Civilization in the United States: An inquiry by thirty Americans

by Unknown

THE LAW

“The first thing we do, let’s kill all the lawyers.” This outcry of Jack Cade’s followers that the disappearance of the whole profession was the initial step in man’s progress toward a better world would be echoed in the United States by the revolutionists of to-day, and also by not a few solid business men who have nothing else in common with the mediæval agitator except perhaps the desire to see the fountains run wine and make it a felony to drink near-beer. Indeed almost every one takes his fling at the law. Doctors and ministers can be avoided if we dislike them, but the judge has a sure grip upon us all. He drags us before him against our will; no power in the land can overturn his decision, but defeated litigants, disappointed sociologists, and unsuccessful primary candidates all join in a prolonged yell, “Kill the umpire.”

Where there is smoke, there is fire. Underneath all this agitation is a deep-seated suspicion and dissatisfaction aroused by the legal profession and the whole machinery of justice. It exists despite the fact observed by Bryce, that our system of written constitutions has created a strongly marked legal spirit in the people and accustomed them to look at all questions in a legal way—a characteristic exemplified when other peoples judged the Covenant of the League of Nations as an expression of broad policies and the aspirations of a hundred years, while we went at it word by word with a dissecting knife and a microscope as if it had been a millionaire’s will or an Income Tax Act. Moreover, although lawyers as a class are unpopular, they are elected to half the seats in the legislatures and in Congress. The profession which cannot boast a single English Prime Minister in the century between Perceval and Asquith, has trained every President who was not a general, except Harding. Perhaps this very fact that lawyers receive public positions out of all proportion to their numbers partially accounts for the prejudice felt against them by men in other professions and occupations.

Hostility to lawyers and case-law is no new phenomenon in this country. Puritans and Quakers arrived with unpleasant memories of the English bench and bar, who had harried them out of their homes. To them, law meant heresy trials, and the impression that these left on the minds of their victims has been set down forever by Bunyan in the prosecution of Faithful at Vanity Fair. The Colonists were no more anxious to transplant some Lord Hate-good, his counsellors, and his law books to our shores, than Eugene V. Debs would strive to set up injunctions and sedition statutes if he were founding a socialistic commonwealth in the South Seas. The popular attitude toward lawyers was re-inforced by the clergy who were naturally reluctant to have their great moral and intellectual influence disputed by men who would hire themselves out to argue either side of any question. The ministers who ruled Massachusetts and Connecticut by the Law of Moses, wanted no rivals to challenge their decisions upon the authority of Bracton and Coke. And everywhere, except perhaps on the Southern plantations, the complicated structure of feudal doctrines, which constituted such a large part of English law well into the 18th century, was as unsuited to Colonial ways and needs as a Gothic cathedral in the wilderness. Life was so pressing, time was so short, labour so scarce, that the only law which could receive acceptance must be so simple that the settlers could apply it themselves. Although Justice Story has spread wide the belief that our ancestors brought the Common Law to New England on the Mayflower, the truth is that only a few fragments got across. These were rapidly supplemented by rules based on pioneer conditions. Much the same phenomenon occurred as in the California of 1849, where the miners ignored the water-law of the Atlantic seaboard which gave each person bordering on a stream some share of the water, and adopted instead the custom better suited to a new country of first come, first served. Almost the earliest task of the founders of a Colony was the regulation of the disputes which arise in a primitive civilization by a brief legislative code concerning crimes, torts, and the simplest contracts, in many ways like the dooms of the Anglo-Saxon kings. Gaps in these codes were not filled from the Common Law, as would be the case to-day, but by the discretion of the magistrate, or in some Colonies, in the early days, from the Bible. Land laws and conveyances were simple,—the underlying English principle of primogeniture was abolished outright by several Colonial charters, and disputes of title were lessened by the admirable system of registering deeds. Such law did not require lawyers, and it is not surprising that even the magistrates were usually laymen. The chief justice of Rhode Island as late as 1818 was a blacksmith. Oftentimes a controversy was taken away from the court by the legislature and settled by a special statute. Thus, instead of the English and modern American judge-made law, the Colonists received for the most part executive and legislative justice, and lived under a protoplasmic popular law, with the Common Law only one of its many ingredients.

The training of the few Colonists who did become lawyers may be judged from that of an early attorney general of Rhode Island:

“When he made up his mind to study law, he went into the garden to exercise his talents in addressing the court and jury. He then selected five cabbages in one row for judges, and twelve in another row for jurors. After trying his hand there a while, he went boldly into court and took upon himself the duties of an advocate, and a little observation and experience there convinced him that the same cabbages were in the court house which he thought he had left in the garden,—five in one row and twelve in another.”

