Magna Carta, and Other Addresses

by William D. Guthrie

Some of our correspondents blame the courts for the "law's delay," yet there is no defect in our system for which competent judges are less responsible. In most instances of delay in civil cases, the blame belongs to the lawyers. Nothing has done more to bring the administration of justice into disrepute than the practice of adjourning cases term after term and year after year on excuses which sometimes are not well founded. There need be no unreasonable delay even in the city of New York, and would not be, if lawyers were ready to try their cases when they are first reached on the calendars. The judges are constantly complaining of the dilatoriness of the bar. Another cause of delay is the practice of bringing suits and taking appeals for the purpose of coercing settlements. A higher sense of professional responsibility ought to be cultivated, and there should be some severe penalty or professional ostracism for lawyers who abuse the process of the courts of justice and disregard the ethics of their profession.

In like manner, in criminal cases the real cause of delay in nearly every case is the failure or inability of prosecuting officers to press their cases diligently; and the frequent change in the personnel of our officeholders is likewise a cause of much delay. Whenever one official succeeds another, the period during which the new incumbent is learning what occurred before he came into office and familiarizing himself with the pending cases is so much time lost. Greater permanency in the tenure of office of prosecuting officers would probably conduce to greater speed and greater efficiency in the enforcement of the law. Nor can it be doubted that many public officials and their assistants do not feel the same degree of responsibility for the prompt dispatch of public business that they would feel if representing private clients. The remarks of Mr. Justice Scott in the recent case of People vs. Turley are indeed timely, and should be commended to the attention of all prosecuting officers throughout the state. He used the following language: "There is much well-justified complaint at the present time of the slowness with which the criminal law is enforced, and especially of the great length of time which is frequently permitted to elapse between a conviction and the review of the conviction by the appellate courts. Among persons not conversant with the rules of criminal procedure, the courts are not unnaturally, but most unjustly, charged with a large share of responsibility for this condition. The blame rests elsewhere. The appellate courts are powerless to act until the appeal is brought before them by those charged with that duty. When the matter is brought up for a hearing, the delay is ended, and the appeal is invariably promptly decided. The present is a particularly flagrant case. The defendant was convicted in March, 1909, and was almost immediately released on bail pending an appeal, under a certificate of reasonable doubt. The record is not voluminous, and the questions of law involved are neither difficult nor intricate, and yet the defendant has been at large for three years and a half before the appeal is brought on for argument. Of course under such circumstances the defendant was quite satisfied and was in no haste to have his appeal argued. The duty to bring it on promptly rested, as it rests in every case, upon the district attorney, who had it in his power at any time to force a hearing of the appeal by moving to dismiss it. This court has never shown itself to be unwilling to support and cooperate with the district attorney in compelling appeals in criminal cases to be argued with all reasonable promptness. The remedy for unreasonable delays in the final disposition of criminal appeals lies in his hands." [53]

A number of important murder cases will be readily recalled where years have elapsed between the conviction of the accused and the argument in the Court of Appeals. Not only does this unnecessary delay deprive the judgment of conviction of much of its effect as an example and deterrent precedent, but in cases of reversal and new trials evidence is sometimes lost, and the guilty thus escape. In the latest reported murder case from New York county, People vs. Lustig,[54] the defendant was convicted of murder in the first degree in June, 1910, but the appeal was not brought on for hearing in the Court of Appeals until June 14, 1912, when it was decided and reversed within two weeks after the argument, viz., on June 29, 1912. In the meantime, as we are informed, material witnesses had disappeared, and the defendant is now at large on his own recognizance, and probably will not be tried again!

Another case of apparently inexcusable delay is People vs. Koerner.[55] The crime of murder was committed in September, 1896. The defendant was indicted within a month thereafter, and was convicted of murder in the first degree on March 1, 1897. The appeal was argued in the Court of Appeals within four court months, on October 22, 1897, and the judgment was reversed on November 23, 1897. The case was then re-tried, and resulted in a judgment of guilty of murder in the second degree on March 15, 1898. The records of the courts show that the appeal from this judgment was not brought on for argument in the Appellate Division until December 12, 1906, and then resulted in an affirmance by that court on January 11, 1907, and that the appeal was not argued in the Court of Appeals until February 19, 1908, when the judgment was affirmed without opinion in less than three weeks!

Yet for the delays in these and similar cases the courts are criticized and their administration of criminal justice intemperately assailed by the press and other critics, notwithstanding the diligence of the judges in disposing of appeals when duly presented for their consideration.

It may be true that the pressure of innumerable cases compels the district attorney in New York county to delay the argument of appeals; but the remedy is to provide him with additional competent assistants and certainly not to indulge in indiscriminate criticism or unfounded abuse of the courts, or to resort to panaceas of reform in criminal procedure, which too often only multiply technicalities, deprive the individual of necessary protection, and create more or less confusion.

I shall now ask attention to the subject of injunctions in connection with strikes. I shall not argue the proposition that strikers in industrial controversies, or labor and labor organizations should not be above the law, or a law unto themselves. I assume that this is still a self-evident proposition in this state and may still be taken for granted. History certainly teaches us that in a free country no class can safely be released from the duty of obeying the laws, and that if disobedience be permitted in favor of the laboring classes, the industrious, honest and law-abiding laborer will be the worst sufferer in the long run. Nor will time be taken to point out that no civilized community can long permit any class to maim, or murder, or destroy property, or violently prevent others from earning their living, in order to coerce compliance with the demands of that class.

There would, of course, never be occasion for the use of injunctions in labor disputes if there were no threats of violence and no danger of injury to persons or property. If the labor organizations of this country will now earnestly, effectively and sincerely cooperate with the bar in the endeavor to put an end to violence and riots, which are the unfortunate but apparently inevitable attendants of every protracted modern strike, there will no longer be any occasion for condemning the courts on account of the issuance of injunctions, for there will then be no necessity for injunctions.

One aspect of the injunction problem is emphasized in the correspondence now submitted, and should be dealt with here. It is the matter of giving notice to the defendants before an injunction order is granted. Recently, when the United States Supreme Court adopted its new rules, including one as to injunctions, Mr. Gompers and other labor leaders loudly proclaimed that they had secured a great victory. Thus, Mr. Gompers is reported in the "Literary Digest" of November 16, 1912, as calling the new rule a reform and "a step in the right direction, and one of the things labor has long been fighting for." But, as every one familiar with the subject well knows, there is nothing in the new rules that materially changes the pre-existing practice in regard to injunctions. The authoritative treatises on federal equity procedure by Mr. Foster and Mr. Street conclusively show this. No case has been cited to us and we have found none where the defendants enjoined were not granted by the courts as much facility in moving to dissolve or modify injunction orders as is provided for in the new rule. The learned and impartial editor of the "New York Law Journal" well said in the issue of December 11, 1912: "The only portion of the new procedure which has attracted the attention of the daily press is the rule regarding preliminary injunctions. This, however, is no more than an adoption of good New York practice, and, indeed, of good equity practice everywhere, viz.: that no ex parte injunction shall go out except as a stay-order to show cause why a preliminary injunction should not issue."

The case most often cited by labor leaders is known as the Debs case growing out of the Pullman strike at Chicago in 1894. If any fair-minded critic of the courts will take the trouble to read the unanimous, patriotic and inspiring opinion of the Supreme Court of the United States in the Debs case,[56] or what ex-President Cleveland wrote on the subject in his book on "Presidential Problems," published in 1904, he will at once realize that the issuance of the injunction order and the subsequent punishment of Debs and his associates for deliberately and defiantly disobeying it were both proper and necessary.