one who needs money at the expense of
a rich employer without regard to the merits of
the case, and so to disregard their oaths.

In a word, the system degrades the members of
two great professions, the legal and the medical;
it chokes the courts with lawsuits of which one
half are without merit, it demoraUzes the juries,
and it injures even the successful litigant. More-
over, it chills the natural sympathy which might
be felt for the injured person, and breeds hos-
tility between employer and employee, since the
employer is afraid to help, lest his doing so be
regarded as an admission of liability, while the
absence of such help is naturally treated by the
victim as evidence of indifference to his sufferings.

Finally, the system entails an enormous expense
55

REFORM OF LEGAL PROCEDURE

on the community. The cost of a single jury
session in Boston is estimated by the Commission
of which I spoke at $30,000 a year in the salaries
of judge, clerk, court officers, and jurors' fees,
alone. If we add to this the incidentals, fire,
light, cleaning, repairs, and the interest on the
large sum spent in providing and maintaining
the courtroom, the total is far greater. There
were seven such sessions in the Superior Court of
Boston alone, in the year 1909, and more than
three quarters of their time was spent in trying
615 tort cases, of which 210 resulted in verdicts
for the plaintiff and 58 were settled during the
trial. There were 30 disagreements, and in the
other 317 cases the verdicts were for the defend-
ant, so that judged by results more than half
the claims which were brought to trial were
unfounded. The recoveries in the other cases
were generally small, and although the figures
were not tabulated, I think it safe to say that
the total amount recovered by the successful
plaintiffs was less than the sum paid by the
56

REDUCTION OF LITIGATION

taxpayers of Boston for trying their cases. Add
to this the amount paid lawyers, witnesses,
experts, stenographers, and for various inci-
dentals by the parties on both sides, and the
amount spent to accompUsh this result is enor-
mously increased.

Nor does the account end here. The danger
of loss from accident claims has led almost all
large employers of labor and most prudent
citizens to insure themselves against liabiUty
for such claims, and the total amount paid in
premiums is very large. Some idea of its amount
may be derived from the report made last March
to the Legislature of New York, by a special
Commission. This shows that nine companies
in three years received in premiums more than
twenty-three and a half million dollars, of which
they paid for claims covered by the insurance
only about eight and a half millions, or 36.34 per
cent, of what they received. The rest went to
men employed as counsel or otherwise to defeat
the claims or solicit new business, to the cost of
57

REFORM OF LEGAL TROCEDURE

administration and to profit. The community
therefore contributes every year an enormous
fund, partly in taxes and partly in premiums to
insurance companies, and of this only a very
small percentage goes to the parties injured.

These expenses when paid out of the taxes are
a direct burden on the community. When paid
by the employer they are an expense of his
business, and a goodly portion of them certainly
finds its way into the price charged for his goods.
In this way the community again pays. The
disabled workman who has recovered no com-
pensation, and the disabled workman who has
spent his money recklessly, with his family,
often become charges upon public or private
benevolence, and thus again the loss falls upon
the public, so that a considerable fraction of
what we call "the high cost of Hving" can
certainly be traced to the waste and expense
caused by accidents to workmen.

On the other hand, it is right — nay, more, it
is necessary that men who are injured, certainly
58

REDUCTION OF LITIGATION

those who are permanently disabled by accidents,
should be supported. We cannot leave them
to perish. The line between the accidents for
which the employer is liable, and those of which
the employee must bear the consequences, is not
easy to draw. The questions of fact are close,
the evidence is conflicting. The plaintiff's path
is beset "with pitfall and with gin." The trial
judge and the appellate court often differ as to the
law, the jury often differs, and while disagree-
ments are comparatively rare^ the difference
finds expression in reduced damages. When the
courts first held that a judge might direct a
verdict for the defendant, if there was no evi-
dence of neglect by the defendant, or was clear
evidence of contributory neglect by the plaintiff,
but in doubtful cases must submit the case to
the jury, counsel in arguing asked the Court:
"Do your Honors mean to hold that the easy
cases are for the Court and the hard cases for
the jury?" This in a nutshell states the rule.
In many cases there is no negUgence on either
59

REFORM OF LEGAL PROCEDURE

side, but a pure accident which no one could
reasonably anticipate, as when a workman going
to a pile of scrap iron, which he was expected
to use as needed, in pulling out a piece released a
steel spring, which, striking him in the eye, put it
out and so disabled a fine young man for life.
Some fellow-workman had thrown the spring on
the pile.

In the great iron mills, in the mines, in great
manufacturing establishments of every kind, a
more or less steady percentage of the workmen
are killed or disabled, and to put the matter on
the lowest plane, this loss should be treated as
an expense of the business, to be paid and
reckoned in the price of goods as much as the
destruction of machinery, the wearing out of
tools, the spoiling of materials, or any other
thing which may be covered by the wear and
tear of plant.

When to the mere material considerations we
add the moral obligation to help our fellow men
in distress, the argument is overwhelming.
60

REDUCTION OF LITIGATION

The question is, how to save the present
enormous waste, and how to secure the injured
employee proper compensation without injustice
to his employer. If we can de\dse a scheme by
which the money which the employer now pays
for insurance or for expenses and losses, the
money which the injured man pays for counsel
and the other costs of litigation, and the money
which the community pays for the judges,
jurors, and others whose time is spent in deahng
with these questions, or for supporting helpless
workmen and their families, can be used directly
to provide for the victims of accident, the gain
to the general body of citizens in every way will
be enormous, and the saving in money alone may
well be large. To this problem the people of every
country where industrial development is con-
siderable are devoting much time and thought,
and this country among others is studying it.
The solution is not yet found, and you, gentle-
men, will be confronted with it when you begin
practice. In your time it will be settled, prob-
6i

REFORM OF LEGAL PROCEDURE

ably, and some of you may win fame by con-
tributing to this settlement. Upon you all will
rest the duty of trying.

With us the problem is comphcated by two
considerations.

First, the power of our legislatures is fettered
by constitutional restrictions, and

Second, no state can afford to lay upon its
citizens who employ labor a greater burden than
is imposed by other states upon their citizens,
lest capital seek the state where the burden is
lightest.

To a certain extent, the last consideration
applies between the competing nations of Europe.
They seek the same markets, and Germany can-
not afford to make the manufacturing cost of
goods greater than it is in England or France.
But it is not so easy to move a manufacturing
plant and its operatives from Germany to
France, as it is to move it from Massachusetts
to Maine or New Hampshire.

On the other hand, a good law adopted in
62

REDUCTION OF LITIGATION

one state spreads rapidly over the country; the
demand of the laborer for the best law is a
force which influences every legislature, and
while the necessity of uniform legislation may
delay, it cannot prevent a proper solution of the
problem. It is so obviously demanded by every
consideration, moral and economic, that the
strong common sense of the American people
will find it.

Within the hmits of these lectures it is impos-
sible to discuss the various systems adopted or
proposed in different countries or states, but some
general suggestions may be made. No constitu-
tion prevents men from contracting freely with
each other, and we may first consider what may
be done by contracts of workmen with each
other, of employers with each other, and of
workmen with employers.

We find, in the first place, a large body of

insurers who stand ready for a certain premium

to insure any man against accident whether

caused by his carelessness or not. Could an

63

REFORM OF LEGAL PROCEDURE

adequate fund be raised to pay the premiums
necessary to insure every workman against
accident, so that he would be sure to receive a
fixed sum in case of injury, the same provision
would be made for him and his family that the
ordinarily prudent man makes when he insures
his life or takes out a poKcy against accidents,
and the workman might well agree to accept
this certainty in place of the uncertainty,
anxiety, expense, and other evils which attend
his present right to sue his employer. Where
is this premium fund to be found?

In the first place, a certain contribution
might be made out of his wages by the work-
man himself. It is not too much to ask that
every man make some provision against the
chances of life, or in the common phrase, "lay
up something for a rainy day." To do this is
to encourage habits of thrift which are in
themselves desirable, to say nothing of other
advantages. There are now mutual benefit
associations, burial societies, and like organiza-
64

REDUCTION OF LITIGATION

tions, to which workmen contribute, the general
plan being that each member pays a small
more or less regular assessment thus creating
a fund out of which salaries and expenses are
provided, and when members die or are dis-
abled, certain sums are paid to themselves or
their famihes. As a rule, the assessment which
is sufficient when members are numerous and
young, is likely to be too small as the original
members grow old and deaths are more fre-
quent, and these associations perish because
their mathematical calculations are wrong, in
which event the surviving members lose. This
method of insurance is unwise and uneconomi-
cal, and the money spent in it can be spent
more wisely. Under a proper system such con-
tributions as these might be made the nucleus
of the premium fund.

Among enlightened employers, the system of

profit-sharing as a means of giving the workman

adequate wages is becoming more common, and

from the money which the workmen would

65

REFORM OF LEGAL PROCEDURE

receive under this system, something might well
be taken to increase it. The money which the
employer now pays for liability insurance and
for the expenses connected with claims by
workmen might be added to the fund without
in the least enhancing his present expense.

Moreover, by association between employers
in different lines of business, mutual insurance
companies could be formed which would lessen
the individual risk and the total expense. For
insurance against fire, such mutual insurance
companies have existed for years, and have
accomplished the most excellent results. They
have compelled parties who sought insurance to
take proper precautions against fire, and having
studied the causes of fire and the methods of
prevention, they have been able to point out in
each case what must be done. This system has
naturally reduced the loss by fire, and as a result
the cost of insurance has become almost nominal
to the parties insured in these companies. As
no manufacturer can afford to pay more for
66

REDUCTION OF LITIGATION
insurance or any other expense of his business
than his competitors, all desire to become mem-
bers of the mutual companies, and to do this all
must comply with the requirements of these
companies.

Were the same system adopted for insurance
against accident, there would be a thorough
inspection of the premises occupied by an appli-
cant for insurance, and he would be required
by protecting his machines and in other ways
to take proper precautions. The causes of
accident would be studied carefully, and, as
in the case of fire, new precautions would be
devised from time to time. Regular inspec-
tion by the agents of the insurance companies
would insure the observance of proper rules, and
as a result the number of accidents would be
reduced and consequently the cost of insurance.
The employer would find it wise to do what the
insurance company required in order to reduce
the cost of insurance, and the standard of care
which such an insurance company should fix,
67

REFORM OF LEGAL PROCEDURE

would become the standard by which in case of
accident every employer would be judged.

Not only would the necessary contribution to
the premium fund be reduced by diminishing the
chances of accident, but in other ways. The
insurer against liabiUty for accident now includes
in his premium not only what is needed to pay
losses, but also what is needed to pay the expenses
of resisting claims, and his own profit. These
two items with the expenses of management
take some 65 per cent, of the premium. If,
however, the insurer agreed to pay a definite
sum in case of accident whether caused by
negligence or not, the expense of resisting
claims would be largely eliminated, and as the
profit of the mutual company is used to reduce
premiums, this also would disappear. Hence the
premium required would on these accounts be
reduced, while the absolute hability might make
the losses greater and so increase the premium,
unless, as has happened with fires, the precau-
tions against accident which the mutual com-
68

REDUCTION OF LITIGATION

pany required should reduce the number of
accidents enough or more than enough to offset
the loss from greater habiUty. It should be
borne in mind that the employer's premium is
now fixed by considerations drawn from experi-
ence with many unconnected employers, and
that having paid it he is somewhat indifferent
to accidents. If every accident increased the
expense of insurance, all employers would be
more careful. It is probable that the em-
ployer's contribution to our premium fund
might be less than he now pays for insurance
against liability.

We have, so far, as contributors to the fund,
the employee and the employer. Might not the
State also contribute? If the argument is sound,
the State will save much in the expense of courts
and much in the support of the poor. It will
gain also something through the removal of one
cause which produces friction and bad relations
between employer and employed. Can it pro-
perly be asked out of these savings to pay any-
69

REFORM OF LEGAL PROCEDURE

thing towards the premium fund? Suppose the
general scheme of mutual insurance is extended
so as to cover disability caused by age as well as
by accident, so that in a way it provides an old
age pension. This is delicate ground, but it must
be remembered that every poorhouse contains
its old age pensioners. Out-door reUef is often
only an old age pension. The helpless are sup-
ported, if by no one else, by the public. Could
not this relief be given through pubUc contri-
bution to a system which would provide for such
pensioners? The State now takes money from
the taxpayer, and gives it to persons who from
age, disease, accident, and often from their own
vice or improvidence, are unable to support
themselves. It supports those who, disabled by
accident, have failed to get damages from their
employers, and perhaps some of those who
having succeeded have spent their damages. It
is in the last resort an insurer against want,
and its losses are paid from pubHc funds
through one set of agents, — the pubUc officers,
70

REDUCTION OF LITIGATION

whether of state, city or town, who administer
poor relief. Can it not make its present con-
tribution through other agents, and perhaps
insure against its Uability by becoming a party
to such a scheme of mutual insurance as I have
outlined, with proper safeguards? There would
seem to be no constitutional objection to a
measure carefully drawn to accomplish this,
but if there is, the Constitution may be
amended.

Might the State not also require of employers
a certain standard of care, and impose penalties
for any failure to comply with such require-
ment, and might not such penalties be used to
increase the fund of which I am speaking?
The careless employer costs the State in many
ways, especially in the cost of courts and poor
reUef. Can he not be compelled to reimburse
the State for this expense, and cannot this
reimbursement be used so as to reUeve the
State from the burden of supporting the victims
of his carelessness? To put it in another way,
71

REFORM OF LEGAL PROCEDURE

an employer of labor proposes to engage in a
business which is Hkely to entail expense on the
State through accident to his employees, which
will cause either the expense of lawsuits or
the cost of supporting disabled men and their
families, and often both. The State can offer
the employer the alternative of protecting it
against these expenses, either by joining in
some scheme of insurance or by paying a heavy
tax which could be imposed on all employers as
a class who did not insure. Such a law as this
must be constitutional.

Much of what has been suggested can be done
by contracts between employer and employee
and a mutual insurance company of employers,
classifying injuries and fixing the sum which the
employee shall recover according as his injury
belongs to one class or another. The contract
may provide, as the Mexican law does, for a regu-
lar periodical payment, either for a definite time
or pending disability, instead of a single payment.
The funds of the organization may be placed
72

REDUCTION OF LITIGATION

under State control, its investments may be
regulated so as to insure safety, and the State
may perhaps agree to contribute. The whole
commimity is of necessity a mutual insurance
company, and the burdens which this relation
creates may well be adjusted by proper legisla-
tion. The tendency everywhere is to make
proper provision for age and disabiUty in part
at the State's expense.

But employers may refuse to enter such
organizations. The remedy is simple. The
State, in the exercise of the police power, now
regulates factories, bakeries, the hours of labor,
prescribes safety appliances, insists that all drugs
sold shall conform to certain standards winch
are subject to more or less frequent change,
fixes the quahty of milk and food, and legislates
in various ways to promote the health and safety
of its citizens. It is easy to provide that every
employer must take the precautions required
by the mutual insurance company under heavy
penalties. It may direct that his business may
73

REFORM OF LEGAL PROCEDURE

be stopped until he does so, as the State now
forces the owners of buildings to make proper
provision against fire. It may make it in this
way so much for his advantage to join the
organization of employers that he cannot afiford
not to do so.

To recapitulate briefly, there is money enough
spent and wasted by our present system, and
directly or indirectly paid by the community,
to create a fund adequate under a proper system
to give proper compensation to every workman
injured in the course of his employment. The
more carefully this problem is studied, the more
certainly will this appear. What is needed is a
plan which will at once reduce the danger of
accident, and insure the direct application of
what the community pays to the reUef of the
injured person. Whatever is paid on this
account should be distributed as an expense, not
of one employer, but at least of all engaged in
like business through a system of mutual insur-
ance, and should be regarded as an expense of
74

REDUCTION OF LITIGATION

the business which enters into the cost of the
goods made or work done by the employer, and
so is assessed upon the community. If necessary,
the State can well afford to contribute, and the
question is how to frame a law which will accom-
pUsh our result. It has been done in Germany,
to the great reUef of the courts, and it should be
done here. Let me give you a few facts as to
the German system, to be found in the last annual
report issued by the United States Bureau of
Labor, as condensed by a correspondent of the
Boston Transcript :

"The employers defray the entire cost of the
accident insurance, and it includes practically
all the industrial workers in the country. The
most striking evidence of the wide scope of this
system is contained in the figures for the opera-
tions of the year 1908. In this year, the number
of persons insured against accident was about
27,000,000, the total receipts were about $57,000,-
000, the total expenditures were about $48,000,-
000, and the amount of the reserve was
75

REFORM OF LEGAL PROCEDURE

$65,000,000. The number of workmen compen-
sated for the first time in the year 1908 was
143,000. Separate laws provide a system of
compulsory sickness insurance for wage-earners
in which the employers pay one-third and the
workmen two-thirds of the expense. In 1908
the number of persons (not including agricul-
tural laborers) insured against sickness was
about 13,000,000, the receipts were $95,000,000,
and the expenditures were $91,000,000. Besides
these two branches, there is a third national
compulsory system relating to insurance for old
age and invalidity, in which the employers and
the workmen each pay equal amounts while the
Imperial Government provides a liberal subsidy.
In 1 90S the number of persons insured under
this branch was 15,000,000, the receipts were
$68,000,000, the expenditures were $48,000,000,
while the reserve amounted to $355,000,000.
The three systems of insurance have been in
operation for nearly twenty-five years, and the
experience under them has been so favorable
76

REDUCTION OF LITIGATION

that, in response to a widespread demand, the
German Government is now preparing to revise
and extend the system, and it is expected that in
a few years even greater results will be shown than
those now obtained. A number of cities in
Germany are now providing subsidies for organi-
zations providing benefits in cases of unemploy-
ment; this is usually done by repaying the trade
imions and similar organizations a percentage
of the expenditures they make for out-of-work,
travel, etc., benefits."

We cannot afford to treat our workmen worse
than Germany treats hers, and some system
like hers should be estabhshed, and will be estab-
lished in this country. If any provisions of
our constitutions prevent, the difficulty must be
removed by amendment. It is largely a ques-
tion of mathematics, and whenever the facts
and figures are laid before the business com-
munity, its sound sense will repudiate our
present absurdly expensive and ineffectual
methods.

77

REFORM OF LEGAL PROCEDURE

As the Committee on the Judiciary of the
National House of Representatives said in a
report last year:

"Practically every civilized industrial nation
in the world has since discarded the old system
based on fault, and submitted a system under
which the industry bears the burden of relieving
the distress of its injured workers practically
without litigation.

" That this question is of transcendent im-
portance and one wholly connected with the
advanced policies of the Government respecting
the rights of labor and the proper equitable
relations between the employer and the work-
man, is evidenced by the utterance of President
Taft, in a recent address at Worcester, Mass.,
speaking before the joint committee of brother-
hood in train service:

"I am hopeful, indeed, that before many years

have passed we shall be able to adopt a system

... by which there shall be settled promptly,

on rules specified with the same degree of certainty

78

REDUCTION OF LITIGATION

that they are specified in an insurance policy,
how much a man shall receive for an injury,
proportionate to the wages that he gets and
proportionate to the disabling character of the
injury. ... In other words, I think we ought
to have a uniformity of award, a dispatch and
quickness in award, so that the lawyers may be
eliminated, and that the money may go directly
to the object to which it ought to be devoted.
It will rid the courts of litigation with which
they are now loaded down. It will make the
awards reasonable but quick, and there will be
no division in the money paid to the widow and
the orphans or to the helpless cripple. That
system is forcing its way in Europe, and I hope
we may have it here. In that way the good
feeling between the company and the employee
will be facilitated and justice will be done.
The railroads can calculate with the utmost
accuracy, by statistical reference, how much
money they will have to devote to that sort of
liability, and I think everybody will be in better
79

REFORM OF LEGAL PROCEDURE

condition. The middleman will be eliminated,
and only the employee, on the one hand, and
the treasury of the railroad, on the other, will
be affected.'

''And by President Roosevelt's address at
Jamestown :

"As a matter of fact there is no sound economic
reason for distinction between accidents caused
by negligence and those which are unavoidable,
and the law should be such that the payment of
those accidents will become automatic instead
of being a matter for a lawsuit. Workmen
should receive a certain definite and limited
compensation for all accidents in industry, ir-
respectiv^e of negligence. It is neither just,
expedient, nor humane; it is revolting to judgment
and sentiment alike, that the financial burden of
accidents occurring because of the necessary
exigencies of their daily occupation should be
thrust upon the sufferers who are least able to
bear it.'"

No man can work out a perfect system, but
80

REDUCTION OF LITIGATION

on the general lines which have been suggested,
the problem of dealing with the protection of
employers from accidents and their consequences
can and will be settled, and among other results
the courts will be relieved from a certain class
of cases. Gentlemen, there is here an oppor-
timity for you all.

But there remain much larger classes wliich
this scheme would not touch. Such are the
claims of passengers and others not employees
against transportation companies. The first are
most easily dealt with in the case of railroads or
steamship companies which carry passengers for
considerable distances. In their stations the
passenger goes to one window and gets the ticket
which entitles him to transportation, and at
an adjoining window may get another ticket
wliich entitles him to a certain sum in case he is
injured by an accident during his journey. For
the latter he pays a trifling sum, which includes
besides what is needed to cover the risk of loss,
something for the expenses and profit of the

REFORM OF LEGAL PROCEDURE

insurance company. Why should not these be
combined, and the railroad company insure its
passengers? It does in efiect insure them now,
and it maintains an expensive legal department
to liquidate by costly trials the claims against
it as such, to protect itself against fraudulent
claims, and perhaps to make men whose claims
are just take less than their due rather than
incur the risk and expense of litigating with a
rich corporation. The Courts have laid down
the rule, that a carrier cannot by contract exempt
himself from the consequences of his own negU-
gence, but he can Umit his liability and give the
passenger one hability for one price and less for
a less price, or nothing for nothing, as in the case
of one who travels on a free pass. Why should
not the railroad company add a small svma to the
price of its ticket, and for that assume the lia-
bility of an insurer, and why should not the pas-
senger who is willing to take the very trifling
risk of accident be allowed to do so? A very
small sum added to the price of a ticket would
82

REDUCTION OF LITIGATION

cover all losses and be for the company's ad-
vantage, and this sum could be fixed by a
Board of Railroad Commissioners or other rep-
resentative of the State so as to prevent
extortion.