The natural alienation of such attorneys from the intricacies of English law was increased by occasional conflicts between that system and Colonial statutes or conceptions of justice. An excellent Connecticut act for the disposal of a decedent’s land was declared void by the Privy Council in London as contrary to the laws of England, and the attempt of the New York governor and judges to enforce the obnoxious English law of libel in the prosecution of Peter Zenger in order to throttle the criticism of public officials by the press, would have succeeded if the jury had not deliberately rejected the legal definitions given by the court.

The Common Law became somewhat more popular when the principles of individual rights which had blocked Stuart oppression were used against George III. After the Revolution, however, it suffered with all things English. Many lawyers had been Loyalists. The commercial depression turned the bar into debt collectors. The great decisions of Lord Mansfield which laid the foundations of modern business law were rejected by Jefferson and many other Americans because of that judge’s reactionary policy towards the Colonies. Many States actually passed legislation forbidding the use of English cases as authorities in our courts. The enforcement of the Common Law of sedition and criminal libel by judges, many of whom had been educated in England, identified the Common Law with the suppression of freedom of speech. Nevertheless, the old simple Colonial rules were insufficient to decide the complex commercial questions which were constantly arising, especially in maritime transactions. Aid had to be obtained from some mature system of law.

At this moment a rival to the Common Law presented itself in the Napoleonic code of 1804, attractive to the populace just because it was French, and to many of the bar because of its logical arrangement and because unlike English lawyers they were widely read in Roman and modern Continental law. For a time it was actually doubtful whether the legal assistance which American judges needed would be drawn from England or France. French writers were cited in the courts and Livingston drafted a code on the Napoleonic model for Louisiana. The English law had, however, one great advantage. It was written in our own language. Furthermore, a group of exceptionally able judges such as Joseph Story and James Kent, by their decisions and writings, virtually imported the great bulk of the Common Law into this country and reworked it to meet American conditions. Nevertheless, this law was something that came from outside and had not grown up altogether from the lives and thoughts of our own people, so that it has never meant to Americans what English law means to Englishmen, for whom it is as much a product of their own land as parliamentary government or the plays of Shakespeare.

Another reason for American hostility to law was found at the frontier. The pioneer, imbued with the conviction that he was entitled to the land which he had cleared, ploughed and sown, often thrown by crop failures into debt to the tradesmen in the town, resented law as something which was forced upon him by people who led easy lives, who took his land away for some technical defect of title, foreclosed mortgages, compelled him to pay for goods of high prices and low quality, suppressed hereditary feuds, and substituted a mass of book learning which he was too ignorant or too busy to read, for the simple principles of fair play which seemed sufficient to him. Habitual obedience to law was a spirit which could not develop in men who were largely squatters, and who, from the outset of our national history, disregarded the Congressional statutes which required that public lands must be surveyed before they were settled. Sometimes, as in this instance, the settler’s resistance to law was successful. More often they were overpowered by the strength of civilization and submitted to the law sullen and unconvinced.

The old frontier is gone, a new frontier has arisen. The meeting place of unfriendly races has moved Eastward from the Missouri to the Merrimac. The pioneers of to-day came often from autocratic lands where law was something imposed on them from above, and they were slow to regard our law as different in kind. It was not a part of themselves. Moreover, they did not find in America the energetic police organization which had compelled their obedience in Europe. The men who framed our system of laws were taught by Puritanism that duties declared by those lawfully in authority should be voluntarily performed. A statute once on the books got much vitality from this spirit and from the social pressure of the homogeneous settled communities, whatever the difficulties of enforcement at the frontier. These forces behind law became weaker when the population was split into numerous and diverse races by the great tide of immigration. Obedience to law, never automatic among us, now became liable to cease altogether whenever a person thought the law unreasonable or felt fairly certain that he would not be found out.

This belief that a law ceases to have obligation when it becomes inexpedient to obey it, extends far beyond the recently arrived elements in our population. For instance, a wealthy man with several American generations behind him, who was serving on the jury in an accident case, stood up on a chair as soon as the jury got into the consultation-room and urged them to disregard everything which the judge had instructed them about the inability of the plaintiff to recover if he, as well as the defendant, was negligent. “This doctrine of contributory negligence,” said this educated juryman, “is not the law of France or Germany or any country on the Continent of Europe. A number of eminent writers agree that it is a thoroughly bad law. Let’s have nothing to do with it.” Needless to say, the plaintiff recovered. This conception of a higher law than that on the books may owe something to the Abolitionists’ belief that they were not bound by the laws protecting the inhuman institution of slavery. Many conscientious persons still hold that a man ought not to be punished for disobeying a law which he believes to be morally wrong. Fortunately, a corrective to this dangerous doctrine of the inner legal light is found in the words of a leading Abolitionist, Judge Ebenezer Rockwood Hoar, in charging the Grand Jury on riotous resistance to the fugitive slave law, although he himself regarded it as vicious legislation:

“A man whose private conscience leads him to disobey a law recognized by the community must take the consequences of that disobedience. It is a matter solely between him and his Maker. He should take good care that he is not mistaken, that his private opinion does not result from passion or prejudice, but, if he believes it to be his duty to disobey, he must be prepared to abide by the result; and the laws as they are enacted and settled by the constituted authorities to be constitutional and valid, must be enforced, although it may be to his grievous harm. It will not do for the public authorities to recognize his private opinion as a justification of his acts.”

