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.