It must be possible to regulate by some rea-
sonable contract the relations between passenger
and carrier, so that the passenger may get a
greater or less degree of insurance according to
the price which he pays without imposing on the
railroad a greater burden than it now carries.
At present the carrier agrees for a certain price
to carry the passenger safely, and in case it
fails to do so to pay a sum to be fixed by the
Court according to circumstances. Why should
not the parties agree upon the sum to be paid
and the price be adjusted according to the service
performed and the risk assumed by the carrier,
as the carrier now varies his price for baggage
according to its weight and its character? It
would seem to be a problem which is not
insoluble, and there is no sound legal reason
83

REFORM OF LEGAL PROCEDURE

for refusing parties the right to make such
contracts.

When we come to the case of street railways,
the difficulty increases. There the journeys are
short, the passengers constantly changing, and
more careless in getting on and off than on
steam cars, and moreover the fare is a fixed
sum represented by a single coin or multiples
of that coin, and any change in this fare is
difficult to arrange. On the other hand the
percentage of passengers who are not carried
safely is almost infinitesimal. Still the total
number of persons carried is so large that an
insignificant percentage makes a formidable
total of cases from the Court's point of view, and
the number of fraudulent claims is larger than
with other carriers because the identity of
passengers is not easily estabUshed, and it may be
very difficult to disprove a false story. It
might be possible to reduce litigation by a slight
extension of the principle which I have suggested
in the case of steam railways. The legislature
84

REDUCTION OF LITIGATION

might limit to a small sum the liability which
the company shall insure by the receipt of a
five-cent fare, providing at the same time that
if passengers are not wilUng to take so much
risk the Company might issue more expensive
tickets, or meet the wants of regular passengers
by issuing tickets of insurance covering longer
or shorter periods charging for such insurance
a reasonable rate. In brief, the Legislature might
provide that by the acceptance of a certain fare
the company should be held to have assumed a
Umited UabiHty, and that for any greater Ha-
biUty the passenger must pay. This is perhaps
a crude suggestion, but it may lead some one of
you to work out a better plan.

The claims of injured persons, who are not
passengers and with whom no contract can be
made, still remain, but they are comparatively
few, and for the present may be left to the Courts,
for I would not take all the bread out of your
expectant mouths.

All these suggestions, however, are made in
85

REFORM OF LEGAL PROCEDURE

support of my main proposition, that the con-
gestion of the dockets and the consequent delay
of suitors may be dealt with by legislation, so
regulating the subject out of which the disputes
grow as to make litigation unnecessary or un-
profitable.

But there is left the large class of fraudulent
claims brought on speculation, and supported by
manufactured, exaggerated or perverted testi-
mony and by professional experts. These cannot
always be detected. If they could they would
never be brought, but when they are exposed,
the punishment should be severe and certain.
In dealing with them, the Court and the Bar
should act together. The Bar has the right to
ask the Court for information, and the Court has
the right to ask the Bar for investigation and
report. In every considerable section there is,
or should be, an association of lawyers to hold
up the standard of legal practice, and to purify
the Bar. If the Court is satisfied, or has strong
reason to suspect, that a case is fraudulent, it
86

REDUCTION OF LITIGATION

should notify the representatives of this asso-
ciation and ask them to investigate. There
is no tribunal that a tricky attorney dreads more
than one composed of his honest associates,
and there is no penalty that he fears more than
their condemnation. The mere danger, that if
his fraud is detected his case will be sent to the
Bar Association for investigation, would be a
powerful deterrent. Unless a fraud is very
glaring, he has now nothing to fear from the loss
of a suit except the loss of his time, and some
small expenses perhaps. If he knew that the
judge stood ready to inform the Bar and the
Bar stood ready to investigate, and if he knew
further that detection would be followed by
swift and inexorable punishment like suspension
or disbarment, the amount of improper Utigation
would be enormously reduced. This is a step
to which the profession must come if it would
purify the courts and recover its proper standing.
It would involve time and trouble to apply this
remedy at first, but after two or three examples
87

REFORM OF LEGAL PROCEDURE

had been made and the proper standard estab-
lished, it would not often be necessary to take
actual proceedings.

Another step towards discouraging fraudulent
suits by striking at the means employed in
prosecuting them has been suggested by Samuel
Untermyer, the well-known lawyer of New
York, who in an address delivered a year ago
made this statement:

"It has been said, and I think rightly, that the
crime of perjury is committed in at least three out
of every five cases tried in the courts in which
an issue of fact is involved. It has become so
general that the Courts regard it as almost a
part of the inevitable accompaniment of a trial."

He suggests that the Court should be obliged,
at every trial before a jury, to require the jury
to find whether any witness before it has been
guilty of wilful false swearing, and if so to name
the witness or witnesses. At trials before the
Court without a jury, the judge would be required
to make this finding. There are many objections

REDUCTION OF LITIGATION

to this remedy, but if the judge were to watch
trials carefully, and wherever perjury was clearly
committed to report the case to the prosecuting
officer, or even commit the witness to await
the action of the Grand Jury, it would have
a strong deterrent effect. I have known this
done without especial statutory authority,
and it is certain that some steps should be
taken to purify trials in this matter. A few
conspicuous cases would have a very wholesome
influence, and all honorable members of the Bar
should exert themselves to root out this evil.

Disputed wills are a proHfic source of litiga-
tion, and in passing I may call your attention
to a suggested method of preventing these
contests. It is proposed that a statute be
passed providing that the testator may, if he
pleases, file his will in court during his life and
give due notice to all the world, and that if anyone
questions its validity on any ground he must
appear within a certain time and contest it
or be forever barred. If a contestant appears,
89

REFORM OF LEGAL PROCEDURE

let him be required to prove his interest, and
then under proper restrictions be allowed to
see the will. If he still desires to contest it, let
the questions which he raises be tried while
the testator himself can testify and demonstrate
his capacity or explain his reasons. Under such
a law, contested will cases would be rare, and yet
abundant protection would be afforded against
incapacity, fraud, and undue influence. Doubt-
less many other laws might be suggested which
would reduce the volume of litigation, but I wish
to leave a large field open for your ingenuity, and
will end this branch of my subject here.

90

Ill

DELAYS DURING TRIAL

THUS far I have dealt with the causes of
delay before trial, and have suggested as
remedies a higher standard of professional
fidelity which shall eliminate groundless suits
and improper defences, the imposition of sub-
stantial costs on client or counsel in proper
cases, a keener professional conscience which
shall overcome the temptation to procrastinate,
and the removal of certain classes of litigation
from the courts by legislation.

Let us now proceed to consider those things
which prolong the trial itself, or prevent a
prompt and just judgment. These can be dealt
with more briefly, and we will begin by assum-
ing that the case is tried by jury or Court
without first sending it to a master or auditor.
Delay can be caused in such a trial only by
91

REFORM OF LEGAL PROCEDURE

needlessly prolix examination or cross-examina-
tion of witnesses, by sparring between counsel,
or, where the hearing is before a judge or judges,
by delay in the decision. Where a jury tries
the issue there may also be delay in selecting
the jurors, but this will be dealt with when we
come to consider the administration of criminal
law, for in civil cases delay on this account is
not common.

The length to which the examination and cross-
examination of witnesses shall be pressed, and
the extent to which cumulative evidence shall be
allowed, must be left to the determination of
the presiding judge, who must also control the
conduct of counsel during the trial. The first
is a matter of discretion, the second, in at least
one important respect, should be governed by
strict rules. In many trials much time is wasted
in altercations between coimsel. One lawyer will
make a statement of fact or a personal charge
against his opponent or some joke at his expense.
The other dares not remain silent lest he be
92

DELAYS DURING TRIAL

thought to admit the fact or the charge, or lose
by not answering a joke in kind. When the
laugh is against a man, he and his case may
suffer with the jury. Hence the lawyer who is
attacked replies, and an unseemly dispute en-
sues, which delays the trial, confuses the jury,
and exasperates the combatants, neither of
which consequences helps in the ascertainment
of justice. The judge can and should stop all
such interruptions of orderly proceedings at
once, by inexorably requiring counsel to address
the Court and not each other. A judge who
enforces this rule confers an obhgation on every
one concerned — on the pubHc, by preventing
a waste of public time, on the jury, who are
often disgusted and wearied by constant squabbles
between counsel, and on the counsel themselves,
who are often dragged into such disputes reluc-
tantly lest silence be misinterpreted, and who
say things in heat of which in their cooler moments
they are thoroughly ashamed. A judge in this
matter should be prompt and firm.
93

REFORM OF LEGAL PROCEDURE

The Court may well interfere also to prevent
a waste of time in examining witnesses. It is
true that a cross-examiner should not be com-
pelled to disclose his object, since to do so is often
to put a false witness on his guard and so defeat
the whole purpose of cross-examination, but a
strong and experienced judge can generally tell
whether counsel is wasting or merely using time.
Even the ablest lawyer, in dealing with a witness,
is sometimes carried along by the deUght of the
contest, and in the attempt to score a personal
triumph over the witness loses sight of his case.
A little interruption or expression of weariness
will bring him to his senses, and an inept coimsel
can by a hint be persuaded to abandon an unprof-
itable lead.

Some years ago, a friend of mine in England
was watching the trial of a case when one of
the counsel called a witness. "Why do you
call this witness?" said the judge. "I want to
make the jury understand the working of a
winch" was the reply. "Oh," said the judge,
94

DELAYS DURING TRIAL

"the jury understands that," and turning to the
jury, he said: "Gentlemen, don't you all know
what a winch is and how it works?" They all
nodded assent. "You see," continued the
judge, " you don't need this witness. Call your
next." A Httle while later the case was given
to the jury, who, as is very often the case in
England consulted without leaving the box.
After a few minutes the judge turned to them,
and said: "Well, gentlemen, have you agreed ?"
"We stand eleven to one," answered the fore-
man." Addressing the counsel the judge said:
"Gentlemen, will you take the verdict of the
eleven?" They assented, and the case was
ended. This was practical sense, and it may be
added that consultation by the jurymen under
the eye of the judge and counsel should be en-
couraged. It insures attention to business, and
avoids much waste of men in the jury-room.

There is another saving of time which is
within the control of counsel, who can always
avoid prolix and useless examination and cross-
95

REFORM OF LEGAL PROCEDURE

examination. Direct examination is really more
difficult than cross-examination, and should
be prepared carefully. The counsel must learn
what the witness knows, and then make him
tell his story connectedly and simply, — as far
as possible chronologically, avoiding digres-
sions and interruptions of the narrative. Tes-
timony that is not extracted by leading questions
is more effective than the responses of a wit-
ness who is led, but there are worse faults
than leading, which is often necessary with
certain witnesses in the interest of reasonable
expedition.

Cross-examination is a very dangerous amuse-
ment where an honest witness has told the
truth and there is no fact within his knowl-
edge which cross-examining counsel needs — a
cross-examination only doubles the effect of his
testimony, irritates him, and perhaps stimulates
his memory to the injury of the cross-examiner.
With such a witness, the most effective course
is to say: "That is all" or "No questions."
96

DELAYS DURING TRIAL

This often disappoints the opponent who has
extracted the bare facts and rehed on cross-
examination to fill in the details. It indicates
to the jury that the cross-examiner's case is
not injured by the witness, and if a case is well
prepared this must be so, since you must have
known what the witness would say and have
some way of meeting his testimony, else you
have no case. Cross-examination is useful in
bringing out helpful facts from an honest wit-
ness, in making a false witness testify positively
to statements which the cross-examiner can con-
tradict, and in breaking a lying witness down
by exposing his falsehood, but cross-examination
for general results without a definite plan — the
Micawber-Uke process of asking questions in
the hope that "something wdll turn up" — is
generally fatal. When a witness has done your
case all the harm possible and he must be
broken, then, and then only, is such a process
to be justified. If counsel would bear these
simple rules in mind, much aimless and useless
97

REFORM OF LEGAL PROCEDURE

cross-examination would be avoided to the
advantage of all concerned.

In this country we are too apt to regard a
trial, not as a business-like attempt to settle a
question between two parties with the help of
court and counsel, but as a battle in the nature
of a prize-fight between counsel. Each side is
provided with a table, and sits down for a long
siege, while every word, however used, is care-
fully recorded by the stenographers, and the
judge sits as an interested spectator with the
power of a time-keeper. In England the counsel
sit in semi-circular pews, with scant accommoda-
tion, and each rises where he sits to examine
witnesses or address the jury. This very differ-
ence in the seating of counsel typifies the
difference in the procedure. The English judge
controls the trial from beginning to end and
interposes to shorten the proceedings with great
freedom, while in America such intervention
would be resented. Yet no one complains
that the English Courts do not do justice.
98

DELAYS DURING TRIAL

It is important, also, that the trial should be
so conducted that there will be no second trial
of the same facts. This can in many cases be
done by submitting to the jury distinct issues of
fact or requiring them to answer specific ques-
tions, a practice which has been repeatedly
recommended by the American Bar Association
and other organizations of high standing. As
cases are generally submitted to a jury, the
jurymen are required, after a long trial and
moving appeals to their passions and preju-
dices, upon evidence which must be remem-
bered imperfectly, and under instructions on
complicated questions of law at best imper-
fectly understood, to decide whether on the
whole the plaintiff or the defendant should
prevail. The real issues are obscured or for-
gotten, and a jury must often agree upon a
verdict without really considering the vital
questions upon which the rights of the parties
depend.
For example, some years ago a lawyer arguing
99

REFORM OF LEGAL PROCEDURE

for the plaintiff in an accident suit against a
railway company, said to the jury: "Gentlemen,
my client needs the paltry sum which she seeks
to recover at your hands. Oh, how she needs
it ! You have seen her. You have seen her age,
her weakness, her inability to struggle with the
world. You can judge how this accident has
affected her, and how much good this money
will do her. And, gentlemen, while I speak to
you, — in these few minutes, this great corpora-
tion is taking in, at a few of its ticket offices,
more money than enough to make her comfort-
able for life. She needs it, and the defendant
does not, — will never miss it. Can you hesi-
tate, gentlemen, between the two?" The judge
sat by and heard in silence this appeal. How
much attention, do you think, the jury gave to
the question of the defendant's negligence or
the plaintiff's want of due care? The facts, that
one party is a corporation and the other an
individual, that one is rich and the other poor,
that one is native and the other foreign, that

lOO

DELAYS DURING TRIAL

one is white and the other colored, often out-
weigh evidence and law.

I remember once defending a corporation
against an absurd claim, and the judge began his
charge by saying: "Gentlemen of the Jury: —
In my years of service on the bench I have seen
more injustice done because juries have allowed
their minds to be influenced by the fact that
one of the parties was a corporation than from
any other single cause. Now I want you in
this case to ignore this fact, and to decide it as
if both plaintiff and defendant were individuals."
The jury were out nineteen hours, and then gave
me a verdict. An old juryman afterwards came to
my office, and said, "You know the judge told us
that we mustn't allow the fact that the defendant
was a corporation to influence our minds. Well,
finally, I didn't allow it to influence my mind."
This confession shows what goes on in the jury-
room.

The way to avoid the influence of these pre-
judices is to make the jury decide the real issues

lOI

REFORM OF LEGAL PROCEDURE

involved. When the jury is required to answer
direct questions, they are forced to consider the
real issues of facts, and the verdict settles the
facts once for all. The Court can then order a
verdict one way or the other, and let the appellate
Court, if it does not affirm the ruling, order such
a judgment upon the findings as the law requires.
The province of the jury is to find facts and assess
damages, and to this province they should be
Hmited. If the jury were regularly asked in
accident cases such questions as: "Was the
defendant neghgent?" "If so, in what did
the negligence consist": or if the claim is that
the plaintiff did not exercise due care by omitting
some precaution or doing some careless thing,
the judge were to submit the question whether he
did do the thing or omit the precaution suggested,
the jury would in fact deal with the questions
which, in theory, they must decide in order to
reach a verdict, but which, in practice, may or
may not receive their attention. Were this
system adopted, the parties would not be com-

I02

DELAYS DURING TRIAL

pelled to try the questions of fact again, be-
cause the judge at the trial erred in his views
of liability upon these facts. One trial would
suffice to estabUsh the facts, and a verdict upon
them could only be set aside for flagrant errors
in omitting or excluding evidence which bore
upon these issues.

In dealing with questions of evidence, the
Appellate Court should be given liberal dis-
cretion to sustain the verdict where it is
reasonably apparent that the admitted or ex-
cluded evidence ought not to have changed
the jury's conclusion, or that the judgment of
the Court below was in itself just. Remembering
that the trial judge may always set aside an
improper verdict, and that the case rarely
reaches the Appellate Court imtil the power has
been invoked, the slight chance of injustice
arising from an error in dealing with evidence
committed both by the trial judge and the
Appellate Court is infinitesimal as compared
with the injustice done by the present practice,
103

REFORM OF LEGAL PROCEDURE

and the delay and expense to which not only the
parties but all litigants in the same court are
put by repeated new trials.

Let me give two illustrations of existing
difl&culties taken from a recent article by Mr.
George W. Alger. He quotes from the argument
of counsel, addressing the New York Court of
Appeals in a very iminteresting case about a
small plot of land:

(This case has been tried three times in
the lower court by juries, has been heard on
appeal in this court twice, and once in the
Court of Appeals. The expenses of the Htiga-
tion already have absorbed the value of this
property in dispute. If there be some way which
the court can find for deciding finally this dispute
here in this court, without requiring it to be
tried over again, it will be a blessing to all con-
cerned.)

" This blessing the court found itself unable to
confer, and sLx months later the case again was
on the first round of the judicial ladder for a
Z04

DELAYS DURING TRIAL

new trial in the lower court; and recently it has
been once more decided in the Appellate Court,
and is now on its weary way to the Court of
Appeals." ^

Another case which he cites is the case of
Ellis V. The Delaware, Lackawanna and Western
R. R. Co., a suit by a brakeman to recover
damages for personal injuries. He was injured
in July, 1882, and twenty- two years later he
finally recovered judgment for $6500, under the
New York system which gives two appeals from
the trial court, one to the Appellate Division,
and one to the Court of Appeals. During this
period, the plaintiff had seven trials of the facts
before a jury, and after the first two, the Court
of Appeals holding that on his own testimony
the trial Court should have directed a verdict
for the company, he completely changed his
testimony on all points which the Court of
Appeals had relied on in reaching its judgment,

'"Treadmill Justice," Atlantic Monthly, vol. 104, No-
vember, 1909.

REFORM OF LEGAL PROCEDURE

and on this reconstructed case, after eleven
years of fresh litigation, he won his final
verdict.

This is not an unusual case, for the Court of
Appeals has itself said, that "It frequently
happens that cases appear and reappear in this
court, after three or four trials, where the plain-
tiff on every trial has changed his testimony in
order to meet the varying fortunes of the case
upon appeal." We may well say, slightly
changing a familiar quotation: "Oh, justice,
justice! what crimes are committed in thy name!"

Mr. Alger thinks that the expense of this
litigation, not including lawyers' fees, was five
thousand dollars at a conservative estimate.
What it cost either lawyers or cHents for the
time that the counsel gave is a matter of pure
conjecture, but it is safe to say that this liti-
gation profited no one and cost the community
dear.

Let me quote one more case from Mr. Alger:

"A grimly humorous illustration of one of the
io6

DELAYS DURING TRIAL

results to the litigant may be found in another
New York law-suit which reached a final chapter
recently in the Court of Appeals. It was a
complex case against an insurance company on
some poUcies of insurance, and each time it was
tried it took from a week to two weeks' attention
of Court and jury. Owing to reversals and new
trials ordered by appellate courts, it had to be
tried nine times. It was in the courts from 1882
to 1902. The plaintiff became at last so sick
and disheartened with his interminable law-suit
that he abandoned it; refused to go to his lawyers
to consult with them about it or to appear when
the case was being tried. The lawyers had
themselves spent over forty-five hundred dollars
in fighting the case, and had worked on it
for nearly twenty years. Their client having
abandoned them, they settled the case for thirty
thousand dollars, and took the money themselves
for their fees. The last chapter of the litigation
was an unsuccessful attempt by the receiver in
insolvency of the plaintiff to make the lawyers
107

REFORM OF LEGAL PROCEDURE

give up some of their fees to their dient's creditors.
How much the twenty years' delay in the law-
suit had to do with that insolvency it is impossible
to say; but such an outcome, to the lay mind,
seems hardly satisfactory as a result of twenty
years of Utigation, of nine trials, and seventy- two
days' time of over a hundred jurors."

These are fruits of the existing system in the
richest state of the Union, a great commercial
community, old and highly civilized according
to our standards. Mr. Alger does well when he
says that one great defect in our system is the
"lack of terminal facilities."

In Philadelphia, on the 4th of last June, the
statement was made by a Mr. Scoville, a member
of its Bar, that it usually took two years to reach
a jury, while in Pittsburg, in 1909, the number of
jury cases waiting trial was 7274 and its four
courts had only tried 783 in a year. He quotes
from business men such statements as these:
"Not being immortal we have decided to bring
no more suits in Philadelphia," and "I can
108

DELAYS DURING TRIAL

obtain justice in hell quicker than in Philadel-
phia," while a Russian emigrant wrote: "Such
denial of justice is misery and despotism. Court
conditions in Russia are not as bad as they are
here."

Contrast this with what I read in the
London "Times," on July 26 last, in an article
discussing a proposition to appoint two new
judges :

"They will find plenty of work to do, and no
small arrears to be cleared off, cases entered
about March last being still undisposed of."