Disrespect for law has been aggravated by the changing function of the lawyer since the Civil War. In the forties and fifties, he stood out as a leader in his community, lifted by education above the mass of citizens, often before the public gaze in the court-room and chosen because of his forensic eloquence to deliver many of those set orations which Americans constantly demand, brought forward by the litigation of those days as the avenger of crime, the defender of those unjustly imprisoned, the liberator of the escaping slave, or upholding some great public right on behalf of his city or State—the construction of a toll-free bridge across the Charles, the maintenance of the charter of Dartmouth College. After 1870, this pre-eminence was challenged by the new captains of industry, and their appearance was accompanied by an alteration in the work of many an able lawyer, which soon obscured him to the popular imagination. The formation of large businesses required more and more the skill which he possessed. Rewards for drafting and consultation became greater than for litigation, which was growing tedious and costly, so that his clients avoided it whenever possible. Consequently, he changed from an advocate into a “client care-taker,” seldom visible to the people and often associated in their minds with the powerful and detested corporations which he represented. Much of the prejudice against “corporation lawyers” was unjust, and the business development of to-day would have been impossible without the skill in organization and reorganization of great enterprises which they displayed during the last half century. However, popular opinion of a class is inevitably based, not on all its members, but on a conspicuous few, and the kind of legal career described in Winston Churchill’s “Far Country” was common enough to furnish data for damaging generalizations. In any case, the decline in the public influence of the bar was inevitable, especially as certain businesses retained the exclusive legal services of a staff of men, so that it could be said: “Lawyers used to have clients; now, clients have lawyers.”

Of course, during this period there were many lawyers who made a notable success by conducting cases against corporations. These accident lawyers were, however, no more popular than their opponents, even with the workingmen whom they represented. The small means of their clients made any remuneration from them improbable unless damages were recovered. Consequently, the lawyer agreed to take nothing if defeated, but to even matters up insisted on a large fraction of the amount awarded, usually one-third or even more, if he won. Therefore, he fought not merely for justice and his client, but for his own fee, and the temptation to win by every possible means was great. Business men were quick to label him unscrupulous, while workingmen resented it when a large slice of the money which the jury gave to them as a just measure for suffering a lifelong disability vanished into some lawyer’s pockets.

No satisfactory substitute for the contingent fee was suggested, but the prejudice created by the system and by the dislike of corporation lawyers was too great to be dispelled by the many members of the bar whose practice lay in neither of these two fields. And indeed, the profession as a whole cannot free itself from blame for some very definite evils, soon to be discussed. Unfortunately, the long-standing antagonism between lawyers and laymen has distracted the thoughts of both sides from wrongs which ought to be and can be cured, and turned them to never-ending disputes on problems of relatively small importance. For instance, almost any layman will open a discussion of the function of the lawyer by condemning the profession because it defends criminals who are known to be guilty. The solution of this problem is not easy, but it is not worth a hundredth of the attention it receives, for it hardly ever arises. The criminal law is a small part of the whole law, and lawyers who have spent their whole lives in that field have declared that they were not certain of the guilt of a single client. A far more important problem is whether a lawyer should advocate the passage of legislation which he personally considers vicious. Indeed, the underlying question, to which lawyers and laymen ought to be devoting themselves, is this. How far can the State ascertain the proper course of action by limiting itself to hearing paid representatives of the persons directly interested, financially or otherwise; or should the State also call in and pay trained men to investigate the question independently? The solution of this question will affect not only lawyers, but other professions as well. Medical experts, for instance, might cease to be hired by millionaires to prove them insane, or by the prosecuting attorney with the opposite purpose, but might be employed by the court to make an impartial inquiry into the mental condition of a prisoner. In short, it may be that we have carried the notion of litigation as a contest of wits between two sides so far that the interests of society have not been adequately safeguarded.

