There is a little light over the horizon. A new organization called
The Federated Press, which endeavours to “get the news in spite of
the newspapers and the great news agencies,” announces that already
two hundred editors all over the world are using its service. It is
too soon to tell how successful this enterprise will be, but it is a
ray of promise, because it is an association of working journalists
and not a vague aspiration of reformers and uplifters. Until some
such organization does become powerful and by practical labour
make an impression on the daily paper, we shall have to depend for
enlightenment on a few weekly and monthly periodicals of relatively
small circulation. Most of the popular weeklies and monthlies are
as bad in their way as the newspapers, but they aim chiefly at
entertainment; their treatment of the news in special articles
and editorials is a subordinate matter, and their chief sin is not
dishonesty but banality. The periodicals which do handle the news,
always honestly, usually with intelligence, the _Nation_, the _New
Republic_, the _Freeman_ and one or two others, must have an influence
greater than can be measured by their circulation; for though the
giant press laughs at the cranky little Davids with their vicious
radical ideas, and though it is too strong to be slain or even severely
wounded, yet it cannot be quite insensible to the stones that fly from
those valorous slings. It is, however, an indication of the low mental
level of America that the combined circulation of these journals, which
are, moreover, largely subscribed for by the same readers, is less than
that of a newspaper in a second-rate city. Two of them are endowed
or subsidized by liberal men of means and none of them is shiningly
prosperous. An intelligent populace would buy them by the million. So
we leave the responsibility where, after all, it belongs. The American
press is an accurate gauge of the American mind.
JOHN MACY
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.