Much of this interminable delay would be saved
if the jury answered specific questions, and the
courts merely applied the law to their findings,
entering judgment accordingly, with no new trial
of facts whenever the trial judge makes a mistake
of law.

3^6 wish to minimize the danger of error in

the trial court and to insure just findings by the

jury as well as correct ruHngs by the Court.

To this end the judge should be allowed to charge

109

REFORM OF LEGAL PROCEDURE

the jury on the facts, and not as is now the case
in many jurisdictions, forbidden to give the jury
any idea of his opiniofi.

The judge is the only person in court at
once trained to apply the law, experienced in
trials, and impartial. He is familiar with the
wiles of witnesses and coimsel, for no man can
preside in court for any length of time without
learning to detect the evidences of falsehood
and to weigh at their true value appeals to
prejudice and sympathy. The jury needs all the
advice and help that he alone can give them, for
as a rule they are entirely without experience in
the work which they are asked to do. I have
often thought when I have been engaged in
discussing ^^ith opposing counsel some case
which bristled with questions of fact and law,
and looking out of the window have seen a mis-
cellaneous crowd listening to some patent medi-
cine-vendor, or watching the moving of a safe,
how strange it would sound to a foreigner if he
heard me say to my opponent: "We with all
no

DELAYS DURING TRIAL

our knowledge and experience cannot agree upon
this case. Let us take twelve men at random
from that crowd and let them decide it." Yet
that is what we do in practice, where we let a
jury decide without the help of a judge, and the
more we Hmit the judges' power the nearer we
come to such an absurdity.

The law of England gives the judge his proper
place as the Court, and trial by jury would have
been abandoned long ago if this had not been
so. I have already alluded to the Tichborne
case, in which after the trial had lasted one
hundred and sixty-nine days, Chief Justice
Cockburn charged the jury for eighteen days,
and from his summing up I quote the following
words:

"I cannot invent facts, nor by the utmost
effort of ingenuity can I find explanations which
have no reality in point of fact. In my opinion
a judge does not discharge his duty who contents
himself with being a mere recipient of evidence,
which he is afterwards to reproduce to the
III

REFORM OF LEGAL PROCEDURE

jury without pointing out the facts, and the
inferences to which they naturally and legiti-
mately give rise. It is the business of the judge
so to adjust the scales of the balance that they
hang evenly; but it is his duty to see that the
facts, as they arise, are placed in the one scale
or the other, according as they belong in one or
the other. It is his business to take care that the
evidence which properly arises from the facts is
submitted to the consideration of the jury, with
the happy consciousness that, if he goes wrong,
there is the judgment of twelve men, experienced
in the everyday concerns of Hfe, to set right
anything in respect of which he may have erred.
If the facts make one scale kick the beam, it is
the fault of the facts, not of the judge."

In the Federal Courts this ideal is maintained.
"Trial by jury," said Mr. Justice Gray, "in the
Courts of the United States, is a trial presided
over by a judge, with authority not only to
rule upon objections to evidence and to instruct
the jury upon the law, but also, when in his

112

DELAYS DURING TRIAL

judgment the due administration of justice
requires it, to aid the jury by explaining and
commenting upon and even giving them his
opinion upon questions of fact, provided only
he submits those questions to their determina-
tion." Mr. Justice Brewer states the rule
thus: "The judge is primarily responsible for
the just outcome of the trial. He is not a mere
moderator of a town meeting, submitting ques-
tions to the jury for determination, nor simply
ruling on the admissibihty of testimony, but
one who in our jurisprudence stands charged
with full responsibility. He has the same
opportunity that jurors have for seeing the
witnesses, for noting all those matters in a trial
not capable of record, and when, in his dehberate
opinion, there is no excuse for a verdict save in
favor of one party, and he so rules by instructions
to that effect, an appellate court will pay large
respect to his judgment."^

In a word, the judge has, as he should have,

1 Palton V. Texas & Pacific Ry. Co. 179 U. S. p. 660.

REFORM OF LEGAL PROCEDURE

a powerful influence on the result. It is not
believed that suitors get less justice in the
Federal Courts on this account.

In the states, on the other hand, the whole
tendency is to reduce the judge's influence and
to increase not so much the power of the jury
as the power of the skillful advocate upon the
result of the trial. This is wholly wrong.
Counsel may make every appeal to sympathy
and prejudices, and every ingenious attempt
to mislead the jurymen, but the judge, who
has no reason to mislead them, and who must
be more impartial than either counsel, is in
many states prevented from saying anything
to counteract these improper influences. He is
given power to set aside a verdict which in his
judgment is wrong, and thus subject the parties
to the expense and delay of a second trial, but
he can do nothing to secure a true verdict, and
that influence which should be most potent in
securing a proper result is thus shorn of its
power. He may make mistakes in ruling upon
114

DELAYS DURING TRIAL

questions of evidence or in his instructions to
the jury, and the chance of his doing so lends
a permanent element of uncertainty to all trials.
From such mistakes come frequent retrials and
consequent delay and expense, but as trials are
generally conducted, his opportunities for error
are numerous, his power to secure justice is
shght. We need in our trial courts good
judges of high character and sufficient firm-
ness and we must give them more power. We
profess the greatest respect for and confi-
dence in the Bench, and express it on every
public occasion. As a rule, the Bench de-
serves this confidence, but in practice we do
not trust the men whom we thus delight to
honor.

I have said that the tendency is to limit the
power of the judge. The reason is, perhaps, that
the Bar is represented in the legislature and the
Bench is not. The lawyer who feels aggrieved
by the action of a judge in some particular case,
who has felt the halter draw around his profes-
"5

REFORM OF LEGAL PROCEDURE

sional neck with the proverbial result, induces
other lawyers to unite with him m having a law
passed to diminish the judge's power. He and
his friends represent one side, no one represents
the other, and so the law is passed. As Pro-
fessor Poimd says:

"Legislation with respect to the charge of the
Court may be shown to have originated in more
than one jurisdiction in the desire of eloquent
counsel of a by-gone t3^e to deprive not merely
the trial judge but the law, of all influence upon
trials, and to leave everything to be disposed of
on the arguments."

Unhappily the counsel so described are not
wholly "bygone," and in at least one state of
my acquaintance there exists an organization of
lawyers principally concerned in personal injury
cases, which systematically endeavors to obtain
legislation that shall remove every obstruction
which the judge can interpose between them and
the results which they seek.

The practical results would be ludicrous if
ii6

DELAYS DURING TRIAL

they were not so disastrous. Let me give you
some specimens.

In some jurisdictions the judge is allowed only
to give or refuse written requests for rulings sub-
mitted by counsel and is forbidden to say any-
thing else to the jury. The judge must read
these requests before the argument, and as a
result, when counsel begins to close, he leaves
the Bench and impanels another jury, letting
counsel argue unchecked. It is difl5cult to say
what may not happen where such hcense is
allowed.

Jn Iowa and in North Carolina statutes
'provide that the Court shall not limit the time
of any attorney addressing a jury. What is
possible where no limit is allowed may be inferred
from the fact that before a limitation was imposed
in Massachusetts one counsel argued seventeen
hours and his opponent eighteen hours in an
ordinary case, while some years ago in Delaware
the Court gave a week to the hearing of a case
which in the Supreme Court of the United States
117

REFORM OF LEGAL PROCEDURE

would have taken four hours, and the counsel
spent their time while I was present in reading
passages from decisions, while the judges were
naturally somnolent. Mere sympathy for the
Court and jury should forbid such barbarous
practices.

The judge's right to see that what happened
at the trial is properly stated in the bill of
exceptions is not even secured, for in Texas a
law provides that if a judge refuses to sign such
a bill "it shall be lawful for any two attorneys
who may be present at the time to sign such bill
of exceptions, which shall have the same force
and effect as if signed by the judge."

Another statute, fortunately of brief existence,
forbade a judge to require counsel to stand during
the examination of witnesses. The genesis of this
statute was thus imagined by Mr. Justice Brown,
late of the Supreme Court.

"Counsel while examining a witness is sitting
rummaging over papers, or otherwise wasting the
time of Court and jury. The trial bids fair to
ii8

DELAYS DURING TRIAL
become interminable, the patience of the judge
is exhausted, and he orders counsel to rise and
give his whole attention to the witness.
Counsel is beaten, and smarting under his de-
feat rushes to the legislature, of which he is
perhaps a member, with a proposition to "sit
down" upon a judge who takes on such airs.
The legislature, in a burst of sympathy passes
the act — counsel is avenged and the judge
for the time being is squelched."

The act was repealed in just one year from its
passage.

And finally the Constitution of Nebraska
provides that "the right to be heard in the
Supreme Court on error or appeal shall not be
denied," a provision which compelled the Supreme
Court of Nebraska after three trials to hear a
case involving 28 cents.

Mr. Pound well says: "The individual gets
so much fair play that the public gets very little."
The whole tendency and object of such legis-
lation is to make the brilliant advocate master
119

REFORM OF LEGAL PROCEDURE

of the Court to the manifest impairment of jus-
tice, and to give the rich litigant who can pay
such an advocate an enormous advantage. The
Bar should organize to oppose all such laws and
to make the judge a controlhng force, and not
"a mere umpire" compelled "to sit quietly by
and see a manifest wrong done simply because
young or inexperienced comisel have overlooked
or misapprehended a vital point" — to borrow
the words of Mr. Justice Brown. As it is, says
Mr. Pound, "The trial judge, without the
commanding position which the common law
contemplates, hampered by legislative restric-
tions, and held in check by reviewing tribunals
removed from his difficulties, is driven to a cau-
tious, timid, dilatory course, which does not
comport with the requirements of business-like
administration of justice."

The unwillingness to let the judge charge the

jury on facts, for fear that he may influence them

upduly, is the more absurd when we remember

that in the most compUcated and important

1 20

DELAYS DURING TRIAL

matters the judge himself decides the facts. All
the cases which arise in admiralty, where the
amounts involved are sometimes very large, are
decided by the judge alone. In equity, where we
find such cases as the suits to dissolve the
Standard Oil Trust, and the patent causes which
involve millions of dollars and affect us all more
or less, to say nothing of numberless suits in
which the public is less interested but in which
issues of great importance to the parties are
tried, the judge, or often a lawyer appointed by
the judge to act as master, determines the facts.
Most of the questions which arise under the
Bankrupt law are decided by judges or referees,
and I need merely allude to the questions of
fact which The Interstate Commerce Commission
or Railroad Commissions and like bodies deter-
mine. Is it not ridiculous that while we give
judges sitting alone such powers, we will not
trust them to help a jury determine a question
of fact in the pettiest case that is tried before
them?

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REFORM OF LEGAL PROCEDURE
The jury, which settles the facts, acts upon
evidence which it must remember more or less
imperfectly; the counsel who argue the case,
the judge who presides, and the Appellate Court
which reviews, have a stenographic report of all
that is important. A juryman fresh from
service asked me whether pro\dsion could not
be made for giving the jury the same help.
Men's memories, after a trial lasting several
days or very likely weeks, will certainly dififer
as to what the testimony of a witness was, and
differing recollections as to the words of an
important conversation perhaps may determine
a case, or at least lead to long discussion between
men unused to argument. There may be prac-
tical difficulties in the way of sending the
stenographer's report to the jury, though these
are probably, in large part imaginary, and it
would involve more trouble and expense, but it
could be left to the judge in any case whether
it should be done. The failure to give the
jurors this help, which the lawyers and the

122

DELAYS DURING TRIAL

courts need, however, emphasizes the impor-
tance of giving the jury the benefit of a clear
and impartial summing up, pointing out the
questions and discussing the evidence. The
people of England, where this has always been
done, are satisfied. There is no reason why it
should not be equally satisfactory in this
country. If we cannot trust our judges with
this power, we must get judges whom we can
trust, and pay what is necessary to command
their services. The price is a fixed tenure, in-
dependence, adequate powers, and a proper
salary, but I will discuss this question more
fully hereafter.

Thus far I have been deahng with the delays
arising when a case is tried before judge or jury.
There are, however, many cases which have to
go through a process of sifting before they
reach this stage. These are cases at law or in
equity involving questions of account or a long
investigation of disputed facts, which for that
reason are sent for preliminary examination to
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REFORM OF LEGAL PROCEDURE

a person appointed by the court to hear the case
and report the facts and his findings. In equity,
the report of a master has the same weight as the
verdict of a jury in establishing facts, and while
his findings may be reviewed by the Court, there
is a strong presumption in their favor. In other
cases, the report has less probative force but may
make a prima facie case for the party in whose
favor the magistrate finds. Again, as in the
courts of the United States, cases are sent to an
examiner who takes the testimony of the witnesses
and reports the evidence to the Court with no
conclusion of his own. The cases in which a
master, auditor, or like officer is appointed to find
facts or take evidence, are, as a rule, the most
important and difficult cases which come before
the courts. They involve the largest amounts,
and often questions of the greatest public impor-
tance, and for every reason a prompt decision is
important. Yet it is in just this class of pro-
ceeding that delay and expense reach their
maximum.

124

DELAYS DURING TRIAL

Courts and counsel are alike responsible for
the existing abuses, and the cause is generally
pure laziness. A long hearing interferes with
the docket of a court, and with the daily business
of counsel. It is much easier for a judge to
act on the conclusions of some one else than to
hear testimony, examine accounts, weigh evidence
and reach his own conclusions. It is much easier
for counsel to put a long case over to some
uncertain time when it can be taken up conven-
iently. A case once begun in court must proceed
without interruption to the end, while a case
before a master may be broken off, or hearings
assigned for a given day may be postponed,
whenever the convenience of counsel or magis-
trate suggests it. A case before a master, in
short, is something to be taken up when neither
master nor counsel have anything else more
important, or perhaps more agreeable, to do.
After a long interruption, time is necessarily
wasted both before and at the renewed hearing
in picking up the lost threads, a process which
125

REFORM OF LEGAL PROCEDURE

must involve expense either to counsel or client.
The more important the case, the more lawyers
employed, the more eminent the counsel and the
magistrate, the greater the difficulty in finding the
time during a busy year when all are able and
willing to attend a hearing. The delays in such
cases, therefore, are sometimes appalling, and if
a lawyer has a bad case which he does not want
to try, the chance of wearying or worrying an
adversary into settlement is very great. To get
a case sent to a master often means victory, for
in that field a Fabius may well conquer a
Hannibal.

In the hands of unscrupulous coimsel, moreover,
this procedure may become a potent means of
levying blackmail. Witnesses may be examined
day after day for weeks at a time, called upon to
search for and produce books and papers which
have long been forgotten, exposed to charges of
deliberate destruction or concealment in case
some document called for has been destroyed or
lost, and harassed in every manner which the
126

DELAYS DURING TRIAL

experience and skill of counsel can suggest. The
witness may be taken from important business
at great cost and risk to his or others' affairs, he
may be and generally is unused to the sneers
and innuendoes in which counsel too frequently
indulge, and the mental strain to which the
process exposes him is as genuine torture as any
inflicted by the boot or the rack, and as well
calculated to overcome the power of resisting even
an unjust demand. I have known a witness
examined for six weeks, from day to day, and
dying under the strain when the examination was
only half concluded, and any lawyer of large prac-
tice can recall instances, perhaps not as extreme,
but only less so. The motive of the counsel may
be entirely good. He may feel that his client's
interest demands such measures or he may
not, but the effect on the witness is the same.

Were the trial in court, the witness in such a

case would be protected. No such prolonged

examination would be permitted, for the judge

would interfere and shorten the process, but a

127

REFORM OF LEGAL PROCEDURE

master or an auditor, though clothed with the
power to exclude evidence or stop examination,
is naturally and justly reluctant to exercise this
power strictly. He may have a decided opinion
as to the law, or as to the value of evidence,
but when that opinion is questioned by counsel,
he remembers that he is only preparing the case
for the Court and that the Court may not agree
with him. He feels that it is his duty to let the
Court have the means of passing on any point
which counsel wish to argue, and therefore to
put the record in such form as to present all
that either counsel considers important to the
decision of every question which is raised. He
has nominal power to regulate the hearing, but
practically he can only suggest and make rulings
for the record. If his authority is disregarded,
he may ask the Court to enforce it, but an appli-
cation to the Court is not pleasant; it is difi&cult
to reproduce in court the situation before the
master, and hence the Court is rarely asked to
intervene.

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DELAYS DURING TRIAL
If the magistrate is an examiner appointed to
take evidence, he has no authority to exclude any-
thing, but can only see that the scribe or ste-
nographer records correctly all that is said, either
by witness or counsel. Whether the evidence is
competent or flagrantly incompetent, whether the
objections of counsel are unnecessarily verbose
and vexatious, or entirely proper, they must be
written out, and the result is often a mass of
irrelevant matter collected at great expense of
time and money, and disregarded alike by
Court and counsel.

I have taken testimony in a railroad case from
Boston to Mobile and in various intermediate
cities, occupying the time of a master, some
seven counsel, and various stenographers, for five
or six months, and it was afterwards printed.
The whole enterprise involved very large expense
to the parties, yet not one word of that testi-
mony was considered by the Court which heard
the case, for it ruled that the plaintiff had no
standing to present his claim.
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REFORM OF LEGAL PROCEDURE

The following statement by Judge Hough of
New York, made in deciding an important
patent suit, will be found in a recent volume of
reports:

"Note. — It is a duty not to let pass this
opportunity of protesting against the methods
of taking and printing testimony in equity,
current in this circuit (and probably others),
excused, if not justified, by the rules of the
Supreme Court, especially to be found in patent
causes and flagrantly exemplified in this litiga-
tion. As long as the Bar prefers to adduce
evidence by written depositions, rather than
viva voce before an authoritative judicial ofl5cer,
I fear that the antiquated rules will remain
imchanged, and expensive prolixity remain the
best known characteristic of equity. But reforms
sometimes begin with the contemplation of hor-
rible examples, and it is therefore noted that
the records in these cases, as printed, bound, and
submitted, comprise 36 large octavo volumes,
of which more than one-half contain only repeated
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DELAYS DURING TRIAL

matter, i.e., identical depositions, with changed
captions, and exhibits offered in more than one
case. In reading the testimony of one side in one
set of cases, there were counted over loo printed
pages recording squabbles (not unaccompanied
with apparent personal rancor) concerning ad-
journments; and after arriving at this number
it seemed imnecessary to count further. In
many parts of the record there are not five
consecutive pages of testimony to be found
without encountering objections stated at out-
rageous length, which may serve to annoy and
disconcert the witness, but are not of enough
vitality to merit discussion in 2,000 pages of
briefs. Naturally tempers give way under such
ill-arranged procedure, and this record contains
language, uncalled for and unjustifiable, from
the retort discourteous to the He direct. And all
this lumbers up the court record-room, while
clients pay for it! Even when evidence in
equity was taken by written answers to carefully
drawn interrogatories, the practice was not
131

REFORM OF LEGAL PROCEDURE

marked by economy or celerity; but stenog-
raphy and typewriting, the phonograph and
linotype, have become common since our rules
were framed, have made compression and brev-
ity old-fashioned, increased expense, and often
swamped Bench and Bar alike by the quantity,
rather than the quality, of the material offered for
consideration. Motions to expunge and limit
cross-examination should have been made in
these cases, though they are feeble remedies,
exposing counsel to personal reproach, and
rendering judges afraid of keeping out evidence
what they cannot (on motion, at all events)
understand. But the radical difficulty, of which
this case is a striking (though not singular)
example, will remain as long as testimony is
without any authoritative judicial officer present,
and responsible for the maintenance of discipline
and the reception or exclusion of testimony."

When we consider that the method of taking
evidence which Judge Hough so strongly con-
demns is the method prescribed by the rules of
132

DELAYS DURING TRIAL

the Federal Courts in equity suits, that in this
way are tried the most important cases which
engage the attention of those courts, such as the
suits to dissolve the great trusts, the suits over
the sewing machine, the telephone, and all other
patents, to say nothing of other suits involving
the vital interests of the parties and often of
public importance, we may begin to appreciate
the formidable obstacles which confront the im-
happy Htigant who is obliged to assert or defend
his rights in an equity suit brought in the courts
of the United States. I cannot see how any but
a very rich man or combination of men can afford
to assert or deny rights under a patent, or how a
poor patentee can obtain justice against a rich
infringer. Such a system in an enlightened age
and country like our own is intolerable.

The proceedings before masters, auditors,
examiners, and similar officers bearmg different
names in different jurisdictions, are prolific
sources of delay, expense, and such other evils
as I have pointed out, for two principal reasons.
133

REFORM OF LEGAL PROCEDURE

The first is the uncertainty as to when the case
will be tried; the second is the waste of time and
money expended in trying immaterial issues, in
hearing incompetent evidence, and in alterca-
tions between counsel whose feelings are strongly
enlisted and whose expressions are not controlled
by any tribunal which they fear to offend.