If laymen have erred in concentrating on minor points, lawyers have been far too ready to deny laymen any right to discuss law at all. It is just as if school-teachers should maintain that parents and citizens in general have no concern in the problems of education. The time has come to close the gulf in American life between the legal profession and the people who are ruled by laws. Law is the surface of contact where the pressure of society bears upon the individual. Doubtless, he attributes to the law many of the features in this pressure to which he objects, whereas they actually result from the social structure itself. The man who feels wronged by a prosecution for bigamy, or for stealing bread when he is starving for lack of employment, cannot expect to change the law without also changing the views of the community on monogamous marriage and the organization of industry. These institutions of society show themselves in the law just as the veins in a block of marble show themselves at the surface, but it is as futile for him to blame the law for “capitalism,” private property, or our present semi-permanent marriages as to try to get rid of the veins by scraping the surface of the marble. On the other hand, there are aspects of law which do not correspond to any existing social requirements or demands, and the layman has good cause to offer his opinion. And it may be worth listening to. The onlooker often sees most of the game. Although the layman may lack technical knowledge, he can appreciate the relation of law to his own department of human activity—business, social service, health—in ways that are difficult for the lawyer who is absorbed in the pressing tasks of each day. Moreover, the lawyer’s habitual and necessary obligation to conform to existing laws naturally inclines him to overlook their defects, which are obvious to those who can spend in detached criticism the same time which he requires for practical application. Modern medicine was created by Pasteur, who was not a doctor; modern English law by Bentham, who was a lawyer to the extent of arguing one case and who was edited by Mill, a philosopher and economist.

Knowledge is no longer a matter of water-tight compartments. “All good work is one,” says Wells in “Joan and Peter.” Law touches psychology in its treatment of the defective and insane, medicine and surgery in industrial accidents and disease, political science in municipal corporations, economics in taxation, philosophy in its selection of the purposes it should strive to accomplish. And this is a meagre list. The greatest need of American law is the establishment of means for intelligent mutual understanding and effective co-operation, not merely between lawyers and experts in such other fields as those mentioned, but between lawyers and the mass of our population, who fill the jails, pay the taxes, drink city water, get hurt in factories, buy, sell, invest, build homes, and leave it all to their children when they die.

For these men and women have a right to complain of our law. Its evils are not those commonly decried, lawyers to defend the guilty, reliance on precedents instead of common sense, bribed judges. The real defect is failure to keep up to date. Many existing legal rules have the same fault as New York surface-cars before the subway or Hoboken Ferries before the tubes. They were good in their day, but it has gone by and they cannot handle the traffic. The system formulated by Story and Kent worked well for the farms, small factories, and small banks of their time, but the great development of national resources and crowded cities presented new situations unsuited to the old legal rules, and kept men too busy for the constructive leisure necessary for thinking out a new system. The law became a hand-to-mouth affair, deciding each isolated problem as it arose, and often deciding it wrong. Yet lawyers were satisfied with law, just as business men with business. Then came the agitation of the last fifteen years, which has at least made us discontented about many things. The next task is to stop calling each other names, sit down together, think matters through to a finish, and work together to complete the process which is farther along than we realize, of making over the common law system of an agricultural population a century ago to meet the needs of the city-dwelling America of to-day.

A first step toward co-operation would be more discussion of law in the press. Several years ago Charles E. Hughes in a public address said that one reason why courts and lawyers were so unpopular in this country was the unfamiliarity of the people with what they were doing. Outside of criminal prosecutions, divorces, and large constitutional cases, newspapers give very little attention to legal questions, and even these cases are presented fragmentarily with almost no attempt to present their historical background and the general principles at issue. There is nothing to compare with the resumé of trials and decisions which appears from day to day in the London Times, no popular exposition of legal problems such as Woods Hutchinson has done for medicine or numerous writers for the achievements of Einstein. Surely law can be made as intelligible and interesting to the ordinary educated reader as relativity. It enters so intimately into human relationships that some knowledge of it is very important, not as a guide in specific transactions as to which a lawyer ought to be consulted, but as part of the mental stock-in-trade of the well-informed citizen. Wider realization of the difficulties of the work of judges and lawyers would bring about a friendlier and more helpful popular attitude.

The public might understand, for example, why law does not progress so conspicuously and rapidly as medicine or engineering. Part of the blame rests, no doubt, upon lawyers, who have been less active than other professions in discussing and applying new ideas, but the very nature of the subject is an obstacle to quick change. In law, progress requires group action; the individual can accomplish little. The physician who discovers a new antitoxin, the surgeon who invents a new method of operating for gastric ulcer, can always, if his reputation be established, find some patient upon whom to test his conception. Its excellence or its faults can be rapidly proved to his own mind and that of any skilled onlooker. And new ideas, if sound, mean a larger practice and money in his pocket. The lawyer gets no such rewards for improving the law, and has no such opportunities for experiment. If he is convinced by observation, wide reading, and long thinking, that arrest for debt should be abolished, or the property of a spendthrift protected by law from his creditors, or trial by jury abandoned except in criminal trials, he cannot try out these theories upon some client. He must sacrifice days from his regular work to persuade a whole legislature to test his idea upon thousands of citizens, and if the idea is a bad one, the experiment will be a widespread disaster. Consequently law reform always faces an instinctive and discouraging legislative opposition. Even after every State except two had adopted the Uniform Negotiable Instruments Law, the Georgia legislature refused to do so because the Act abolished days of grace, the old custom allowing a debtor three days beyond the time of payment named in his note. They said that when a man had promised to pay a debt on May 1, it was un-American not to let him wait till May 4. Again, a committee of very able New York lawyers recently drew a short Practice Act setting forth the main requirements for the conduct of a law-suit, and leaving the details to the judges, who may be supposed to know more about their own work than the legislature. Similar laws have long been in successful operation in England, Massachusetts, and Connecticut, whereas the existing New York Code of Civil Procedure with its thousands of sections has been a vexatious source of delay and disputes in the press of urban litigation. The new measure was an admirable and thorough piece of work, endorsed by the Bar Associations of New York City and the State. Yet it was killed by the age-long opposition of the country to the town. Upstate lawyers, less harassed by the old Code because of uncrowded rural dockets, objected to throwing over their knowledge of the existing system and spending time to learn a new and better one. The legislature hated to give more power to the courts. As a result, the new bill was scrapped, and nothing has been done after years of agitation except to renumber the sections of the old Code with a few improvements.

Another factor in law reform is the existence of fifty legal systems in one nation. Even if the law is modernized in one State, the objectionable old rule will remain in the other forty-seven until their legislatures are persuaded by the same tedious process. On the other hand, this diversity has its merits. Some of the progressive Western States serve as experiment stations for testing new legal and governmental schemes. Still more important, the limitations on legal experimentation are somewhat offset by the opportunities for observation of the workings of different legal rules in neighbouring States. The possibilities of this comparative method for judging the best solution of a legal problem have not yet been fully utilized. For example, a dispute has long raged whether it is desirable to compel a doctor to disclose professional secrets on the witness-stand without the patient’s consent. About half the States require him to keep silent. The reasons given are, that patients will seek medical aid less freely if their confidences may be disclosed; doctors would lie to shield their patients; some doctors are hired by employers to treat workmen injured in accidents and will try to get evidence on behalf of the employers if they are allowed to testify. So far, the discussion has turned on the probability or improbability that these arguments represent the facts, and neither side has collected the facts. The discussion could be brought down to earth by an investigation in New York which has the privilege, and Massachusetts, where secrecy is not maintained. Are doctors less consulted in Massachusetts, do they perjure themselves, do they ingratiate themselves with workmen to defeat subsequent accident suits? Statistics, personal interviews with judges and physicians, and examination of the stenographic records of trials ought to give valuable assistance in determining which half of the States has the better rule.

Since law reform requires highly organized group action, some individual should be charged with the responsibility of organization. At present, it is everybody’s business. Judges are hearing cases all day and writing opinions at night, and they have no legislative position as in England, where they can draft bills and present them in the House of Lords. Individual lawyers carry little weight. The Bar Associations have accomplished much, but the work of their members is done without pay in the intervals of practice, and they have no official standing. The Attorney General is necessarily a partisan, representing the State’s side in litigation, with neither the time nor the duty to improve the law in general. The United States and the larger States badly need a Minister of Justice. All complaints of legal inefficiency would come to him, and he would be constantly collecting statistics of the cases in the courts and their social consequences, observing procedure personally, or through a corps of expert assistants, conferring with the judges and the Bar Associations, drafting or examining measures affecting the administration of justice and giving his opinion about them to the legislature, and charged with the general duty of ascertaining whether every person can find a certain remedy from the laws for all injuries or wrongs, obtaining right and justice freely and without purchase, completely and without denial, promptly and without delay.

Until we establish such an official, we can rely on three instruments of legal advance, each of which may be a point of co-operation between lawyers and laymen. Of the first, the Bar Associations, something has already been said. The second is the judiciary. Unfortunately, the tendency of the American antagonism to law to concentrate on personal topics has warped the prolonged discussion of this branch of our government during the last ten years, and, indeed, since 1789. Charges of corruption and incompetency against individual judges, and methods of getting a bad judge off the bench, have entirely obscured the problem of getting good judges on the bench. The power of judges to declare statutes unconstitutional and void makes them the controlling factor in our government, yet there is no country where less attention is paid to their selection and training. It is of no use to recall a poor judge by popular vote if the people are eager to put one of the same type in his place. Nothing need be added to the estimate in Bryce’s “Modern Democracies” of the unevenness of judicial personnel. The most obvious need, if the inferior judges are to be brought up to the level of the best men, is for higher salaries. But that alone is not enough to induce leaders of the bar to become judges. No salary could be so high as the income of successful metropolitan lawyers. The time has come for greater willingness on their part to retire from a large practice in middle life and devote their talents to judicial work. And even this will be useless, unless selection is based on merit. Our system of an elective judiciary is probably too deeply rooted to be entirely abandoned, though it is clear that legal talent is not a quality, like executive ability, readily capable of being appraised by the electorate. On the other hand, it is not altogether certain that State governors would appoint judges without regard to partisan considerations. An interesting compromise plan has been suggested, that there should be a Chief Justice, elected by the people, who should be in effect the Minister of Justice already described. All the other judges would be appointed by him, for life or for long terms, while his responsibility for wise selections would be secured by a short term or even by the recall. A governor does so many tasks that his judicial appointments do not play a large part in the popular judgment of his record, but the Chief Justice would stand or fall on the merits of the administration of law under his management.