The remedy is to cut down the function of
these ofl&cers as much as possible, and to insure
a prompt hearing of cases which are committed
to them. For example, the Court before sending
a case to a master should hear the parties and
decide such questions as it can without a master's
assistance. It should define the issues com-
mitted to the master, and instruct him as to
how they should be tried as far as possible. The
Court should insist on such a hearing, whether
counsel agree to a reference or not, and in many
cases it would become evident that the Court
could deal with the whole case more expedi-
tiously and satisfactorily without a master. For
example, an eminent judge in my own state told
134

DELAYS DURING TRIAL

me recently that two counsel came before him
with a motion that a case be referred to a master,
both sides agreeing that it was necessary. He
made some inquiry as to the nature of the dispute
and the time likely to be consumed in hearing
the case. The answer to the last question was
"Two weeks." "I will hear the case," he said,
and as he said it he noticed that the faces of
both counsel dropped. They were called upon
to face at once a trial which they had hoped to
postpone. He did hear it in two days, and the
dispute between the parties was thus settled
promptly instead of dragging along for months,
and perhaps years. There can be no doubt that
a scrutiny by the Court of every case before it is
committed to a master would largely reduce the
amount of work now confided to such oflEicers.
So in dealing with cases now sent to examiners,
whose only fimction is to report the evidence
taken before them. The rule should be that all
suits should he heard by the Court itself. It
involves less labor and insures better results.
135

REFORM OF LEGAL PROCEDURE

The labor will be less, because the Court now
must read all the evidence, material and imma-
terial, and it takes little more time to hear than
to read what a witness says. If only material
testimony were heard and immaterial excluded,
the total bulk of testimony would be reduced and
time saved, while much wrangling which now
interrupts the proceedings would be avoided.
The results will be better, because the judge
who hears a witness can weigh the value of his
testimony much better than when he simply
reads it. The delay in answering, the troubled
expression, the change of color, the embarrassed
maimer, which are apparent to the eye and are
often convincing proof of falsehood, are not
preserved in the printed record, and a reply
over which a witness has hesitated for some time
reads as if given promptly and clearly. The
words alone appear, and they are often the least
valuable part of the witness's evidence. How
often have you met some worthless beggar in the
street who has told you some pathetic tale of
136

DELAYS DURING TRIAL
misfortune and want. If his words were printed
they would touch the heart of any reader, but
you who see the watery eye, and smell the
breath of the speaker, know perfectly well that
he does not deserve help, and that any alms
you might give him would be worse than wasted.
This truth is recognized by every man who
ever tried a case, and appellate tribunals in deal-
ing with the decisions of juries or trial courts
constantly give greater weight to their conclu-
sions because they saw and heard the witnesses.
It is very unfortimate that these aids to a just
decision are so largely denied to htigants in
the courts of the United States and all other
courts which decide on a written report of the
evidence.

Were the rule adopted that the Court itself
should hear the evidence, the tribunal called
upon to try a suit in equity would first hear the
parties and ascertain the character of the evidence
to be rehed upon. Counsel could be called upon
to state whether he had any witnesses that could
137

REFORM OF LEGAL PROCEDURE

not be present at the trial, and why. The
Court could then decide what testimony should
be taken by deposition, and within what time,
bearing in mind that, as a rule, the witness can be
brought to the tribunal more easily and cheaply
than the examiner and counsel can be carried
to the witness. The work of the examiner can
in this way be much curtailed without increasing
the Court's labors and with great advantage to
the parties. To have one magistrate hear and
report and another read and decide is in many
cases an imnecessary dupHcation of labor.

To seciure a prompt trial before master or
auditor the hearings before them should not be
left to the convenience of counsel. The amount
of important work now confided to such judicial
officers is sufficient to justify the creation of
regular tribunals to do this work. To-day there
are certain lawyers who are much employed as
auditors and masters, and many others who are
employed occasionally. They are poorly paid,
they can never be sure that the days which they
138

DELAYS DURING TRIAL

appoint for hearings will not be lost because
counsel at the last moment decide to postpone,
and there is therefore danger that the work will
fall into the hands of men whose time is not
very valuable, especially as busier men find it
harder to waste time. There are some who
seek such employment at the hands of their
friends, and who, desiring more, cannot help
respecting the hand that feeds them. As the
Court generally asks the parties to agree upon the
man, there is almost always a struggle between
counsel to select some one who from temperament
or association is at least certain not to favor the
other side. In a word, the whole system is
opposed to the fundamental principle which was
well stated by high authority in these words:
"The tribunal should always wait the case, not
the case the tribunal." In other words, an
impartial and competent court or magistrate
should be created to try all cases that arise, and
not a special tribunal be selected by the con-
tending parties for a particular case. A perma-
139

REFORM OF LEGAL PROCEDURE

nent court follows fixed rules of law, and avoids
making bad precedents. The special tribunal
only settles the dispute before it, and often takes
a short cut across the law to reach its conclusion.
Referees are apt ''to split the difference."

In any jurisdiction where there is enough work
there should be permanent auditors or masters
adequately paid and able to regulate and enforce
the attendance of parties before them. They
should stand as courts, and trials before them
should proceed from day to day as in courts,
except for good cause shown. It should not
be possible to turn the parties out of court
because their case is difficult and sure to oc-
cupy much time, without taking adequate meas-
ures to secure prompt action from the tribunal
to which the burden of dealing with their dispute
is transferred. The present system is indefen-
sible. To apply the remedies which I have
suggested we must have able, strong, and
courageous judges. Without these no courts
can succeed.

140

^

DELAYS DURING TRIAL

Indeed, the suggestion that before sending a
case to a master or auditor the Court have a
preliminary hearing, and decide all questions
which it can without the aid of such an ofl&cer,
might well be extended. If there were a judge
before whom either counsel in a case might
summon his opponent with a view of determining
what the real questions at issue were and pro-
viding for their prompt determination, much time
would be saved to courts and parties. A justice
sitting on the Supreme Bench of the United
States, and of large judicial experience before he
became a member of that tribimal,once said to me
in speaking of cases heard before it: "They are
generally decided at the argument. It is said
that in battle the opposing lines rarely cross
bayonets, for before they meet one or the
other gives way. So in court, one or the other
side so clearly preponderates at the argument
that the decision is easy."

A wise and experienced judge trying to ascer-
tain the real question between the parties in a
141

REFORM OF LEGAL PROCEDURE

case, and upon what theories of fact and law each
was proceeding, could clear away a great deal
of rubbish, could make the case easier for the
Court to try, could determine the issues, and how
they should be tried, could point out their errors
to counsel, and in many cases could bring about
a settlement, for a very large proportion of
Htigants would yield to his advice. _________ -^'

This is not mere theory. The plan has been
adopted in the English Courts which, by a series
of rules, has made it possible for counsel to
summon his opponent before a judge and upon
a proper showing secure directions which speed
the cause. Let me read you specimens of these
rules.

380. " Where in any cause or matter it appears
to the Court or a judge that the issues of fact in
dispute are not sufficiently defined, the parties
may be directed to prepare issues, and such
issues shall, if the parties differ, be settled by the
Court or a judge.

381. " The Court or a judge may, at any stage

142

DELAYS DURING TRIAL

of the proceedings in a cause or matter, direct
any necessary inquiries or accounts to be made
or taken, notwithstanding that it may appear
that there is some special or further relief sought
for or some special issue to be tried, as to which
it may be proper that the cause or matter should
proceed in the ordinary manner.

657a. " Whenever an application shall be made
before trial for an injunction or other order, and
on the opening of such application, or at any
time during the hearing thereof, it shall appear
to the judge that the matter in controversy in
the cause or matter is one which can be most
conveniently dealt with by an early trial, without
first going into the whole merits on affidavit or
other evidence for the purposes of the applica-
tion, it shall be lawful for the judge to make an
order for such trial accordingly, and to direct
such trial to be held at the next or any other
assizes for any place, if from local or other
circumstances it shall appear to him to be
convenient so to do, and in the meantime to
143

REFORM OF LEGAL PROCEDURE

make such order as the justice of the case may
require.

967. "A Court or a judge shall have power to
enlarge or abridge the time appointed by these
rxiles, or fixed by any order enlarging time,
for doing any act or taking any proceeding, upon
such terms (if any) as the justice of the case may
require, and any such enlargement may be
ordered, although the application for the same
is not made until after the expiration of the time
appointed or allowed."

Such able and experienced lawyers as alone are
appointed to the English Bench, when brought
into direct and somewhat informal contact with
coimsel, can boil the case down and often dispose
of it entirely in a comparatively short hearing.
It would surprise the members of our Bar to
see the Privy Council, or a County Court, simplify
a case and expedite the hearing.

144

IV

DELAY IN APPELLATE COURTS

^ I ^HUS far I have dealt with the delays
-■- which beset the path of the suitor be-
fore he gets his first decision. This unhappily
is too often only a beginning. There is still
before him a long vista of appeals, and possible
new trials. May I give you an illustration of
what is possible. A Borough President, in New
York, summarily removed a chief of bureau,
and the latter questioned his power to do it
without a hearing. One would say that the
question was simple and that it should be de-
termined at once. Yet the case which the
removed officer brought to test the question
had forty-seven hearings at Special Terms of
the Supreme Court, twenty-one hearings at trial
terms, eight appeals were heard and decided
145

REFORM OF LEGAL PROCEDURE

in the Appellate Division, and two in the Court
of Appeals. At the end of six years three un-
heard appeals were pending, and $38,000 of
back salary depended on the final decision,
while the cost of the litigation to the taxpayers
was even more. I take these facts from the
New York newspapers, but I spare you their
indignant and wholly just reflections upon such
an exhibition of the law's incompetency.

Again, the Franchise Tax law of New York
was passed in 1899. It was held constitutional
by every court of New York and by the Supreme
Court of the United States. Nearly five years
later, two-thirds of the tax for ten years was still
impaid, and the public service corporations were
still Utigating about the assessment. New
York saw before it an indefinite vista of delay,
yet taxes should be collected promptly.

No wonder the Committee appointed by the
Association of the Bar of the City of New York
in a report to that body says:

"Many experienced judges claim that our
146

DELAY IN APPELLATE COURTS

system of practice has developed into an appellate
system based upon the fundamental idea that
the trial and decision are presumptively wrong.
. . . Instead of a system of single trials with a
minority of reversals on the merits, as in juris-
dictions which have modernized their practice,
a system of several trials of almost every impor-
tant case, resulting from technical reversals not
affecting the merits, has arisen . . . making
the law a game rather than a science."

And they quote Justice O'Gorman, the new
senator from New York, who says:

"One of the gravest faults with our present
mode of trial is the ease and frequency with
which judgments are reversed on technicalities
which do not effect the merits of the case and
which at no stage have affected the merits."

Can you have a severer indictment than this
of Courts which presumably sit to do justice?
In striving for perfection in matters immaterial,
what is material is forgotten, and justice is
ignored.

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REFORM OF LEGAL PROCEDURE

The English Court of Appeals, on an average,
grants only twelve new trials a year, and these
upon the merits.

It justifies the words of Lord Justice Bowen
spoken more than twenty years ago. "It may
be asserted without fear of contradiction that
it is not possible in the year 1887 for an honest
Htigant in Her Majesty's Supreme Court to be
defeated by any mere technicaHty, any slip, any
mistaken step in his Htigation." Cannot we
do what the EngHsh have done?

The rule should be that from the trial Court
there should be an appeal to a bench of judges,
but only one appeal. A citizen has the right to
a trial of his case, and to a review of the proceed-
ings at the trial by a tribunal of competent
lawyers. This is necessary, that the law may
be kept uniform, and that a man's rights may
not depend on decisions made hastily in the
heat of a trial. The law imder which the com-
munity lives should be settled after cool delibera-
tion. We should take pains to make the tribunal
148

DELAY IN APPELLATE COURTS
to which this task is confided competent in every
way, but when this has been done nothing is
gained by giving the parties another hearing
before another appellate court. The first may
of course make mistakes, but so may the
second. It is in most cases more important
that the law should be settled than how it is
settled. Men accommodate themselves to any
fixed rule of conduct, and very bad errors are
soon corrected by the court which makes them.
The theory is that a final court of great and
perhaps more highly paid lawyers is more reliable.
Then why have the intermediate appeal? Some
bench of lawyers must finally settle the law in
each jurisdiction, so far as the courts can settle
it. Why not have one such court and make it as
good as the lot of humanity will permit, rather
than establish a poor court to make errors for
the good court to correct. Lawyers may and
do differ as well as doctors, but the highest
court is always right because it is the highest.
Nothing can destroy the layman's confidence
149

REFORM OF LEG.\L PROCEDURE

in the law more than to have one bench of lawyers
overrule another. It is better and cheaper to
have only one appellate court and make that
worthy of public confidence. Were this rule
adopted, the delays arising from successive
appeals now possible in many states would be
avoided.

To this rule there is one exception. Every
citizen of the United States lives tmder two
systems of law. The State courts administer
one system, the Federal courts another, and on
many questions the rules estabUshed by the two
tribimals differ in the same state. Not only this,
but the laws of the different states vary widely
in many respects, and hence the importance of
the very common question whether in a given
situation the lex loci contractus or the lex fori
shall govern, and of other questions arising from
the conflict of laws. So far as the differences
between the laws of the states are concerned,
these are best dealt with by imiform legislation,
and for many years the American Bar Association
150

DELAY IN APPELLATE COURTS

has been laboring to promote this uniformity
in many matters with great success. The states
learn readily from each other, and a new law
adopted by one is soon copied by others, as the
AustraHan ballot law went from state to state.

As between the Federal and the State courts
in the same state, the differences also must be
dealt with by legislation in most cases, and here
imiformity is most desirable. To-day, a man's
rights may change as often as he crosses the
boimdary of a state, or if he remains at home he
may find one law, if his case is tried in the State
court, and another, if it is removed to a court of
the United States. Upon identical facts, he
may owe one duty to his fellow-citizen and
another to a foreigner.

It would be a great blessing to the people
of this coimtry if they could live under imiform
laws, if the status of husband and wife, the law
of marriage and divorce, statutes regulating
corporations and the rights and Uabilities of
their stockholders, the statute of limitations
151

REFORM OF LEGAL PROCEDURE

and the methods of assessing and collecting
taxes were uniform, or properly accommodated
to each other. To-day the laws which fix in-
heritance and transfer taxes are so nimaerous
and ill-assorted that a man is driven more and
more to invest his money in his own state rather
than run the risk of paying two, three, or four
inheritance taxes on the same investment, and
in time it will be found that the free passage of
capital from state to state, so essential to the
development of this country, will be seriously
hampered to the disadvantage of us all. It has
been well said that, to-day, a man cannot afford
to die. If you think that four taxes on one
investment is an instance of tropical imagina-
tion, let me set you right. A lady dies in
California. She is the beneficiary imder a
Massachusetts trust, and the trustees resident
in Massachusetts have invested in the stocks of
Illinois or New York corporations. She has
power to dispose of the trust property by will,
and does so. California claims a tax because
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DELAY IN APPELLATE COURTS

she resided there, New York and lUinois because
shares in their corporations passed in those
states, Massachusetts because the trust property
passed there, and the United States its tax on
the whole. This medley of conflicting laws
must be dealt with by lawyers and the legisla-
tures of the states, and when you are members of
these bodies you may well bear in mind this
situation, and help your profession and your
country by trying to improve it.

But the interpretation of the law when passed
should be uniform, and for that reason the
suggestion that there should be only one appeal
in each case will not apply in cases which arise
imder the constitution and laws of the United
States. It is necessary that there should be an
intermediate appellate court, like the Circuit
Court of Appeals, to deal finally with perhaps
most of the cases that arise in the Federal Courts
of each circuit, for the Supreme Court of the
United States would be overwhelmed if every
such case could be brought before it. There is
153

REFORM OF LEGAL PROCEDURE

however a large class of cases where questions
of great importance to the public as a whole are
decided differently by different Circuit Courts
of Appeal. The interpretations of the Sherman
Anti-Trust Law vary considerably in different
circuits, and cases in which local feeling or preju-
dice is aroused often go wrong, as has happened
where the liability of a city or town to pay
its bonds has been questioned. Again, the prac-
tice in regard to the appointment of receivers,
in theory an interlocutory but in effect often a
final decree, has been affected injuriously by the
varying action of different judges, and is now
in serious confusion. These differences can only
be removed by the decision of the Supreme
Court, and for that reason and in such cases
appeals to that court should be facilitated,
and a method provided of promptly determining
for example whether a court has erred in taking
an individual's property from him, as is now
not infrequently done by the appointment ex
parte of a receiver. Such a decree may ruin a
154

DELAY IN APPELLATE COURTS

man or a corporation, and the injured party
should not be obliged to wait long before it is
decided finally whether the decree is right. It
is not possible within the limits of these
lectures to do more than point out that where
the law of the United States must be uniform,
the right to invoke the judgment of the Su-
preme Court should be clearly secured and
the process made easy.

The statutes and rules which regulate appeals
from one federal court to another are unnecessarily
cumbrous and confused. For example, in certain
classes of cases it is difficult to decide with all
the light that the decisions of the Supreme Court
can give, whether an appeal from the Circuit
Court should be taken to the Circuit Court of
Appeals or to the Supreme Court of the United
States, and the choice once made is final. Yet
if the litigant chooses wrong the error is fatal. It
should be possible with proper care and time to
remove such reproaches to our system. The
whole federal practice can be much simplified.
155

REFORM OF LEGAL PROCEDURE

Assuming that there is to be but one appellate
court for almost all cases, what are the delays
which attend any appeal, and how can they be
avoided?

There are of course the delays which arise in
settling the bill of exceptions or other statement
of the case on which it is carried up. These
arise from the business or laziness of counsel and
the indulgence of these by the Court. For them
there is no satisfactory remedy except a keener
professional conscience on the part of the Bar
and less elastic rules or practice on the part of
the Bench. The tendency is to extend by
legislation the time within which the record for
the appeal can be made up, but this should be
stoutly combated. There should be a short
time fixed by rule, with discretion in the Court
to extend it for good reason, and that discretion
should be exercised sparingly. My professional
experience has satisfied me that when a thing
must be done within a certain time it is done,
and every postponement makes it harder to do.
IS6

DELAY IN APPELLATE COURTS

It is easier to complete a task which has been
begun, than to do it over again from the begin-
ning, and when one returns after an interval
to the preparation of an argument or a record,
he often finds it necessary to start at the begin-
ning again. The exceptions should be settled
while the trial is recent, and its events fresh in
the memory.

It is in deciding whether or not to carry a
case further that a lawyer needs to remember
that he is an officer of the Court, whose duty it
is to help in securing justice, and not the willing
agent of an angry or imscrupulous client, whose
purpose is to delay or defeat it. "It must be
presumed," said Mr. Justice Clifford of the
Supreme Court of the United States, "that it is
the desire of the members of this Bar to have the
Court decide right," a violent presumption in
some cases perhaps, but which every honorable
lawyer should help to justify. He should have
the strength and courage to resist his client, and
to carry up only substantial questions.
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REFORM OF LEGAL PROCEDURE

The true attitude of a lawyer may perhaps be
illustrated by an experience of my own. I
advised a client that another man owed him a
very large sum of money. Presently the other's
coimsel appeared in my ofl&ce, and said, "I hear
you have advised A that my chent B owes him
$100,000." "Yes," said I, "I have." "I sup-
pose," rephed he, "that you rely on the case of
Whitcomb v. Converse.''^ "Yes," said I. "I do."
"Have you got the report here? " he continued.
"If so, let me have it." I handed it to him. "I
suppose," he said, "that you rely on this passage
in the opinion." I answered that I did.
"Don't you see," he went on, "that these words
can be read so as to give the passage a different
meaning, and that if so read, your advice is
wrong?" I looked at the passage again and
said, "Perhaps; but I should not be willing to
advise my chent that such was the true inter-
pretation." "No more should I," he concluded.
"It is not. The answer to my suggestion is
clear," and he stated it. " I shall advise my
158

DELAY IN APPELLATE COURTS

client to pay," and he did pay. A weaker
man would have carried the question up and
lost his case after delaying my client for a
year or more, and putting both parties to large
expense.

All points are not "free and equal," and a man
injures the parties, the reputation of his profes-
sion, the administration of justice, and in the
long run himself, if he wastes time and money in
discussing frivolous points or questions which,
however interesting in themselves, do not really
affect the merits of his case. In deciding whether
to appeal or not, and what questions to raise,
as well as in arguing his case, counsel will do well
to bear in mind the words of Mr. Justice Hughes,
as recently reported in the newspapers. "No
lawyer can render a higher service either to his
cHent or to the Court than in the preparation
of a complete, candid, intellectual, honest state-
ment and argument of his case to the Court
that he addresses. Sophistries, evasions, and the
tricks of the pettifogger are indefensible from an
159

REFORM OF LEGAL PROCEDURE

ethical standpoint, and are of less avail in winning
a case than some imagine."

I cannot too strongly urge upon you all the
obligation "to delay no man for lucre or malice,"
which every lawyer assumes when he enters the
Bar. Let me also suggest to you that to present
a sophistical argument to the Court is an insult
to the intelligence of the Bench. When you
feel that your contention is unsound, it is safe
to assume that this will be at least equally
obvious to the trained minds of the judges.
No one Ukes to be taken for a fool, and it is
well to remember Hosea Biglow's aphorism:
"T'ain't a knowin' kind of cattle that gits
ketched with mouldy corn." You will stand
better with your judges if you assume that
they are as intelligent as yourself, to put it
mildly, and also avoid the error of many law-
yers who, as one of our Chief Justices said,
"present a case on the theory that the Court is
thoroughly familiar with the facts, but pro-
foundly ignorant of the law."
1 60

DELAY IN APPELLATE COURTS

And now we stand in the presence of the Court
where a critic from the Bar is certainly in a
delicate, perhaps in a dangerous position. We
have before us three stages — argument, delibera-
tion, and decision, and there is no room for delay
by the Bar except in the first stage. Against
this the Courts are inclined to set their faces
sternly. In England and in some of our states
counsel are not hmited, but the tendency is
strongly the other way. In most of the Federal
and State courts the limitation is strict, and
extensions are not easy to obtain. As a result
counsel are constantly arguing "to the clock in-
stead of to the Court," as one of my friends put
it, and in cases where the facts are complicated,
and especially where several lawyers are to
divide the time allowed, that sense of freedom
which a counsel must feel in order to do his case
justice is destroyed and he is constantly wonder-
ing how far he can go on one point and still have
time to develop the others, or how long he can
speak without taking time from his associates.
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REFORM OF LEGAL PROCEDURE

Were there no limit set by rule, a court can
always convey to counsel the impression that he
has talked long enough. I have seen it done by
very open indications of weariness, but while
these are necessary in extreme cases, they are
rarely required. Every competent judge of
experience has learned how to indicate without
transgressing the laws of courtesy that an argu-
ment should not be continued. From the Court's
point of view it is not strange that it should wish
to protect itself against prolix discussion and
fooUsh argument or indefinite reiteration. The
time limit must be retained, but a Uttle more
indulgence in important and complicated cases
may well be given, especially where the counsel
employed are not in the habit of wasting time.
The law must be no respecter of persons, but it
may well respect methods, and the cause of
justice ^-ill not suffer if coimsel who abuse the in-
dulgence of the Court find it withdrawn, and if on
the other hand those who have sho^\Ti that they
deserve the confidence of the Court receive it.
162

DELAY IN APPELLATE COURTS

The present practice should make for con-
densed statement, but it doubtless tends also
to increase the length of the printed brief, and
perhaps the day is not far distant when all
cases may be argued in writing, though against
that result should be quoted the remark of Mr.
Justice Miller, one of the ablest judges who
ever sat on the Supreme Bench of the United
States, to Mr. Sidney Bartlett, one of the ablest
lawyers who ever appeared before it. Never
submit a case on briefs."