Moreover, we do not deal fairly by the judges chosen under existing systems. After they have been selected, they should have more opportunity to study the special duties of their position before beginning work, and more leisure amid trials and opinions for general legal reading and for observation of the complexities of modern life which are inevitably involved in their decisions, especially on constitutional questions. Most litigation grows out of urban and industrial conditions, with which State supreme court judges may easily get out of touch, if they remain continuously in the State House in a small upstate city like Springfield, Albany, or Sacramento, with little opportunity to visit the factories and tenements of Chicago, New York, and San Francisco. It may also be doubted whether our usual system which restricts some judges to trials and others to appellate work is wise; an occasional change from one to the other is both refreshing and instructive. Judges frequently complain of the monotony of their work, cooped up with a few associates of similar mental interests, so that the atmosphere may acquire the irritability of a boarding-house. It is not generally understood how much judges are cut off from other men. Close intimacy with their former friends at the bar or with wealthy business men who may have cases before them, is sure to cause talk. Graham Wallas’s suggestion of an occasional transfer to active work of a semi-judicial character, like Judge Sankey’s chairmanship of the English Coal Commission, seems valuable. Our Interstate Commerce Commission would provide such an opportunity. Finally, the existing gulf between courts and law schools might be narrowed by summer conferences on growing-points in the law, where each side could give much out of its experience to the other.

The remaining instrument of progress is the law schools. “Legal education,” says Bryce, “is probably nowhere so thorough as in the United States.” The chief reasons for this success are two, the professional law teacher, who has replaced the retired judge and the practising lawyer who lectured in his spare hours; and the case-system of instruction. This method is not, as is popularly believed, the memorization by the students of the facts of innumerable cases. It imparts legal principles, not on the say-so of a text-book or a professor, but by study and discussion of the actual sources of those principles, the decisions of the courts. The same method in the Continental Law would result in a class-room discussion of codes and commentators, which are there the sources. One of the most interesting signs of its success is its spread from law into other sciences such as medicine. Books based on the study of concrete situations are used in public schools for the study of geography and hygiene, and charitable societies work out the general needs of the community from the problems of individual families. This system has superseded in all the leading law schools the old methods of lecturing and reading treatises. Its most conspicuous service is, of course, vocational, the training of men whose advice a client can safely accept. Already some States have required a law-school degree as a condition of admission to the bar, and the old haphazard law-office apprenticeship will eventually disappear, although the question of how far a man who is earning his living should be allowed to study law in his spare hours at a night law school whose standards must usually be lower than a full-time school remains as a difficult problem in a democratic country. Efficiency of training conflicts with equality of opportunity. A second service of the leading law schools is the modernization of the law through the production of books. A great example of this is the “Treatise on Evidence,” by John H. Wigmore, dean of Northwestern Law School, which is every day influencing courts and renovating the most antiquated portion of the common law.

Of late years, the need for fresh changes in method has become plain. Christopher Columbus Langdell, the inventor of the case-system, laid down two fundamental propositions: “First, that law is a science; second, that all the available materials of that science are contained in printed books.” Experience has proved that he was right in believing that attendance in a lawyer’s office or at the proceedings of courts was not essential to a legal education. But the scope of legal study must now extend beyond printed books, certainly beyond law books. Since law is not an isolated department of knowledge, but a system of rules for the regulation of human life, the truth of those rules must be tested by many facts outside the past proceedings of courts and legislatures. Not only law in books but law in action has to be considered, and after learning the principles evolved by a process of inclusion and exclusion in the decisions or by intermittent legislative action, the scholar must find how those principles actually work in the bank, the factory, the street, and the jail. The problem is still debated, whether this can better be done in the pre-legal college course or by the use of non-legal experts in the law schools, or whether the necessary material should be assimilated and presented by the law teachers themselves. Yet this widening of the content of legal study does not in the least impair the validity of Langdell’s method, the systematic investigation of the sources of law at first hand, whether those sources be found in the reports and statutes which he had in mind, or in the economic, social, and psychological facts which have demanded attention in recent years.

Something must be said in closing of those portions of the law where change has been most necessary. Of these our criminal law is easily the most disgraceful. Its complete inability to perform its task has been exhaustively demonstrated by the opening chapter of Raymond Fosdick’s “American Police Systems.” The lawyers and judges are only partly to blame, for their work forms only the middle of three stages in the suppression of crime. The initial stage of arrest and the final stage of punishment are in the hands of administrative officials, beyond the control of the bench and bar. Many criminals are never caught, and the loss of public confidence in the justice or effectiveness of prisons makes juries reluctant to convict. Yet the legal profession is sorely at fault for what takes place while the prisoner is in the dock. The whole problem calls for that co-operation between lawyers, other experts, and laymen, of which I have already spoken. Unless something is soon done, we may find crime ceasing to be a legal matter at all. Even now, many large department stores have so little belief in the criminal courts and prisons that they are trying embezzlers and shoplifters in tribunals of their own, and administering a private system of probation and restitution. The initial step is a reformulation of the purpose of punishment. Twenty-five years ago, Justice Holmes asked, “What have we better than a blind guess to show that the criminal law in its present form does more good than harm?”

One serious reason for its breakdown has been the creation of innumerable minor offences, which are repeatedly committed and almost impossible to suppress. The police are diverted from murders and burglaries to gambling and sexual delinquencies, while the frequent winking at such breaches of law destroys the essential popular conviction that a law ought to be obeyed just because it is law. The Chief of Police of New Orleans told Raymond Fosdick, “If I should enforce the law against selling tobacco on Sunday, I would be run out of office in twenty-four hours. But I am in constant danger of being run out of office because I don’t enforce it.” So they were hanging green curtains, which served the double purpose of advertising the location of the stands and of protecting the virtue of the citizens from visions of evil.

At the present time we have thrown a new strain on the criminal law by the enactment of nation-wide prohibition. The future will show whether the main effect of this measure will be an increase in disrespect and antagonism for law, or the ultimate removal of one of the chief causes of lawlessness and waste. Unfortunately, the perpetual discussion of home-brew receipts and hidden sources of supply has prevented a general realization that we are witnessing one of the most far-reaching legislative experiments of all time. What we ought to be talking about is the consequences of prohibition to health, poverty, crime, earning-power, and general happiness. It is possible, for instance, that total abstinence for the working classes coupled with apparently unlimited supplies of liquor for their employers may have the double consequence of increasing the resentful desire of the former to wrest the control of wealth from those who are monopolizing a time-honoured source of pleasure, and of weakening the ability of the heavy-drinking sons of our captains of industry to stand up in the struggle against the sober brains of the labour leaders of the future. Prohibition may thus bring about a striking shift of economic power.

The delays, expense, and intricacies of legal procedure demand reform. The possession of a legal right is worthless to a poor man if he cannot afford to enforce it through the courts. The means of removing such obstacles have been set forth by Reginald H. Smith in “Justice and the Poor.” For instance, much has already been accomplished by Small Claims Courts, where relief is given without lawyers in a very simple manner. When a Cleveland landlady was sued by a boarder because she had detained his trunk, she told the judge that he had set fire to his mattress while smoking in bed and refused to pay her twenty-five dollars for the damage. The judge, instead of calling expert witnesses to prove the value of the mattress, telephoned the nearest department store, found he could buy another for eight dollars, and the parties agreed to settle on that basis. Again, family troubles are now scattered through numerous courts. A father deserts, and the mother goes to work. The neglected children get into the Juvenile Court. She asks for a separation in the Probate Court. A grocer sues her husband for food she has bought, before a jury. She prosecutes him before a criminal court for non-support, and finally secures a divorce in equity. One Court of Domestic Relations should handle all the difficulties of the family, which ought to be considered together. Much of the injustice to the poor has been lessened by legal aid societies, which have not only conducted litigation for individuals but have also fought test-cases up to the highest courts, and drafted statutes in order to protect large groups of victims of injustice. The injury done to the poor by antiquated legal machinery is receiving wide attention, but it is also a tax on large business transactions which is ultimately paid by the consumer. Reform is needed to secure justice to the rich.

The substantive law which determines the scope of rights and duties has been more completely overhauled, and many great improvements have been accomplished. Relations between the public and the great corporations which furnish transportation and other essential services are no longer left to the arbitrary decisions of corporate officers or the slow process of isolated litigation. Public service commissions do not yet operate perfectly, but any one who doubts their desirability should read a contemporary Commission Report and then turn to the history of the Erie Railroad under Jim Fiske and Jay Gould as related in “The Book of Daniel Drew.” The old fellow-servant rule which threw the burden of an industrial accident upon the victim has been changed by workmen’s compensation acts which place the risk upon the employer. He pays for the injured workman as for a broken machine and shifts the expense to his customers as part of the costs of the business. The burden is distributed through society and litigation is rapid and inexpensive. Unfortunately, no such satisfactory solution has been reached in the law of labour organizations, but its chaotic condition only corresponds to the general American uncertainty on the proper treatment of such organizations. It is possible that just as the King, in the Middle Ages, insisted on dragging the Barons into his courts to fight out their boundary disputes there, instead of with swords and battleaxes on the highway, so society which is the victim of every great industrial dispute will force employers and workmen alike to settle their differences before a tribunal while production goes on. The Australian Courts of Conciliation have lately been imitated in Kansas, an experiment which will be watched with close interest.