Indeed we could not help regretting the
change if oral argiunents were abandoned.
There is something in the contact between
Court and counsel, in the questions of the
Court and the answers of the advocate, which
stimulates the minds of both, and compels
attention while it arouses the necessary interest.
Oral argument to the Court is one of the greatest
intellectual opportunities which counsel have,
and were it given up, much of the romance
which attends the practice of the law would be
163

REFORM OF LEGAL PROCEDURE

lost. It is true that most of us apprehend more
readily with the eye than with the ear, and that
we learn the law by reading the reports. But
it is also true that one thinks often more effect-
ively on his feet when his brain is full of blood,
and can make a better statement or give a more
pertinent illustration than occurs to him in the
cooler atmosphere of his study. It is also true,
that when after a lapse of months one reviews
an old brief, he is often surprised to find that it
is less cogent and convincing than he thought
it when it was written, and that it does not
convey to his own mind what he thought it must
convey to the mind of the Court. Still if we
could be sure as to when and in what circmn-
stances of fatigue, haste, or possible somnolence
a brief is read, we might be willing to trust the
careful written statement of our case rather than
the more or less imperfect presentation possible
in a limited oral argument. At present both
seem necessary.
One word of practical advice. Never read
164

DELAY IN APPELLATE COURTS

your brief to the Court, or read extensive citations
from the authorities. The mere repetition of a
brief is not an oral argument, only a tedious and
useless waste of the Court's time. Unless counsel
can state the case clearly and forcibly without
reading, unless he can add something to the
written brief, his argument does not help the
judges, and this part of the law's delay had best
be eHminated.

We have now reached the door of the consul-
tation room and here we must pause. We
cannot penetrate its secrets. Attempts have
been made by statute in some states to insure
prompt decisions, but it is impossible to establish
a hard and fast rule, or make judges or jurymen
agree by the clock.

Mr. Dooley, in one of his inimitable essays,
gives voice to an opinion which is too commonly
held by the ignorant laity:

"If I had me job to pick out," says he,
"I'd be a judge. I've looked over a' the
others an' that's th' only wan that suits.
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REFORM OF LEGAL PROCEDURE

I have the judicyal timperament. I hate
wurruk."

He traces a capital case through all its stages
till it has been argued in the Court of Appeals,
and then describes the proceedings as follows:

"Occasionally a judge iv' th' coort iv appeals
walkin' in his sleep meets another judge, an'
they discuss matthers. 'How arre yer gettin' on
with th' Cyanide case, judge?' 'I'm makin' fair
headway, judge. I've read part iv th' vardict iv
th' coroner's jury las' year, an' nex' month whim
th' fishin' is over I expect to look into th' indict-
ment. 'Tis a puzzlin' case. Th' man is not
guilty.' 'Well, good-bye, judge. I'll see ye in
a year or two. Lave me know how ye 're gettin'
on. Pleasant dhreams!'" and so they part. . . ,
"Ye take a Hvely lawyer that's wurruked
twenty hours a day suin' sthreet-railroad com-
panies an' boost him onto a high coort an' he
can't think out iv a hammock. Th' more exalted
what Hogan calls 'th' joodicial station,' th' more
it's like a dormitory."

i66

DELAY IN APPELLATE COURTS

This is all very amusing, and as untrue in its
essence as it is funny, but there is a vein of truth
in it as there is in every one of Mr. Dooley's
essays. The late Judge John Lowell of the
Circuit Court said that he made it a rule to
decide cases in the order in which they were
argued, and this may be commended as a salu-
tary practice. The moment that a judge or
anyone else falls into the habit of dealing with
the easy cases first, he is apt to postpone the
hard ones, salving his conscience with the feel-
ing that he is diHgently at work and cannot
be blamed for deferring a very difficult case till
he has more leisure, rather than delay perhaps
more persons by keeping them waiting while he
ploughs through a long record and decides very
close questions of fact or law. I am old enough
to know however that the longer such things are
postponed, the more they grow to resemble
mountains, and the harder it is to take them up
at any given time. Mr. Dooley helps us in this
matter when he describes all that he finds to do
167

REFORM OF LEGAL PROCEDURE

in a morning when he has a serious job to tackle,
how he reads the newspaper backward and for-
ward, advertisements and all, and how he catches
at every excuse for postponing the hard work
that awaits him. There are no harder worked
or more conscientious men than the judges of our
appellate courts, but they are men, and Judge
Lowell's rule would often help them. The very
fact that an important and difficult case was
a dam behind which a multitude of cases was
accumulating would exercise a pressure, and by
giving one's whole time to a case much can be
accompHshed. Anthony Trollope made it a
rule to write a certain number of words every day,
and he accomplished it by sitting down at a
given hour and going at once to work. A pen
in one's hand is a great help to progress, and the
late Judge Hoar used to say that he considered
his opinion half written when he took a sheet of
paper and wrote at the top "Hoar J." It is the
beginning that is hard, and the feeling that work is
to be done tires most of us more than doing it.
i68

DELAY IN APPELLATE COURTS

If these words of mine can be tortured
into a suggestion to our judges, it is made
with the greatest respect, and with a full appre-
ciation of the difficulties which surround them.

Delays in the lower courts are much less
excusable, for it is often more important to
have a decision than what the decision is. If
wrong, a higher court can correct the error, but
if no decision at all is made, the injury is irrep-
arable. It would be better to have a judge
decide many cases on his impressions at the close
of the argument than hold his decision, as I have
known a motion for a new trial to be held, for
four years. It is fatally easy to put a band
roimd the papers and lay them away for a leisure
time in the indefinite future. For this delay it
is not easy to suggest any remedy, except such
as is found in the election of strong men for
judicial positions, and the creation of a pubUc
sentiment among the members of the Bar which
shall support them in the fearless discharge of
their duties.

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REFORM OF LEGAL PROCEDURE

With all due respect, however, I may be per-
mitted to suggest that the time occupied by any
appellate tribunal in reading its judgments, often
extended by reading several concurring or dis-
senting opinions, is a pure waste of time. As no
one knows in advance when the decision in a
given case will be announced, the parties and
their counsel are rarely present, and the opinions
are often read to an audience entirely without
interest in the case decided. It is difficult to
see what useful purpose is served by a practice
which in most appellate courts has been aban-
doned, but which is still adhered to in the highest
of all.

So much for the delay which besets the course
of legal proceedings from the commencement of
suit till its final determination by the court of
last resort. But its judgment is often not final.
Some error of law or procedure is held to vitiate
all that has been done, and the litigant is com-
pelled to begin again. Such results are inevita-
ble, but they are also deplorable, and a reversal
170

DELAY IN APPELLATE COURTS

for anything that does not go to the merits of
the cause is especially unfortunate. The Amer-
ican Bar Association has suggested one remedy
for this difficulty, and has urged Congress to pass
a statute which contains the following provisions:

"No judgment shall be set aside, or reversed,
or new trial granted, by any court of the United
States in any case, civil or criminal, on the
ground of misdirection of the jury or the improper
admission or rejection of evidence, or for error
as to any matter of pleading or procedure,
unless, in the opinion of the court to which
application is made, after an examination of the
entire cause, it shall appear that the error com-
plained of has injuriously affected the substantial
rights of the parties."

This statute applies only to the Federal Courts,
but each state can make a similar law for its own
courts, or in the absence of statute courts may
properly decide that errors are immaterial and
therefore not ground for reversal. It is the true
rule, and should be applied inflexibly in aid of the
171

REFORM OF LEGAL PROCEDURE

principle, "Interest rei publicae ut sit finis
litium." If the decision below is just it
should be sustained, and not reversed in order
that immaterial errors may be corrected with
the risk that in a new trial other like errors,
perhaps material, may be committed, and the
whole subject of the litigation be consumed by
the expense of determining not the rights of
the parties, but the ideally perfect method of
conducting a trial. Such a statute will not only
prevent many needless new trials, but it will
discourage appeals on technical grounds, it will
reduce the expense of Htigation to clients and
the expense of maintaining courts to the public,
it will reduce the congestion in the courts which
is a constant cause of delay, and it will increase
the confidence of the public in the administration
of justice.

But it may be said: "Can we trust the

appellate courts to decide whether an error has

or has not injuriously affected the substantial

rights of the parties," in other words, "Can we

172

DELAY IN APPELLATE COURTS

trust our highest courts to decide what is right
in a given case?" We must trust some one
to decide this question, and if we cannot trust-
the highest Court, whom can we trust? Every-
thing himian is f alUble, and no system can exclude
the possibiUty of error, but that measure of
practical justice which is all that any human
being can expect in a mortal world is amply
secured by such a rule as the proposed statute
prescribes, and it is infinitely less likely to result
in a denial of justice than the present practice.
It is a rule which demands good judges, but these
are always essential if justice is to be done under
any system.

You must have observed that for many of
the troubles which I have pointed out my remedy
has been increased power in the judges, and this
of course can only be given to an able, strong,
independent Bench. How important is this, and
how is it to be secured? The people of the
United States plume themselves on their sound
practical common sense, but there is no single
173

REFORM OF LEGAL PROCEDURE

matter in which they have so long and so persis-
tently displayed a lack of this quality as in dealing
with their judges. Our whole political structure
rests upon the assumption that the judiciary
shall have power to hold the balance between
the different departments of the government,
shall protect the legislature against usurpation
by the executive, shall defend the executive
against encroachment by the legislature, shall
maintain the right of every citizen against
invasion by any other, and shall shield a minority
of perhaps only one against oppression by the
majority, however large. It must hold the scales
of justice even between government and citizen,
between strong and weak. Yet to use the words
of Hamilton:

"From the nature of its functions it will
always be the least dangerous to the political
rights of the Constitution because it will be least
in a capacity to annoy or injure them. The
executive not only dispenses the honors, but
holds the sword of the community; the legislature
174

DELAY IN APPELLATE COURTS

not only commands the purse but prescribes the
rules by which the duties and rights of every
citizen are to be regulated; the judiciary on the
contrary has no influence over either the sword
or the purse, no direction of either the strength,
or of the wealth of the society, and can take no
active resolution whatever. It may truly be
said to have neither force nor will, but merely
judgment, and must ultimately depend upon the
aid of the executive arm for the efl&cacious
exercise even of this faculty."

A body of men upon whom such great respon-
sibihties are laid, and who can accomplish the
results expected of them only by the effect which is
produced upon the public mind by the excellence
of their judgments; who can only declare what
is just and in the long run must depend upon
the conviction which their declaration carries
for its influence, should be composed of the
ablest and wisest men that the country can
supply. There is nothing which is so important
to the state as a strong and independent Bench,
175

REFORM OF LEGAL PROCEDURE
there is nothing which costs so much as cheap
courts, nothing so dear as injustice.

The Courts sit to maintain and enforce the
law, — which is the well-considered will of the
State and the State needs and can afford the
best talent to support its will. The large organ-
izations, the great corporations, the men of
wealth, the most dangerous criminals, command
the services of the ablest lawyers. The courts
should stand between any unjust claims of such
persons and the community. The judges should
be able enough to recognize sophistry and see
through improper appeals, they should be learned
enough to know what the law requires in each
case, they should be strong enough to meet great
advocates on equal terms, and to protect poorer
clients and weaker lawyers against injustice.
Strength, abiUty, knowledge, and character are
essential to a good judge, and where they are
lacking we have error, tediously protracted
proceedings, frequent new trials, delay, and

expense both to suitors and the community.
176

DELAY IN APPELLATE COURTS

Where weak courts deal with criminals, crime
goes unpunished, lawlessness flourishes, men
lose their respect for the courts and resort to
lynch law, and civilization suffers. It is impos-
sible to overestimate the loss which bad courts
inflict on a community, and there is no better
test of a people's position in the scale of civiliza-
tion than the character of its judicial tribunals,
as will become apparent to you if you will com-
pare the methods by which justice is administered
in different nations.

But how are good judges to be obtained?
The public needs as good lawyers as any private
interest, and can afford as well to pay what is
needed to obtain them, but it cannot afford not
to have them or to be content with poor service.
The state comes into the market as a customer,
and finds itself in competition with other pur-
chasers. If it needs land it must pay the market
price, if it needs food or clothes for its soldiers
it must pay what others pay for like quantities
of the same things. The same inexorable law
177

REFORM OF LEGAL PROCEDURE

of supply and demand applies when it seeks the
service of men. It must pay an adequate price
or it will not succeed in the competition with
those who offer more. The price is not neces-
sarily all to be paid in money. There are many
men who are attracted to public oflBce by the
honor attached to it or by the prospect of assured
employment, and there are others who are
influenced by a sense of public duty and are
willing to make some patriotic sacrifice, but an
adequate salary is in the long run essential.
Lawyers are men, they have wives and children
and wish to give them the advantages of travel
and the pleasures of society. A judge has a
position to maintain, and the lawyer who is well
established in practice and happy in his home
and his prospects is loath to take the vow of
poverty, to deny his children what their com-
panions enjoy, to accept a position which carries
him sometimes for long periods away from
home to live in a poor hotel while he is holding
a term, to find himself cut off from the pleasant
178

DELAY IN APPELLATE COURTS

society to which he is accustomed and to a
certain extent isolated by his position and the
necessity of guarding against unjust suspicions;
in a word, to give up a free, interesting, busy,
prosperous life for one in which he is restricted
on every side. This is less true of the higher
than the lower judicial positions, for the honor
of the former is so great that men are willing
to sacrifice something to win them, but even
here the choice is restricted by the considerations
which I have pointed out. A judgeship should
be with us, as it always has been in England,
among the prizes of the profession which a
leader is glad to accept as the crown of a success-
ful career. Under present conditions it is a
place which a man of independent means, or a
man whose professional success has been limited
may wish to take, but which cannot be taken by
a successful lawyer without a sacrifice. I speak
from recent experience in endeavoring as one of
a committee to find men, who were fit to fill and
willing to accept a seat on the Bench. Man
179

REFORM OF LEGAL PROCEDURE

after man whom we thought fit refused, because
he feLt that he must save for wife and children,
and he could not do this on the Bench and live
comfortably without changing his methods.
Others dishked to give up their freedom, and
only a few felt able, or willing from a sense
of duty to make the sacrifice which everyone
felt that he must make in accepting the
appointment.

This was where the judges are appointed for
life. Where they are elected by the people for
shorter or longer terms, the difficulty of securing
good judges is enormously increased. In the
first place the people at large cannot judge as to
certain elements of fitness, as, for example, the
candidate's knowledge of the law. If a man is a
candidate for re-election his service during his
previous term or terms may be a guide, but not
so when he is originally selected. Many quali-
ties make a man popular with the voters which
unfit him for the Bench, and the chance of a
wise selection is small, especially in communities
i8o

DELAY IN APPELLATE COURTS

where men of different races and perhaps differ-
ent religions are more anxious to have these
represented on the Bench than to secure the best
possible judges.

Again we find that in New York, for example, a
candidate is expected to contribute a year's salary
or a considerable part of it, to the campaign
fund of the party which supports him. There
must be many men who would make admirable
judges, but who would absolutely refuse to buy
a nomination or election in this way, and many
others who will not expose themselves to the
disagreeable attacks that are made during a
campaign upon all candidates. The best men
will not seek judicial office on such terms. To
enter a political contest for nomination or election,
and especially to pay for judicial office, is an im-
possibihty for many men, and under the elective
system men of this class become ineligible.

Again, the judge whose election is approaching
and who dreads defeat must find it very difficult,
indeed often impossible, to decide against a
i8i

REFORM OF LEGAL PROCEDURE

popular litigant or a la-v^yer influential in politics,
or to set aside a law which the people approve.
Human nature is weak, and a good judge must
be strong enough to stand by his own convictions
of justice and law against any and all attacks,
whether from coimsel in court or pubHc opinion
without. We need judges who love justice
more than they love their offices, and we do
wTong when we expose them to temptations
which human nature finds it hard to resist.
When, as now, it is proposed that the people
may recall them before their term expires, it is
inevitable that with the axe suspended over their
judicial necks they should find it much harder to
decide right, — much easier to swim with the
popular current. The umpire at a baseball
match has at least one side to support his deci-
sion, but the judge who holds a popular law
unconstitutional or makes some other unpopular
decision may well have no friends. The
Massachusetts Bill of Rights states the true
rule in these words:

182

DELAY IN APPELLATE COURTS
*'It is essential to the preservation of the
rights of every individual, his life, liberty, prop-
erty, and character, that there be an impartial
interpretation of the laws and administration of
justice. It is the right of every citizen to be
tried by judges as free, impartial, and independent
as the lot of humanity will admit. It is therefore
not only the best policy, but for the security of
the rights of the people and of every citizen, that
the judges of the Supreme Judicial Court should
hold their offices as long as they behave them-
selves well, and that they should have honorable
salaries, ascertained and established by existing
laws."

We make the entrance to the Bench difficult
by compelling the candidate too often to seek
and pay for election at the hands of the people.
We make his tenure uncertain. We show that
we do not trust him by Umiting his powers in
every way, and we pay him a grossly inadequate
salary. We are a business people; we know
that in private life we could not get a good
183

REFORM OF LEGAL PROCEDURE

foreman on these terms, and we wonder that
our courts are choked and the administration of
the law expensive and uncertain. What common
sense!

A Kentucky judge said to the Bar Association
of that state last year:

" Our jealousy of the judge is such that we have
formulated a set of hard and fast rules for his
guidance — absolute rules of evidence, strict
reviews of every act, word, or ruUng by the Court
of Appeals. _JV© -have devised special machinery
to eUminate the personality of the judge. At
the same time we have given increased rein to
the advocate as well as to the shyster, till now
the judge must daily 'sit hke a knot in a log'
and listen to speeches to the jury — speeches
that are the disgrace of our civilization — and
daily watch practices which he is powerless to
prevent and which are recognized by all the
community as void of all semblance of morality.
To make matters worse, we have made our
judges — all of them — mere puppets of political
184

DELAY IN APPELLATE COURTS

parties, so that it is impossible for them or any
of them to be independent as I know everyone of
our judges would wish to be."

Such a picture does not make the Bench
attractive.

Think for a moment that we spend out of a
bilhon dollars appropriated for the annual
expenses of the nation seventy-two per cent, for
war, past and future, and then compare this
with the beggarly sum allowed for the expenses
of the Federal Courts. Millions of dollars for
force that we hope never to use, and a few
thousands for justice that we need every day of
our lives! I hardly know which costs us most,
the expensive battleships or the cheap courts.
If we doubled the salary of every judge on the
Bench the cost would be trifling as compared
with the cost of a Dreadnought, yet the dangers
to which poor courts expose us are far greater
and more imminent than any from which our
fleet protects us. Yet we boast of our common
sense.

i8S

REFORM OF LEGAL PROCEDURE

We have been far more fortunate than we
deserve in securing excellent judges, and what I
say is not intended to reflect in any way upon
their ability or their character, but to point out
that we do not treat them fairly. Our system is
wrong, and we cannot long expect that it will
yield good results. Nay, it is certain that it will
yield steadily worse results if it is continued.

The full argument against an elective judiciary
has been presented so often that I will not repeat
it, nor have I time to say more than I have on
the subject. The difference between a proper
method of securing judges and the method which
we employ is shown by a single fact. In England
the ablest, strongest, and most experienced
lawyers are placed on the Bench, and the result
is that EngUsh justice is proverbial. In many
parts of our country yoimg men with Httle
experience obtain judgeships as a step towards
practice, intending to resign and commence prac-
tice with the prestige which is conferred by
the much abused title "judge." In England
i86

DELAY IN APPELLATE COURTS

the fittest, and in the communities of which I
speak perhaps the imfittest, administer justice.
"By their fruits ye shall know them."

The profession must combine to uphold the
power and dignity of the Bench, and to make
judicial positions attractive to the ablest lawyers
in every jurisdiction. Unless this is done, the
grave defects in our system will remain imchanged.

I have discussed with you now the causes of
delay and have suggested some remedies. Let
me now deal with something which is not a
remedy. It is constantly urged that in order to
overcome the delay in the courts we should have
more judges and so more courts,,-— My remedy is
better courts with greater pow^y. The usual
remedy is more courts with less powers. Let
me call your attention to some figures taken
for convenience from my own state, but which
illustrate conditions in many states. In 1874, we
had in Massachusetts ten judges of the Superior
Court. We have now twenty-five. The popu-
lation has not quite doubled. If we compare
187

REFORM OF LEGAL PROCEDURE

Massachusetts with England, we find that in 1900
Massachusetts had a population of 2,800,000
people; that in 1901 England had a population
of 32,527,000, between 11 and 12 times as great.
In the higher courts of England there are 34
judges. In the higher courts of Massachusetts
there are 51 judges. If we take the County-
Courts in England and the corresponding courts
in Massachusetts we find that England has in all
93 judges, and Massachusetts has 144 judges.
Dealing only with the higher courts, England
has a judge to each 956,700 people; Massachu-
setts has a judge for every 56,968. If we take all
the judges, England has a judge for each 349,762,
Massachusetts a judge for each 19,520 persons.
To put it in another way, if England adopted
the Massachusetts ratio, and had as many-
judges as there are in Massachusetts, England
would have 570 higher court judges, instead
of 34, nearly twenty times as many, and she
would have 1666 judges in all instead of 93. This
comparison is to a very sHght exteht misleading,
188

DELAY IN APPELLATE COURTS

because whenever you have a separate judicial
system, you must have appellate courts of several
judges no matter what the population. But the
EngUsh Appellate Court sits with fewer judges
than the Supreme Court of Massachusetts.

Some years ago I was told that there were fewer
juries sitting in London than in Boston. There
were, as I remember it, in October three special
juries and three ordinary juries, in all six, sitting
in London with its enormous population. We
had in Boston some eight or ten juries sitting at
the same time, counting the juries in the Federal
courts. If you go into our trial courts, you find
on the trial list for the day an enormous number
of cases. If you go into an English court, you
find three, but those three are to be tried on that
day, and, as a rvile, they are tried. Yet, with
this smaller force, fewer juries and fewer judges,
they do the work of 32,000,000 of people, which
shows that the character and not the number of
the courts is the essential factor.

In Chicago a judge disposes of nearly 1000
189

REFORM OF LEGAL PROCEDURE

cases a year; in England each judge disposes of
more than 3500 cases a year, yet EngHsh justice
is satisfactory. In 1902, out of more than 46,000
cases disposed of by the coimty courts, there were
only 140 appeals. Out of 689 cases heard on
appeal in 1902, 106 were disposed of in two
weeks after the hearing; loi in four weeks. The
average delay was less than six months. Many
were decided on the spot. Out of 555 cases
which were heard on appeal in 1904, the judgment
was reserved in only 50.

In Montana, \vith its 240,000 people, the
Supreme Court was lately two years in arrears.
In England 550 cases were heard on appeal in
1904, and of these 500 were decided before the
counsel left the court room. It is clear that we
do not need more judges, and it is worth while
to remember, when this remedy is suggested, that
more judges do not mean less delay. As in
other things quality not quantity tells. --^

It is also worth while to bear in mind that
increasing the number of judges of the Appellate
190

DELAY IN APPELLATE COURTS

Court does not always conduce to better results.
It takes longer for seven or nine men to agree on
a proposition of law than it does for three, and
in reaching the result, each takes less responsi-
bility than if he was one of three. The larger the
tribunal, the longer time it takes to reach a
decision, the greater the chance of disagreement
without improving the result. We do not want
more men upon the Bench. We want a better
system, and we want the best men.

It is also suggested that imanimity should no
longer be required from a jury, and that a
majority should be allowed to render the verdict.
This suggestion is founded on an exaggerated
impression as to the frequency of disagreements.
In the year ending June 30, 1909, out of 893 cases
tried in Boston the jury agreed in all but 31,
of which 30 were in tort cases. Unanimity
insures consideration. It compels the jury to
listen and gives the wisest man a chance to make
himself heard which he might not otherwise have.
It also gives an obstinate fool an equal chance,
191

REFORM OF LEGAL PROCEDURE

and if disagreements were frequent the change
might be necessary. As it is, the advantages
secured by the requirement outweigh the disad-
vantages. There may be a few less verdicts, but
as a whole the verdicts are better. Very little
of the law's delay is chargeable to jurymen, who
agree oftener than the judges of appellate
courts.

192

CRIMINAL PROCEDURE. THE LAWYER'S
RESPONSIBILITIES FOR LEGISLATION

^ I ^HERE is no part of its work in which
-*- the law fails so absolutely and so ludi-
crously as in the conviction and punishment of
criminals, and its failures in this respect en-
danger the whole foundation of society. As our
population increases and becomes more varied
in character crime appears to increase, and it
becomes more diflficult to discover criminals of
the lower type. An embezzler who has moved
in high financial circles, or an identified mur-
derer like Dr. Crippen, will indeed find it more
difficult to escape, but where a crime is com-
mitted by some person unknown, where the
motive is robbery and there is no antecedent
relation between the criminal and his victim,
detection is very difficult. Burglars and villains
193

REFORM OF LEGAL PROCEDURE

of like kinds are no longer restrained by national
boundaries. The men who robbed a jeweller's
shop in Boston some years ago were found last
week in an Austrian prison. Misgovernment
in Russia supplied the criminals who some years
ago robbed and murdered a cashier in a crowded
London neighborhood, and a year ago men of
the same nationality committed the identical
crime in Massachusetts. The complicity of the
police with criminals of certain classes in at
least some of our large cities, the difficulty of
proving certain crimes Uke bribery, the weak
sentimentality of the community, which, when
a horrible crime is committed, shrieks for the
detection and punishment of the perpetrator,
and when he is found seeks to find excuses for
his act and reasons for his pardon, all weaken
the restraints which the law is intended to im-
pose upon the depraved members of society.
To all these difiiculties our courts, by their ad-
ministration of the law, and our whole system
of criminal procedure add as many more.
194

LAWYER'S RESPONSIBILITIES

The figures are startling. Judge Holt of
New York, in an address last June, estimated that
there were 100,000 men who had taken part in
lynchings, and over 150,000 who had participated
in strike riots resulting in homicide and injury to
persons and property, who had gone unpunished.
The Chicago " Tribune '' gives figures which show
that from 1887 to igo8, inclusive, the number
of homicides committed in the United States
increased from 1266 to nearly 9000. In fifteen
years the total number was 133,192, while during
the four years of our Civil War the whole number
of men on the Union side who were killed or died
of their wounds was 110,070. In Louisville,
Kentucky, during the year ending August ist
last, forty-seven homicides were committed and
there was not one legal execution, while during
the year 1909 in the city of London with its
enormous population there were only nineteen
cases of murder. Of these murderers five
committed suicide, four were convicted and
executed, four were found to be insane, one
195

REFORM OF LEGAL PROCEDURE

died while waiting trial, and one killed himself
in jail.

President Andrew D. White says that in our
whole country during the same year there
were only seventy convictions in capital cases,
and lays this result "to the chicanery, pettifog-
gery, and folly in the defence of criminals."
"The murder rate in the United States is from
ten to twenty times greater than the murder
rate of the British Empire and other northwestern
European countries."

The New Bedford "Standard" quotes Dr.
White's statement and adds:

"Dr. White speaks none too strongly. That
attitude toward crime which makes of the
criminal nothing more than an "unfortunate"
is responsible for very much of the criminality of
to-day. Under its influence a young tough who
sets fire to a dwelUng house is now enumerated
as a "deUnquent," a word selected for fear that
any harsher term would hurt his feelings. When
he gets a Uttle older, and repeats his act of
196

LAWYER'S RESPONSIBILITIES

arson, immediately uprises a phalanx of the
soft-hearted to proclaim him "a victim of
society's neglect," and he very Ukely escapes
any serious punishment because the prosecuting
officer is wilhng to accept an aUenist's assurance
that he is a "pyro-maniac." If anybody suggests
at any stage of his career that he has some
responsibility of his own, a chorus of strident
voices joins in the chant that our weaker breth-
ren should be the object of our considerate pity."
The object of criminal law is the detection and
punishment of crime, and its strict enforcement
is necessary, not only to protect the community
against the criminals, but also against itself.
When a crime is committed the feeling that
somebody should be punished is instantly felt
by all within the neighborhood affected. It is a
feeling compounded of j-evenge, fear, and a
sense of justice, and is most intense at the first
news of the crime. If the neighborhood feels
that the law will punish surely and promptly,
it will let the law take its course. If it feels
197

REFORM OF LEGAL PROCEDURE

that the law will let the guilty man escape, it is
prone to take the law into its own hands, and
punish the person whom it suspects, with or
without suflficient evidence of his guilt.

The contrast between the feeUng of the com-
munity outside and the attitude of juries within
the courts is thus stated in the Chicago
"Advance" :

"But the general public cannot be persuaded
that making murder easy is good for a community.
During the editor's recent visit to the South he
was surprised to find how much the public is
disturbed by the failure to punish murderers.
In Birmingham it was said that murderers
slipped through the courts with ease. A jury
had just cleared a man for killing the proprietor
of the hotel at which the editor stopped. It
seemed a wanton crime, but the jury took an
easy view of the matter. In Florida there was
similar feeling. Men killed their fellow-men,
and between juries, shrewd lawyers, and the law's
loopholes and delays, they were out in the open
198

LAWYER'S RESPONSIBILITIES

again as if nothing much had happened. About
the only Une drawn with firmness was on color.
On the same day that it was made so trifling
a matter in Nashville for a colonel to assassinate
a former United States senator, the citizens of
Meridian, Miss., lynched, shot, hanged, and
burnt a negro for killing a white man. When a
negro kills a man it is a fiendish crime, but when
a colonel kills a distinguished citizen it is an
affair between gentlemen, and, according to the
Tennessee governor's view of the matter, it is a
piece of impudence for the courts, lower or higher,
to try to make it embarrassing to the chief
actor in the tragedy."

Well does President Eliot say:

"The defenses of society against criminals
have broken down. The impunity with which
crimes of violence are committed is a disgrace to
the country."

The inevitable result is lynch law with all its
disastrous effects on society, the killing of inno-
cent persons without trial, the inhuman methods
199

REFORM OF LEGAL PROCEDURE

often employed, the brutalizing effect on per-
petrators and spectators, and the destruction
of all real respect for the law which is the founda-
tion of civilized society. All these consequences
flow directly from the lax administration of
criminal law, and where courts cannot protect
the innocent and punish the guilty, private war
and social disorganization are near.

This is not an exaggerated picture. You have
only to think of the brutal lynchings in the South
and North, of the night riders in Kentucky where
neighbor killed neighbor, where men burned each
others' houses, and visited on each other every
kind of outrage because they differed as to the
terms upon which, or the customers to which,
they should sell their tobacco; the labor war in
Colorado, and Hke illustrations in different
parts of the country to see that I speak well
within bounds. "Sooner or later," as a Southern
writer says, *'the community which tolerates
mob law will feel the violence of some new form
of lawlessness."

200

LAWYER'S RESPONSIBILITIES

There is no real civilization, and as Secretary
Dickinson said: "There can be no general and
steady economic development where there is a
general non-enforcement of law," and the
inevitable result may be gathered from this
statement made three days after the Atlanta
riot in 1906 by Charles T. Hopkins, a member of
the Chamber of Commerce, and a prominent
Atlanta business man:

"Saturday evening at eight o'clock, the credit
of Atlanta was good for any number of millions
of dollars in New York or Boston, or any financial
center; to-day we couldn't borrow fifty cents. The
reputation we have been building up so arduously
for years has been swept away in two short
hours, not by men who have made and make
Atlanta, not by men who represent the character
and strength of our city, but by hoodlums,
understrappers, and white criminals."

Yet how completely the community accepts
lawless methods, unconscious of the danger, may
be gathered from the following:
201

REFORM OF LEGAL PROCEDURE

A certain newspaper correspondent ventured
to describe a recent Mississippi mob as composed
of ruflQans. Whereupon Tax Assessor Miller of
Concordia Parish, La., which is just across the
river from the scene of the lynching, sharply-
rebuked him in the following marvelous letter:

"The lynching of Elmo Curl at Mastodon,
Miss., last night, was a most orderly affair, con-
ducted by the bankers, lawyers, farmers, and
merchants of that county. The best people of
the county, as good as there are anywhere, simply
met there and hanged Curl without a sign of
rowdyism. There was no drinking, no shooting,
no yelling, and not even any loud talking. All
of the best people of that section took part, and
I have never seen a more orderly assemblage
anywhere."
' "" - To accomplish its purpose, criminal procedure
should be simple, prompt, and effectual. The
guilty should feel that the arm of the law is sure
and strong. To-day the law as administered
throws aroimd the criminal a protecting wall
202

LAWYER'S RESPONSIBILITIES

which may have been necessary' when the power of
the English crown pressed despotically upon the
subject, but which is wholly unnecessary to-day.
It is the community that now needs protection
against the criminal, not the innocent man who
must be saved from unjust persecution. To-day
it is said with a certain bitter truth that the only
man whose life is safe is he who has been con-
victed of murder.

What are the difficulties? The detection and
arrest of the criminal are for the police, and with
the diflSculties which beset these the courts have
little to do. We will assume that the accused
has been caught and the evidence laid before the
grand jury. Their first step is to find an indict-
ment, and to this the defendant is required to
plead.

Now the whole object of an indictment is to
inform the court, the jury, and the prisoner of
what the charge against the prisoner is. As a
rule no one knows so well as the accused e.xactly
what he has done, and what the indictment
203

REFORM OF LEGAL PROCEDURE

means. There is no reason why the indictment
should not state the charge in the simplest and
most direct language, as for example, why an
indictment for miurder should not be in as few
words as the following:

"The grand jurors charge that A. on the ist
day of March at Boston in the County of Suffolk
did commit murder by killing B."

A form substantially like this is now used in
England and her colonies, and there is no crime
which cannot be charged with equal brevity.
Such an indictment informs the accused of exactly
the charge against him, and accomplishes every
purpose of an indictment. If it is insuflScient
and he wants further information in any case,
he can be given the right to move for specifica-
tions, and in a proper case the Court would
grant them, or the prosecution should be allowed
to amend, but whenever the jury is impanelled
all questions as to the nature of the charge should
be regarded as finally settled.

Under the practice which now prevails almost
204

LAWYER'S RESPONSIBILITIES

-£Yerywhere in this country, the indictment is
used as a trap for the prosecution and a bul-
wark for the defence. The ingenuity of the
State's attorney is taxed to the utmost in the
effort to be sure that his indictment complies
with every technicality, while the defendant's
counsel exerts every faculty to find a flaw in
his opponent's statement, so that instead of try-
ing the guilt or innocence of the prisoner, the
trial too frequently is reduced to a question as
to the necessity of a few absurd words in an
indictment. The so-called "flaw in the indict-
ment" is uniformly the resort of a convicted
criminal. If the trial ends in an acquittal, either
by order of the Court or verdict of the jury,
the prosecution cannot appeal, since the defend-
ant cannot twice be placed in jeopardy. It is
only after a trial in which all the evidence has
been sifted, and the question of guilt or inno-
cence thoroughly argued, a trial in which the
defendant has known exactly what he was
charged with, and where the verdict has been
205

REFORM OF LEGAL PROCEDURE

so clearly right that either the defendant's
counsel has not asked the trial court to set it
aside, or the motion has been made and denied,
that the Appellate Court is asked to reverse
the judgment, not because the defendant is not
guilty, and not because he has not been fairly
tried, but because an indictment sufficient to
inform everybody of the charge has or has not
contained a few idle words. Too often, though
no one has been prejudiced by the omission,
the Court lets the guilty rascal go, not because
justice requires it, but for no better reason than
to preserve a particular fashion of speech.

Do you want examples? Let me give you
some from American courts within a few years.
One man was con\dcted of murder in the first
degree, and the verdict was set aside because
the foreman spelled "first" "fust." In another
case a convicted murderer was given a new trial
because "breast" was spelled in the indictment
without the "a." Another murderer was given
a new trial, because, though the indictment al-
206

LAWYER'S RESPONSIBILITIES

leged that he stabbed a man who did "instantly
die," the words "then and there" were not in-
serted before "instantly," as if he could have
died instantly without dying "then and there,"
or as if it made any difference when or where he
died if he was killed by the accused. Again, an
indictment for rape was held defective because
it concluded "against peace and dignity of the
State" instead of "against the peace and dignity
of the State," and a con\action of murder was
set aside because in the name of the murdered
man, Patrick Fitz-Patrick, the secgjid-^patrick"
was spelled with a snial

Verdicts have been set aside because the record
did not show that the defendant pleaded not
guilty, and again because it did not show that
he was present at the trial. In the first case he
either pleaded guilty, not guilty, or nolo contetidere,
or else stood silent, in which case the Court
would have entered a plea of "not guilty," and
he had been tried and convicted, so that what-
ever his plea, it had become of no possible conse-
207

REFORM OF LEGAL' PROCEDURE

quence. In the second, if he had not been present
at the trial his counsel might have been trusted
to make the point, and the record would have
shown his absence. In both cases a sUght respect
for the rule "Omnia praesumuntur rite acta"
would have saved the profession the mortifica-
tion of admitting that we have courts capable
of making such absurd decisions in favor of
convicted murderers.

I cannot refrain from giving one more instance
of fatuity where an indictment charged that B.
killed D. "by firing a Colt's revolver loaded with
gunpowder and leaden balls, which he, B., then
and there had and held in his hands." The
defendant was convicted, but the Court set the
conviction aside because the indictment did not
allege that the pistol was fired at D. "It may
have been fired into the air, or at a flock of birds.
Nor can we see that D. was hit; he may have
been a feeble man who died of fright at the
discharge of the pistol for anything the indict-
ment contains!" If either of these things had
208

LAWYER'S RESPONSIBILITIES

been true, of course the defendant would never
have been convicted, and "the law is the per-
fection of human reason." Can you wonder that
it falls into disrepute when it is so interpreted ?
How often do the most important prosecutions
fail from such absurdities. A flaw in the indict-
ment set free the convicted mayor of Minneapolis
after a full and fair trial. Similar defences
proved fatal to most of the important convic-
tions won by Governor Folk at St. Louis, when
men who had betrayed their fellow citizens by
selling franchises and contracts, bribers and
bribed alike, were relieved from the consequences
of their crimes by the highest court of Missouri.
One of the most conspicuous among these rascals
said, after he had been sentenced to a term in
the penitentiary: "The Courts will reverse all
Folk's cases, and when Folk's term expires we
will get off and the fellows that have peached
will go to jail!" He knew whereof he spoke.
How long has it taken in San Francisco to get
Abe Ruef, a conspicuous rascal who had pleaded
209

REFORM OF LEGAL PROCEDURE

guilty, into the prison cell which he should long
ago have occupied? And when in the Ught of
plain common sense one asks why these decisions
are made, it is impossible to imagine a reason
at once honest and sensible. It we cannot alter
the law so as to make such mockeries of justice
impossible, our profession deserves the contempt
of the community. One remedy for this diffi-
culty is to be found in statutes prescribing
simple forms of indictment, and giving the Court
power to afford the defendant such information
as is necessary to relieve any doubts as to the
xrime charged, if such doubt exists.

Let us take another step, and assuming that
the indictment is correct, proceed to the trial.
In the first place a jury must be impanelled, and
the Court too often finds the simple task of
selecting twelve impartial men almost beyond
its powers. In New York, when Thaw was
tried, in Tennessee when the murderers of
Senator Carmack were set at the bar, weeks
elapsed in trying jurymen. Ninety-one days

2IO

LAWYER'S RESPONSIBILITIES

were consumed in the selection of a jury to try
Calhoun in San Francisco. To get a jury who
should try one Shea, 9425 jurymen were sum-
moned, of whom 4821 were examined, the cost
in jury fees alone being more than $13,000.
In England and in most New England states
this difl&culty does not arise, and the impanelling
of a jury is accompUshed easily. At the trial
of Dr. Crippen the jury was selected in eight
minutes, and only three jurors were challenged,
yet the Crippen case, the evidence, the flight and
capture of the accused had occupied columns in
every daily newspaper for weeks. One English
judge stated that in fourteen years he had known
only one challenge.

Where a defendant is allowed to challenge any-
one who has got an impression from reading the
newspaper and has moreover many peremptory
challenges, the process is a travesty of justice.
This is a country where the newspapers live
largely by printing full narratives of crime with
every suggestion bearing on the guilt or inno-
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cence of each suspected person, that the ingenu-
ity of a reporter or editor can supply. Day
after day, suspicions, theories, and arguments
are spread before the public, and as in most
communities it would be very difficult to find
an intelligent man who does not read some
newspaper, it is naturally difficult to find a
juryman who has not some impression. We all
read such accounts more or less carelessly, but
our opinions, if any, are not lasting, and are
easily corrected by evidence. The counsel who
wishes to keep an intelligent man off the jury,
the juror who is glad to be excused from the
disagreeable task of trying a man for his life or
for some other felony, unite to magnify the
reasons for not serving, and man after man who
could sit with perfect propriety and render a just
verdict is excused from service. The result can-
not fail to be a poor jury and generally an un-
satisfactory result. Why should we continue to
countenance a system, which aims to get a weak
jury, and make the enforcement of the law more

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LAWYER'S RESPONSIBILITIES

difficult. Peremptory challenges should be few,
and judges should keep any man on the jury
who is otherwise quahfied and who has not a
decided opinion as to the guilt or innocence of
the accused. We should use some of our boasted
common sense, and no longer tolerate the ab-
surdities which make our criminal trials so
often mere mockeries.

Something might also be said in favor of pre-
venting the press from trying all suspected persons
in their columns, as is now done. It is a flagrant
abuse and a great impediment to justice. The
newspapers might well be forbidden to publish
anything concerning a case that is actually in
court, except accurate reports of proceedings in
court. After the Crippen case was tried, the
publisher of a newspaper was heavily fined for
publishing a false statement that Crippen had
confessed, and if this precedent were followed
here the newspaper statements which now em-
barrass the course of justice might be less
common.

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Let us now suppose that the jury has been
impanelled, and proceed with the trial. Here
again we find every precaution taken to protect
the guilty.

In the first place the Constitution provides
that "no person shall be compelled in any criminal
case to be a witness against himself." Originally
the criminal could not testify at all, but statutes
have given him this right, and have coupled it
with the provision that if he elects not to take
the stand no argument shall be made or inference
drawn against him on account of his refusal.

The practical absurdity of this provision is
illustrated by the charge given by a very able
judge in Massachusetts, who was asked to in-
struct the jury that no inference could be drawn
from the fact that the defendant did not take
the stand.