Less importance must be attached, however, to the development of particular branches of the law than to the change in legal attitude. The difference between the old and the new is exemplified by two extracts from judicial decisions which were almost contemporaneous. Judge Werner, in holding the first New York Workmen’s Compensation Act unconstitutional, limited the scope of law as follows:

“This quoted summary of the report of the commission to the legislature, which clearly and fairly epitomizes what is more fully set forth in the body of the report, is based upon a most voluminous array of statistical tables, extracts from the works of philosophical writers and the industrial laws of many countries, all of which are designed to show that our own system of dealing with industrial accidents is economically, morally, and legally unsound. Under our form of government, however, courts must regard all economical, philosophical and moral theories, attractive and desirable though they may be, as subordinate to the primary question whether they can be moulded into statutes without infringing upon the letter or spirit of our written constitutions.... With these considerations in mind we turn to the purely legal phases of the controversy.” (Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 287, 1911.)

A different attitude was shown by the Supreme Court of the United States in its reception of the brief filed by Mr. Louis D. Brandeis on behalf of the constitutionality of an Oregon statute limiting woman’s work to ten hours a day. Besides decisions, he included the legislation of many States and of European countries. Then follow extracts from over ninety reports of committees, bureaus of statistics, commissioners of hygiene, inspectors of factories, both in this country and in Europe, to the effect that long hours of labour are dangerous for women, primarily because of their special physical organization. Following them are extracts from similar reports discussing the general benefits of shorter hours from the economic aspect of the question. Justice Brewer said:

“The legislation and opinions referred to in the margin may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a widespread belief that woman’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil. Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is a peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking. At the same time, when a question of fact is debated and debatable, and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge.” (Muller v. Oregon, 208 U. S. 412, 420, 1907.)

The decision displays two qualities which are characteristic of the winning counsel since his elevation to the bench; it keeps its eye on the object instead of devoting itself to abstract conceptions, and it emphasizes the interest of society in new forms of protection against poverty, disease, and other evils. To these social interests, the property of the individual must often be partly sacrificed and in recent years we have seen the courts upholding the guarantee of bank deposits, State regulation of insurance rates, and suspension of the right of landlords to recover unreasonable rents or dispossess their tenants. All this would have been regarded as impossible fifty years ago.

These extensions of governmental power over property have been accompanied by legislation severely restricting freedom of discussion of still more radical types of State control. It is argued that the right of free speech must face limitation like the right of the landlord. The true policy is exactly the opposite. Not only is it unjust for the State to carry out one form of confiscation while severely punishing the discussion of another form, but in an age of new social devices the widest liberty for the expression of opinion is essential, so that the merits and demerits of any proposed plan may be thoroughly known and comparisons made between it and alternative schemes, no matter how radical these alternatives may be. A body of law that was determined to stand still might discourage thought with no serious damage; but law which is determined to move needs the utmost possible light so that it may be sure of moving forward.

No one has expressed so well the new importance of social interests, and the value of freedom of speech; no one, indeed, has expressed so nobly the task and hopes of American Law, as the man of whom it is said that among the long list of American judges, he seems “the only one who has framed for himself a system of legal ideas and general truths of life, and composed his opinions in harmony with the system already framed.” (John H. Wigmore, “Justice Holmes and the Law of Torts,” 29 Harv. L. Rev. 601.) Yet no one has been more cautious than Justice Holmes in warning us not to expect too much from law.

“The law, so far as it depends on learning, is indeed, as it has been called, the government of the living by the dead. It cannot be helped, it is as it should be, that the law is behind the times. As law embodies beliefs that have triumphed in the battle of ideas and then have translated themselves into action, while there is still doubt, while opposite convictions still keep a battle front against each other, the time for law has not come; the notion destined to prevail is not yet entitled to the field.” (“Collected Legal Papers,” 138, 294.)

It is the work of the present generation of American lawyers to be sure that the right side wins in the many conflicts now waging. We cannot be certain that the law will make itself rational, while we remain as inactive as in the past, absorbed in our own routine, and occasionally pausing to say, “All’s right with the world”; for, to quote Holmes once more, “The mode in which the inevitable comes to pass is through effort.”

Zechariah Chafee, Jr.