"Yes," he said, "gentlemen, that's the law and
we're all bound to obey the law. If -the legisla-
ture were to pass a law that when you walk
down State Street and see the shadow of the
214

LAWYER'S RESPONSIBILITIES

old State House thro\vn across the street, you
are not to infer that the sun is shining, you'd
be bound to obey it, gentlemen, and so you're
bound to obey this law!"

Another judge of our state said with much
truth, "When the common law undertook to
find a fact it began by excluding from the room
all the persons who would be likely to have any
knowledge of the subject," to wit, the parties to
the suit and all persons interested in the question
to be tried. The rule which I am discussing is
a conspicuous example of this absurd principle.
The accused of all men in the world knows better
than any one else whether he is guilty or not,
and if the object of the criminal law is to detect
and punish the guilty, why should he not be
asked to tell what he knows? If he criminates
himself, can there be better evidence of guilt?
Why shouldn't he criminate himself? Eye-wit-
nesses may be mistaken, circimistantial evidence
may mislead, but the testimony of the accused
against himself can be relied upon in any but
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REFORM OF LEGAL PROCEDURE

the most exceptional cases. One can imagine
circumstances in which the accused may say
what he does not mean, or may criminate him-
self vmjustly. True, and we can cite cases of
mistaken identity, cases where innocent men
have been convicted upon circumstantial evi-
dence, nay even cases where the defendant's
own confessions have proved false, but we do
not on that account exclude the evidence of eye-
witnesses, the admissions of the accused, or cir-
cumstantial evidence. Nothing human is perfect,
no testimony is infallible, but of all evidence
which tends to establish the defendant's guilt,
his own is least likely to be imreliable. He may,
and in most cases does lie to save himself, but
never if he knows it to accuse himself.

The rule in question, originally adopted to save
the subject from the tyrannical power of the
Crown when men were persecuted for religious
opinions, for pohtical offences, for writing or
speaking the truth, is preserved, though the
reason for it has long disappeared. The danger
216

LAWYER'S RESPONSIBILITIES

now is, not that innocent men will be convicted,
but that guilty men will go unwhipped of justice.
Not only do the Courts protect the criminal,
but the commiuiity watches the trial with jealous
eyes, and if the murderer or other criminal is
convicted, no matter how justly, the news-
papers are filled with misrepresentations of the
evidence and with appeals to sympathy! Peti-
tions for pardon are circulated and generally
signed, some sensational newspaper takes up the
convict's cause and attacks the Court which
convicted him, until, as Mr. Dooley puts it: "th'
insurance comp'nies insure his Hfe for the lowest
known premyum." While this is the attitude
of the community, there is no danger that what
it is now the fashion to call "a gruelling cross-
examination," or a brow-beating judge, will
confuse an innocent man and make him admit
guilt. Any such methods would surely raise
popular sympathy and the offender would be
visited with public reprobation. These bug-
bears need not disturb us. It is the conmiunity
217

REFORM OF LEGAL PROCEDURE

and not the criminal that now needs protection,
and if the community is to be protected it can
only be by the prompt and sure administration
of justice. It is the certainty rather than the
severity of punishment that is needed to repress
crime.

In France and Germany, for many years, the
practice of having the accused interrogated in
the presence of the jury by the judge who pre-
sides at his trial has been pursued, and while
occasional scenes occur which impress us who are
accustomed to English methods as unpleasant,
it is always surprising to see how lenient the
juries are, and how light are the penalties for
serious offences. The Germans and French are
as little likely to tolerate a system which is
unjust to innocent men as are English and Ameri-
cans, and if their methods did not work well in
practice, they would be changed. They are
vastly more contented than are we, and the
worst that happens there is not so bad as the
trial of Thaw in our greatest city.
218

LAWYER'S RESPONSIBILITIES

Especially does this rule operate to defeat all
attempts to detect and punish the crime which
at present is at once most common and most
dangerous to our institutions — the crime of
bribery. Since it is an offence to give as well
as to take a bribe, both parties to the crime are
protected from question, and as bribery is rarely
committed in the presence of innocent bystanders,
the criminals cannot be convicted unless they
confess their guilt. In these circumstances they
are as safe as the cardinals who, under the ecclesi-
astical law, could only be convicted of incontinence
by the testimony of nine eye-witnesses. The
recent disclosures as to the methods pursued in
the New York legislature, the revelation of
corruption in San Francisco and Pittsburg, the
wholesale purchase of votes in Adams County,
Ohio, the bribery attending the election of Senator
Lorimer in Illinois, are only a few of many things
that might be cited to show how this poison is
corrupting our whole body politic. The decision
of the Senate — that the votes admittedly bought
219

REFORM OF LEGAL PROCEDURE

in Illinois were not necessary to elect Lorimer,
and that he knew nothing of the purchase though
he did not take the stand before the investigating
committee, shows the attitude toward such
offences of men who should be, and unhappily
too often are, the leaders of the community.
Those who supported Lorimer in fact proceeded
on the theory that the severely practical politi-
cians of Illinois threw away money by buying
unnecessary votes, and that the person most
interested in the issue of a sharp conflict, him-
self a very practical man, was kept profoundly
ignorant of what his supporters did, and they
reached their conclusion when they were charged
with the duty of keeping the Senate above
suspicion. Such decisions make one think of
Demosthenes, and wonder if our case does not
resemble that of his native country when he
said:

"What is it that has ruined Greece? Envy,
when a man gets a bribe; laughter, if he confesses
it; mercy to the convicted; hatred of those who
220

LAWYER'S RESPONSIBILITIES

denounce the crime, — all the usual accompani-
ments of corruption."

If the tide of corruption is to be stayed, we
must cease to protect the criminal, we must
break down the shield of silence behind which
he now hides from justice. The Supreme Court
of the United States has ruled that under a
statute properly drawn to protect him from
prosecution and punishment a man may be com-
pelled to give evidence even though it criminates
himself. We can at least pass statutes which
extend this rule to cases of bribery, and at least
convict half the criminals at the expense of
letting the other half go, on the principle that
"half a loaf is better than no bread." But why
should a sensible community let half its most
dangerous enemies go? We contemplate with
great equanimity the prospect of destroying
thousands of innocent men in war, but we shudder
at the thought of asking a guilty man the ques-
tions which will prove his guilt.

A most important step towards the administra-

221

REFORM OF LEGAL PROCEDURE

tion of justice will be taken when by proper
changes in the Constitution and statutes the
accused can be compelled to testify, and there
is no good reason why we should not adopt to
this extent the European procedure. We can
at least try the experiment, and if it fails we can
revert to our present practice. We can at least,
without changing the Constitution, permit his
silence when he might speak to be used as evi-
dence of guilt. We do it now if his silence is
anywhere else than in Court, for the rule is well
settled that the silence of the accused, when that
is said in his presence to which if innocent he
would naturally reply, may be treated as evidence
against him. His silence in the pohce station is
evidence of guilt, his silence in court is nothing.
The innocent man may be silent in jail from
ignorance of his rights, from fear of his guardians,
or perhaps from inadvertence. In court he has
the judge and his counsel to protect him, and
what is done is in the full light of day. If inno-
cent he has every reason to say so. There is

222

LAWYER'S RESPONSIBILITIES

no chance of inattention. If then he keeps
silent how absurd to ignore that silence. To
every sensible man it is and must be convincing.

In court our practice is to treat the law as a
game in which the defendant must be given
every chance to escape, and the task of the
prosecution be made as hard as possible, but
except in court our practice is to treat the
accused as a guilty man without rights. All
over the country the method of dealing with an
accused person, popularly called "the third
degree," is practised without provoking any
public criticism. We read that men are placed
in superheated cells, that they are kept from
sleeping by relays of officers who talk to them and
ask them questions without ceasing; we are
led to suspect other forms of torture, all employed
to make the defendant criminate himself.

A recent writer in "The Nation" gives an
instance which I quote from his letter:

"A young man was recently tortured by the
police of one of our American cities into signing
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REFORM OF LEGAL PROCEDURE

a written confession that he had poisoned his
wife and six-year-old daughter. Afterwards the
cause of their death was, by conclusive and unim-
peached evidence . . . proved ... to have been
the inhalation of gas, given off from a defective
gas water-heater. He, too, was seriously poi-
soned by the gas, was rendered unconscious by
it, and was locked in a hospital for treatment
and poUce surveillance. Upon gaining semi-
consciousness, he was carried from his hospital
bed to the municipal chamber of torture. In
his weakened physical and distressed mental
condition, he was subjected to such bodily vio-
lence at the hands of the police for the purpose
of procuring from him this confession, that his
body bore the marks of it for several weeks. He
was indicted for murder solely upon that con-
fession, which was the only evidence against
him. He spent three months of his life in jail
waiting for the trial by which he was not
merely found not guilty, but judicially proved
innocent."

224

LAWYER'S RESPONSIBILITIES
From another newspaper I take the following
account of how a Chinaman accused of murder-
ing a young woman was treated:

"Like a wild animal at bay, the Chinese was
placed in a chair where he had to face the com-
bined enemy. All the preparations were carried
out with a methodical quietness and dehberation
most calculated to wear on the nerves of a man
who knows he is suspected and does not know
what is in the minds of the men who are planning
a combined move against him. . . The little
Chinaman, his eyes bloodshot from exhaustion
and lost sleep, was planted in a big chair while
big Carey, captain of detectives, and Assistant
District Attorney Theodore H. Ward stood in
front of him driving their questions home. . .
Attorney Ward, without a moment of warning,
turned on the Celestial, and standing above him
and pointing an accusing finger in his face, almost
shouted: 'You killed Elsie Sigel.'"

"You could hear the roar of Carey's voice as
he bellowed some emphatic charge, the quieter
225

REFORM OF LEGAL PROCEDURE

monotone of Ward's as he prodded the China-
man persistently, determinedly, and the falsetto
squeak of Chung Sin when they stung him, as
they did every now and then, to hysterical rage.
. . . Police ofiicial after police oflScial had been
pecking at him all day since 6 o'clock in the
morning, when Lieut. Forbes brought him
down from Amsterdam, where he had been caught
on Monday. . . It was not permitted to Chung
Sin to sleep on Monday night. As soon as Forbes
got the Chinese away from the chief at Amster-
dam, he began to shoot questions at him. He
grilled him while they waited for the train, while
they made the long ride to this city, while they
were on their way to police headquarters, and
when Forbes left off Capt. Carey took it up.
For twenty-four hours they racked him with
questions. . . An all day's experience with
the third degree at police headquarters did not
shake the nerve of the Chinese. . . At one
point, he began to show his annoyance at the
continued questioning. He became surly and
226

LAWYER'S RESPONSIBILITIES

peevish. Evidently believing a psychological
moment had arrived, Captain Carey suddenly
jumped up and shouted: 'You helped put the
cord around the girl's neck! ' Chung also jumped
up, and dropped back into his chair, wheeling
completely about. But it was not from fear.
He had merely been startled by the noise and
suddenness of the question. He insisted that
he had not seen the cord around the girl's neck,
and did not see the crime committed. . . He
flashed anger when Assistant District Attorney
Ward and Capt. Carey tried to break him down
with the constant question: 'You did tie the
rope around Elsie's neck, didn't you?' Hour
after hour they pounded him with that question,
turning it and twisting it, but the Chinaman
squirmed free every time. . . It is thought by
the police that a continuation of the examina-
tion of the witness will result in his giving more
valuable information."

The Chief of the Detroit detectives states
his practice as follows:

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REFORM OF LEGAL PROCEDURE

"I am a police officer, not a lawyer. We've
got to make laws of our own. If we suspect a
man we see that he doesn't get a lawyer near him
until we get through with him. We question
him, and comer him up until he confesses. There
was that young fellow who murdered the old
woman, and who was acquitted by the jury
though he confessed. We used no brutality.
He said he wanted to confess, after some facts
were shown to him. If a man has committed
a murder, we are going to get that man to confess
if we can. They break doA;vn. But, brutality,
naw, none of that. Mind, I ain't saying anything
about the play, but that's all wrong. We kept
at Hamburger day after day. He was a well-
dressed, good-looking fellow. I knew it would
be hard to put it on him. But after some days
he would hold his hands about his waist as if in
pain, and say, 'l feel so bad. I feel so bad. I
want to tell you all. But I cannot, I cannot.'
We saw that we had him goin'. He finally
broke down. They usually break down. And
228

LAWYER'S RESPONSIBILITIES

in spite of his confession we had a hard time con-
victing him."

One more statement is found in the "New
York World" of November 30:

"The latest thing in accommodations at the
new building is what the poUce term the 'roast
or freeze third-degree rooms.' There are two
rooms in the basement to be devoted entirely
to this work. They are absolutely bare and
forbidding, with steel walls and pipes for quick
changes of temperature. Above the grated
ceilings electric Ughts are so arranged as to
light the rooms instantly or else throw them
into complete darkness. The temperature of
the rooms can be lowered or increased in a few
minutes, which means a real 'sweating' or a
'freeze out' for the unfortunates made to submit
to the process."

These statements and others Uke them are

made constantly m the newspapers, and one

reads the nonchalant statement quite frequently

that "the prisoner after undergoing the third

229

REFORM OF LEGAL PROCEDURE

degree confessed." Thus while we shudder at
the stories of mediaeval tortures and regard with
horror the instruments of cruelty when we see
them at Nuremberg or in other ancient fortresses,
we revive them in our own cities.

In a word the Constitution jealously guards
the defendant from being obliged to say anything
in court where his rights would be fully pro-
tected by counsel, judge, and pubhc opinion,
but he is turned over without any protection to
the mercies of police officers who, believing him
guilty and goaded by the clamor of the pubHc
that the perpetrators of a crime be detected and
punished, resort to all sorts of irregular and inde-
fensible practices, carried on in the cells of jails
or other places of detention, to obtain his con-
fession of guilt. How irrational and lawless is
the community which tolerates a secret inquisi-
tion by detectives and regards with horror an
open inquiry in a Court! It is time that our
practice was suited to the needs of justice and
the changed conditions of Ufe, and that the
230

LAWYER'S RESPONSIBILITIES

accused be on the one hand protected from being
obliged by secret torture to criminate himself,
and on the other no longer protected against
open inquiry and the proper inferences from his
answers or his silence.

If we can simpHfy our indictments, and make
the best witness testify as to the facts, it only
remains to secure prompt trials with only one
appeal. Grand juries should sit often enough,
and trials proceed promptly upon indictment.
A single appeal is enough, and in criminal as
in civil cases the rule should be that only for
substantial and material error should the judg-
ment be reversed.

The grounds on which convictions are reversed
are in many cases absurd. A member of the
Alabama Bar addressing the Bar Association of
that state said:

"I have examined about seventy-five murder

cases that found their way into the reports of

Alabama. More than half of these cases were

reversed, and not a single one of them on any

231

REFORM OF LEGAL PROCEDURE

matter that went to the merits of the case; and
very few of them upon any matter that could
have influenced the jury in reaching a verdict,"

The same story comes from all over the country,
and the American Bar Association has three
times recommended the adoption of the rule
that no conviction shall be set aside unless the
records shows that the defendant was improperly
convicted.

If the trial judge is given power to sentence
immediately after verdict where in his judg-
ment the exceptions are without merit, many
fooUsh appeals would be discouraged and the
cause of justice would not suffer. Especially
is it important that judges should be slow to
allow writs of error which will carry the cases
of men convicted under state laws to the Supreme
Court of the United States. That august tri-
bunal may as a rule safely leave the administra-
tion of criminal justice to the tribunals of the
state in which the crimes are committed, and the
delays secured by appeals to the Supreme Court
232

LAWYER'S RESPONSIBILITIES

are from every point of view unfortunate. For
various reasons this rule should be applied less
strictly to cases arising in the territories of the
United States where the tribunals are apt to
reflect the opinions, not of the whole population
but of a certain class, and of course there must
always be cases in which the interposition of
the Supreme Court is necessary.

Finally a word may be said in regard to the
excessive and pernicious zeal of the lawyers who
defend criminals, and it is best said by President
Taft:

"The conduct of the defense of criminals in
this country, and the extremes to which counsel
deem themselves justified in going to save their
clients from the just judgment of the law, have
much to do with the disgraceful condition in which
we find its administration. The awakened moral
conscience of the country can find no better ob-
ject for its influence than in making lawyers
imderstand that their obligation to their clients
is only to see that their client's legal rights are
22>Z

REFORM OF LEGAL PROCEDURE

protected, and that they ought not to lose their
identity as officers of the law in the cause of
their clients and recklessly resort to every
expedient to win the case. I believe that there
is no escape from the evil tendencies to which I
have referred, except by inducing the Bar to
cleanse itself of those who in the interest of their
clients forget their obUgation as attorneys to
the court and their duties as a citizen."

It is by such devices that the trial of Patrick
Calhoun was prolonged for nearly five months
in San Francisco and ended in a disagreement
of the jury.

At the outset of these lectures I pointed out to
you that the law and the legal profession have in
late years sunk in popular estimation, and that
upon you and others Uke you who are just enter-
ing upon practice will devolve no small part
of the work which must be done to replace
both in their true position. It will be your
duty to make the law respected and obeyed, and
to be respected it must be respectable. Judges
234

LAWYER'S RESPONSIBILITIES

of high character, learning, and ability, cannot
fail to command for themselves and their decisions
the respect of the community, but courts alone
do not make the law. We have, or shall soon
have, besides the Congress of the United States
some forty-eight state legislatures, and no one
knows how many municipal legislatures, engaged
in making laws of greater or less scope. Our
people are beset with the notion that the remedy
for any trouble which they encounter, however
sUght, is to be found in a new law, and they
rush to the legislature with every sort of crude
proposal for legislation. These are referred to
committees more or less competent and very
busy; they are hastily considered, and their
consequences imperfectly appreciated. When
they reach the legislature they are more hastily
and inconsiderately amended, and often are
passed with no adequate discussion in the closing
hours of a busy session. As a result a flood of
new law is let loose upon the inhabitants of
each state every year or two years, and any
235

REFORM OF LEGAL PROCEDURE

public-spirited citizen who watches the legisla-
ture and tries to prevent foolish laws cannot but
be amazed at the way in which our country is
governed.

Nor is this the worst feature of the case.
Our Congress and our various legislatures have
it in their power to grant franchises, special
privileges, and immunities. They can adjust
taxation to favor some and burden others, they
can pass very stringent regulations of private
business Hke the anti-trust laws or the interstate
commerce laws, or the state laws regulating the
price of gas, or the relations of employer and
employed. In a word they can by law put money
into A's pocket and extract it from B's. Hence
arises a demand from the men who want legis-
lative aid for one set of laws, and from those
who do not wish to be disturbed a pressure for
other or no legislation. The danger is that the
power to give a man money will not be exercised
for nothing, and it is unnecessary to take your
time in proving what we all know — that persons
236

LAWYER'S RESPONSIBILITIES

desiring to get or defeat legislation have bought
and will buy legislators. The price may not be
paid always in money, but in other things which
men desire, such as offices, employment, chances
to share in a profitable venture, or social oppor-
tunities. But whatever the price, it secures the
laws which the buyer wants, and hence the jokers
in tariff laws and the various questionable statutes
passed in private interests, many instances of
which no one familiar with state legislation can
fail to recall. These influences and practices
corrupt our legislation.

On the other hand the men who are so anxious
to have laws passed are by no means equally
anxious to obey them. The manufacturer and
merchant who have secured protection by tariff
legislation are found evading the very tariff
laws which were passed at their instance. The
recent disclosures of smuggling in New York
both by wholesale importers, Uke The American
Sugar Refining Co., and by returning travellers
are too recent to need enumeration. How often
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REFORM OF LEGAL PROCEDURE

do our fellow citizens who run automobiles respect
the speed Hmit and the other regulations made to
protect the public? How carefully have the rail-
roads respected the law against rebating, — how
scrupulously has the Sherman law been observed
by the trusts? How carefully have the provisions
of the Constitution and its requirements been
respected by executive oflBicers in our recent
experience? How well have the States obeyed
the Fifteenth Amendment? The prevalence of
lynch law, the mob violence which attends a
strike, the frauds in weights and measures dis-
covered a year ago in New York, the departure
of half the Senate of West Virginia from that
state in order to secure some poHtical advantage
— all these things and many more might be
cited to show that law is not respected in this
country because it is law. Men prescribe new
laws, and new laws, and again new laws, as a
remedy for the ills of the body politic, but they
despise their own medicine.
Nor is this altogether surprising. Our system
238

LAWYER'S RESPONSIBILITIES

of government assumes that a statute will be
passed by the representatives of the people
fairly chosen, acting impartially under no im-
proper influences, and having in mind only the
public interest. When the people find that in
practice this assumption is not justified; when
they find trust companies slipping through the
legislature a few words in a bill which exempts
them from taxation ; when they find a clause in a
tariff which ostensibly lowers duties nullified by
a "joker"; when they witness the legislative
struggle between two contending corporations
for a particular franchise and see how the victory
is won, they lose respect for the legislators and
their work. When they find them elected by
fraud and their work tainted by fraud, why
should they respect the laws which they make?

For some years I have spent a portion of each
summer in Germany. I have gone regularly
in the afternoon or evening to a garden where
concerts are given daily. It is near a great city
and admission is cheap. The concerts are
239

REFORM OF LEGAL PROCEDURE

attended by all classes of people, and the attend-
ance varies from six or seven hundred to more
than two thousand. They sit in seats or at Little
tables as close as they can be put. They have
anything that they want to drink. In three
years I have never seen any rudeness, I have
never heard a voice raised above the gentle pitch
of quiet conversation, I have never seen anyone
drunk, I have never seen an objectionable or
disorderly person, and I have never seen a police-
man. The streets in the town and neighboring
country are lined with fruit trees, and no fence
protects them from the public. Indeed there is
hardly a fence or wall of any kind from the North
Sea to Switzerland, Yet the fruit on the trees
(ripe cherries of the most tempting kind) is as
safe as if a dog or policeman guarded each tree.
Where on this side of the water could these
conditions be matched? Near what large Ameri-
can city are fruits and flowers safe from depreda-
tors?
On August I, the Swiss Fourth of July, I spent
240

LAWYER'S RESPONSIBILITIES

an evening on a public steamboat on the Lake
of Thun which was crowded with all sorts of
people. We cruised about for some hours,
looking at the fireworks sent up in different
places. There was a band on board and a bar,
but the crowd was quiet and orderly, and a lady
without an escort would have had no reason
to fear any rudeness. Who would think of taking
ladies on an excursion boat in the harbor of New
York or Boston or any other port on the night of
a holiday !

I might multiply these experiences, but I
merely wish to indicate the difference between
that respect for the law which seems natural
to the Swiss and the Germans and which at one
time was native in New England and the
present conditions. It is the difference between
the spirit which breathed in the Massachusetts
Bill of Rights, where it is written that: "The
legislature ought frequently to assemble for the
redress of grievances, for correcting, strengthen-
ing, and confirming the laws and for making
241

REFORM OF LEGAL PROCEDURE

new laws as the common good may require,"
and the feeling of to-day which dreads the
assembling of any legislature, and hails its
adjournment with delight. It is this feehng
which leads men to do all that they can to prevent
an extra session of Congress, which is content
with biennial sessions of the legislature, which
limits by constitution restriction the duration
of the session, which fetters the power of the
legislature in various ways as by preventing it
from passing special laws, or insisting that each
law shall deal with a single subject which must
be expressed in its title.

The people's distrust of their own representa-
tives finds expression in every recent constitu-
tion, and in the various attempts to improve
municipal government by abolishing large boards
of councilmen and substituting a small com-
mission or increasing the power of a mayor.

In a sense this change in public feeling like
the tendency to hmit the power of judges is a
reflection on our profession, for it is we who are
242

LAWYER'S RESPONSIBILITIES

in very large part responsible for legislation.
Every legislature contains a large percentage of
lawyers, and to them their associates turn for
counsel on legal questions. Lawyers appear in
support of or opposition to proposed laws,
they argue before committees, they interview
legislators, they influence legislation in open,
and unhappily some times in secret ways, and
as the lawyers are the professors and priests
of the law in every community, so are they
responsible more than any one else for bad
legislation, sometimes because they procure it,
and more often because through laziness, lack
of public spirit, or fear of public odium they
fail to oppose it. We should feel our responsi-
bility for the laws under which our community
lives, but the responsibility too often rests
lightly upon our shoulders.

A statute, as I have said, should be the free

and honest expression of the legislative will,

and in reaching its conclusion the legislature

should be kept as free from improper influence

243

REFORM OF LEGAL PROCEDURE

as a judge or a jury. It is a high ideal you may
say, but it is none the less the ideal to which we
must aspire. There are enough influences to
lower the standard. Let ours be always exerted
to keep it up. In the homely phrase: "You don't
hit high by aiming low."

As a legislator the lawyer should endeavor
to prevent all unwise and ill-considered legis-
lation. A change of the law should only be
made after due consideration and discussion.
No one can tell what mischief results when the
Senate in a few hours passes bills appropriating
hundreds of milHons of dollars, and by the
appropriation often commits the country to a
mischievous policy without discussion or real
consideration, as was done when the appropria-
tion to fortify the Panama Canal was passed by
the Senate without debate. The motto of the
legislator should be " quality not quantity." The
hasty legislation of to-day returns for correction
next year, and it has been said that in Massa-
chusetts 60 per centum of the laws passed at
244

LAWYER'S RESPONSIBILITIES

one session are repealed or amended within a
few years. /The proportion may or may not
be accurate, but a little saving of time at one
session often means a great consumption of
time at the next, and great mischief in the
meanwhile.

Whether he sits in the legislature, or appears
before its committees or in its lobbies, the lawyer
should insist that no improper influence be used
to influence the legislators. I cannot put the
case better than I did some years ago in ad-
dressing the American Bar Association when I
said that a peculiar responsibility rests upon
our profession in connection with legislation:
"It is we who represent great corporations
before committees and conduct legislative
campaigns. It is our advice upon which the
representatives of great interests depend. It is
to 'Legal Expenses' in corporation ledgers that
many a questionable outlay has been charged.
The fortune of our client may be made or des-
troyed by the decision of a court or the verdict
245

REFORM OF LEGAL PROCEDURE

of a jury. The establishment of a patent may
involve as many millions as can be gained through
any action of any legislature. Yet would we
on that account take steps to secure a packed
jury or try improperly to influence a court?
The lawyer who should seek by foul means to
win a verdict or secure a decision would be driven
from the Bar, if discovered, and be forever dis-
graced. Is there any reason for regarding a
legislature as less sacred than a jury? The
power of the first is far greater. The interests
in its charge are far more important than are
often committed to a jury. The verdict affects
only the parties to the cause. The law governs
the whole community. Should we not on this
account be even more careful to guard the
legislature from improper approach?

" As officers of the court we feel bound to pro-
tect its honor. As citizens of the common-
wealth are we not equally bound to defend the
purity of the legislature which holds its power
in sacred trust for us all, and on whose integrity
246

LAWYER'S RESPONSIBILITIES

rests the continued existence of the state? We
know that if the community loses faith in the
absolute purity of its courts, the whole social
fabric is imperilled. We remember how in
Cincinnati, indignant at the miscarriage of
justice in court, the mob burned the Court House
and did justice according to its own views. We
have not forgotten how promptly the community
took the law into its own hands when a jury
acquitted the Italian murderers in New Orleans.
In dealing with the delicate questions between
labor and capital, which are pressing upon us,
the legislature is the court and jury. When
men's passions are as strongly enlisted as they
are in these disputes, the most perfect integrity
and the greatest wisdom are needed to adjust
them. Absolute confidence in the arbiters is
essential. Let it once be believed by the laborer
that some great legislative contest has been
determined against him by money, and how long
will it be before we witness a riot which mil be
perhaps a civil war?

247

REFORM OF LEGAL PROCEDURE

" The fees which are paid for very sUght legis-
lative services are large. Their size often stig-
matizes the employment. The temptation is
great, but we who are the interpreters and to
a great extent the makers of the law, we whose
consciences are educated in courts of justice, we
who should lead the community up, and who
know that upon respect for the law rests our
whole system of government, we certainly cannot
escape the gravest condemnation if, through any
act, advice, or acquiescence of ours, the fountains
of the law are polluted. The honor of our pro-
fession, the future of our country, are at stake.
The law is in our keeping, and our hands must
never weaken its hold upon the people. Let us
remember the stern command of the ancient
Roman, ' Tu cole justitiam. Tibi et aliis manet
ultorJ "

The phrase "corporation lawyer" has become

a term of reproach, the suj6&cient answer of the

demagogue to any argument made by the leaders

of the Bar. This reproach is unjust, and its

248

LAWYER'S RESPONSIBILITIES

injustice must be made apparent by our conduct.
In the words of Governor Harmon the law'yer
who acts for corporations: "must not forget that
they unhke his ordinary clients have or may have
interests which conflict with those of the public,
and that his first duty is to the public, not only
because he is a citizen, but because from it he
has received his commission as an oflScer of
justice."
To quote from Governor Woodrow Wilson:
"My purpose is to recall you to the service
of the nation as a whole, from which you have
been drifting away; to remind you that, no
matter what the exactions of modem legal
business, no matter what or how great the neces-
sity for specialization in your practice of the
law, you are not the servants of special interests,
the more expert counsellors of this, that, or the
other group of business men; but guardians of
the general peace, the guides of those who seek
to realize by some best accommodation the
rights of men.

249

REFORM OF LEGAL PROCEDURE

"You are servants of the public, of the state
itself. You are under bonds to serve the general
interest, the integrity and enhghtenment of
law itself, in the advice you give individuals.
It is your duty also to advise those who make
the laws — to advise them in the general in-
terest, with a view to the amelioration of every
undesirable condition that the law can reach,
the removal of every obstacle to progress and
fair deaUng that the law can remove, the Hghten-
ing of every burden the law can Hft, and the
righting of every wrong the law can rectify. The
services of the lawyer are indispensable not only
in the application of the accepted processes of
the law, the interpretation of existing rules in
the daily operations of life and business. His
services are indispensable also in keeping and
in making the law clear with regard to responsi-
bility, to organization, to liabihty, and, above
all, to the relation of private rights to the public
interest. . .

"Some radical changes we must make in our
250

LAWYER'S RESPONSIBILITIES

law and practice. Some reconstructions we must
push forward which a new age and new circum-
stances impose upon us. But we can do it all
in calm and sober fashion, like statesmen and
patriots. Let us do it also like lawyers. Let us
lend a hand to make the structure symmetrical,
well-proportioned, soUd, perfect. Let no future
generation have cause to accuse us of having
stood aloof, indifferent, half hostile, or of having
impeded the reaUzation of right. Let us make
sure that liberty shall never repudiate us as its
friends and guides. We are the servants of
society, the bond-servants of justice."

Not only must we protect the legislature
against corruption by citizens and their counsel,
but we must protect it against the usurpation
of its power by the executive. The true principle
of our government is stated in the Massachusetts
Bill of Rights:

"Li the government of this Commonwealth,
the legislative department shall never exercise
the executive and judicial powers, or either of
251

REFORM OF LEGAL PROCEDURE

them; the executive shall never exercise the
legislative and judicial powers, or either of them;
the judicial shall never exercise the legislative
and executive powers, or either of them; to the
end it may be a government of laws and not of
men."

The people through their representatives
chosen for that purpose make the laws.

The executive o£&cers, president or governor,
are chosen to execute the laws. They have the
power to suggest laws which they think wise,
and to veto those which they think unwise, but
no more. The power to recommend is not the
power to legislate. Whatever influence can be
exerted by recommendation, the executive has
the right to exercise, but no more. Some body
of men must decide what legislation is wise,
and the legislature is that body of men. The
President may have one opinion as to what law
should be passed, the Supreme Bench another,
the House of Bishops perhaps a third, but the
legislature's judgment must prevail.
252

LAWYER'S RESPONSIBILITIES
The Governor or the President may explain
to the people why he advises a certain measure
as President Lincoln used to do, and as Governor
Hughes recently did in New York, but when he
goes beyond this limit, when he gives or with-
holds patronage to influence votes, he is in fact
bribing the legislature. The ofiices are created
in order that the pubhc business may be done,
not to provide a corruption fund, and when
appointments are made or refused to secure
support for the executive's policy, when members
of the legislature are rewarded or punished not
for voting as they think right but for voting as
the executive wishes, they are influenced cor-
ruptly, and the will of the executive not the judg-
ment of the legislature makes the law.

The question is not whether a given measure
is good or bad; if bad it should not be passed, if
good public opinion can be trusted eventually to
force its passage. The question is who shall
decide whether it is good or bad, the executive
or the legislature, and whether the decision when
253

REFORM OF LEGAL PROCEDURE

made shall be the honest judgment of the legis-
lator, or simply a decision which he is paid to
render by getting something that he wants for
himself.

The tendency to control the legislature by
other means than fair argument has of late been
unpleasantly manifest. "My poHcy," as Presi-
dent Johnson called it, or "my policies," the
phrase adopted by his recent successors, are
phrases of ill omen, and it is the duty of our
profession to resist all efforts to impose upon the
representatives of the people the poUcies or
opinions of one man by any appeal to improper
motives. And I say this though I favor many
of the measures which are thus improperly
pressed. What is done to-day for good ends
is a precedent which may be quoted hereafter,
when the same things are done to promote bad
measures. The public opinion of the American
people is the only weapon that a President needs
to carry any good measure through Congress.
When that fails, the measure should fail too.
254

LAWYER'S RESPONSIBILITIES

And now, gentlemen, my task is done. You
are about to enter the service of the law, and
perhaps are familiar with the sonorous words in
which Hooker describes the ideal law:

" Her seat is the bosom of God, her voice the
harmony of the world, all things in Heaven and
Earth do her homage, the very least as feeUng
her care, and the greatest as not exempted from
her power."

It is this ideal for which you must labor, and
the rewards which await him who shall do his
part in lifting our profession from its present
low estate, in making the administration of the
law a prompt and efficient method of doing
justice, and in causing the law everywhere to
be respected and worthy of respect are far greater
than any fortune or fame which he, however
brilliant he may be, can hope to win, who makes
himself only the tool of his chent. The unscru-
pulous lawyer who sells his talents and espouses
any cause or adopts any means to accomplish
his client's ends, who makes his client in a word
255

REFORM OF LEGAL PROCEDURE

his master, will live to say with Wolsey, and
with as bitter regret:

"Had I but served my God with half the zeal
I served my king, he would not in mine age have
left me naked to mine enemies."

256

INDEX

Accused, The, value of testimony of, 215-6; advantage of
direct interrogation of, 222

Accident Insurance, report of New York Commission on,
57; the problem of, 61; certain systems of, 63; fraternal
method, 65; advantage of Mutual Fire Insurance, illus-
trated, 66; premium for, explained, 68; possible advan-
tage of State participation in, 70, 71; German system of,
7S> 77 i report of the Committee on the Judiciary of the
National House of Representatives on, 78; President
Roosevelt on, 80; railroad and steamboat and railroad
passengers and, 82-3

"Advance" of Chicago on crime, 198-9

Alabama Bar, address of member of, 231-2

Alger, George W., article by, quoted from, 104-8

American Bar Association, recommendation of to Congress,
171; recommendation of on setting aside of convictions,
232; author's address before, 245-7

Appeals, Court of, quoted on changing testimony, 106;
cause of delay in, 170

Arizona, new constitution of, 7

Bar Association of New York, report of committee, 146-7

Bartlett, Sydney, advice of Mr. Justice Miller to, 163

Biglow, Hosea, aphorism quoted, 160

Borough, President, case of, 145-6

Boston, frequency of personal injury suits in, 51; cost of

257

INDEX

jury sessions in, 56; comparative infrequency of dis-
agreements in, 191
Bowen, Lord Justice, quoted, 148
Bribery, recent disclosures as to methods, 219
Brougham, Lord, quoted on duty to client, 29, 30
Brown, Mr. Justice, on a recent statute, 119-20

Calhoun, Patrick, prolongation of trial of, 234

Clififord, Mr. Justice, quoted, 157

Courts, what the decisions of decide, 24; rules of English,
36; partially responsible for existing abuses, 125; ad-
vantages of hearing before, 135-6; plans adopted for
securing speed in English, 142-4; plea for establish-
ment of final judges, 149; point of view of, 162; advan-
tages of oral argument in, 163-5; need for increased
power of, 173; criminals nowadays protected by, 217

Crippen Case, time taken to select jury in, 211; publisher
fined for false statement concerning, 213

Cross-examination, a dangerous amusement, 96; rules
for, 97

Delay, causes during trial, 92; remedies for, 93; in Phila-
delphia V. Pittsburgh, 108-9; bow to avoid, 109; reading
judgments, cause of, 170

Demosthenes, cited, 220

Dickinson, Secretary, quoted, 201

Disputed Wills, source of litigation, 89; method of avoid-
ing, 89, 90

"Dooley, Mr.," on judges, 165-6; on the convict's
chances, 217

Eliot, President, quoted, 199

Ellis v. Delaware, Lackawanna and Western R. R. Co., 105

Employers' Liabihty, President Roosevelt on, 80

258

INDEX

England, procedure in, 48; description of court in, 98;
place of Judge in, iii; on Judges summing up in, 123;
counsel not limited in 161; work of Judges in, in com-
parison with Chicago, Massachusetts, 187-90; jury
easily impanelled in, 211

Folk, Governor, efifect of imperfect indictment in convic-
tions secured by, 209; conspicuous rascal on convic-
tions of, 209

France, sj'stem of interrogation 01 witnesses in, 218

Franchise Tax Law, case of, 146

Germany, on direct interrogation of accused in, 218;
author's experience in, 239-40; respect for law in, 241

Hamilton, Alexander, quoted, 174

Harbin v. Maslerman, L. R. ist Chan. Div., 37

Hoar, Judge, on beginning opinion, 168

Holt, Judge, on number of criminals, 195

Hopkins, Charles T., on Atlanta riots, quoted, 201

Hooker, description of the ideal law, 255

Hough, Judge, statement of, 130-2

Hughes, Mr. Justice, quoted, 159

Humphreys, Judge, censured, 6

Indictment, its object, 203; suggested form of, 204; so-
called flaws of, 205; examples of imperfect, 206-8; in-
stances of results of, 209; need of simple forms of, 210

Interstate Commerce Act, subject of study in law
courts, 19

Jeffrey, Lord, quoted, 12

Judges, described as "fossilized," "reactionary," 6; dictum

259

INDEX

of English, 54; duties of, in relation to altercations
between counsel, 93; duties in cross-examination, 94;
story of an English, 94-5; charge of a, loi; slight
chance of injustice from error of, 103; capacity of, no;
status in England of, in; Mr. Justice Gray on, 112;
Mr. Justice Brewer on, 113; powers and limitations
of, 114; need for, 115; Professor Pound on, 116;
further limitations of, 117; full powers of, instanced, 121;
character of, 168; need for strong men as, 169; political
structure resting on power of, 174; need of strong bench
of, 175-6; how to be obtained, 177; should be ade-
quately rewarded, 179; difiBculty of securing, 180-1;
restraint of political burden, 181; inadequate treat-
ment of, 183; quotation from a Kentucky, 184; cost of
increased salaries of, 185; selection of, in comparison
with England, 186-7; number of in Massachusetts, 187;
in further comparison with England, 188-90; no greater
number of, required, 190; charge of able Massachusetts,
214; saying of another, 215
Jury, imperfect consideration of, 99; story of a member of,
loi; province of, 102; system for, 102-3; desirability
of furnishing stenographer's report, to, 122-3; delay in
securing, 209-10; able judge's charge to, Massachu-
setts, 214

Law, respect for essential, 2; is civilization, 11; on
the reforms in, 13-15; drawn hastily, 18; the delay
of, 21-3, 5; value of delay of, 26-8; cause for delay
of, 32; diflferent systems of the, U. S., 150; need for
uniformity of, 151-3; obedience to, illustrated, 214;
how freshly created, 235; how adversely afifected
by legislation, 236-7; power of legislation in regard
to, 252

Lawsuit, defined, 27; severe competitive examination
of, 42; settlement of, delayed for six years, 44; prolific
260

INDEX

cause of delay of, 46; real estate and insurance, less
frequent cause of, 50-1
Lawyers, duty of, leaders of corrmunity in past, 2; serious
faults of, 6; incapable as leaders, 9; as American states-
men, 10; champions of liberty, 11; Massachusetts, form
of oath of, 30; San Francisco Bar on duties of, 31;
ethics of, 32; standards for, 38; need of keener profes-
sional conscience of, 46; remark of a, 46; need for
association of, 86; fear of tricky, 87; address to jury of,
unlimited in Iowa and North Carolina, 117; power of,
in Texas, 118; obligation of, to aid court, 157; true atti-
tude of, instanced, 158; responsible for legislation, 243;
duties of, as legislators, 244
Lincoln, Abraham, cited, i; "an honest lawyer," 40; a

biographical note of, 41
London, few homicides in, during 1909, 195
Lorimer, Senator, decision of Senate in regard to, 220
Louisville, Kentucky, number of homicides in, 197
Lowell, Judge John, the late, rule of, 167

Master or Referee, class of cases held before, 124; hearing
before occasion of delay, 125; nominal power of, 128;
prolific sources of delay, causes for, 134; system of,
unsound, 139; suggested remedies for, 140-1

Massachusetts, collection of debts in, 34; quotation from
commission appointed in, 47; Bill of Rights of, quoted
from, 183; number of judges in, 187; population of
in relation to judiciary, 188; comparison with England,
188-9; Bill of Rights quoted from, 241-51

Mexican, Law, covering Accident Insurance, 72

Miller, Mr. Justice, advice of, quoted, 163

Miller, Tax Assessor, marvelous letter of, 202

"Nation, The," a letter to, quoted, 223-4
National Economic League, Council of, vote of, 8
261

INDEX

Nebraska, Supreme Court of, provision in Constitution,

how afifecting, 119
Newspapers, full narratives of crime appear in, 211; abuse

of, an impediment to justice, 213
"New York World," statement from, 229

O'Gorman, Justice, quoted, 147

Personal Injury Suits, nature of, frequency of, 51-3;
abuse of medical testimony in, 54-5; reduction of
damages in, 59; speech of a lawyer in, 100

Roosevelt, Theodore, cited, i; on public leaders, 9; Har-
vard Alumni address quoted, 1 7 ; address at Jamestown
on accident liability, 80

Scoville, Mr., on delay of jury trial in Philadelphia, 108

Sherman, Anti-trust Law, varying interpretations of, 154

Sumner, Charles, saying of, 39

Supreme Court, rights of poor man in, 4; campaign upon,
6; on the Sherman law, 18; in Nebraska, 119; right to
invoke should be rendered easy, 155; on appeals to, 232

Taft, William Howard, as a judicial authority, 2; Chicago
speech quoted, 3; on defense of criminals, 233

Taxes, numerous and ill-assorted, 152; instance of unfair-
ness of, 153

Third Degree, the, 223; instances of, 224-5; chief of
Detroit detectives, method of, 228; mediaeval torture
of, 230; illogical attitude of public towards, 230-1

Tichborne Case, claimant, length of trial of, 25; charge
of Chief Justice Cockburn in, 11 1-2
262

INDEX

"Times," of London, article from, quoted, 109
"Tribune," Chicago, figures on homicides, quoted, 195

Untenneyer, Samuel, suggestion of, 88

Vance, Professor, on the American Lawyer, 5

Whitcomh v. Converse, cited, 158

White, Andrew D., President, quoted, 196; "New Bed-
ford Standard" on, 196-7
Wilson, Woodrow, Governor., quoted, 249-50
Witnesses, trials of, 126-7

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