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THE MAN IN COURT
by
FREDERIC DEWITT WELLS
Justice, Municipal Court of New York City
G.P. Putnam's Sons
New York and London
The Knickerbocker Press
1917
Copyright, 1917
by
Frederic Dewitt Wells
The Knickerbocker Press, New York
To
MY FRIEND
CHARLES E. GOSTENHOFER
OF THE NEW YORK BAR
IN ACKNOWLEDGMENT OF HIS AID AND SUGGESTIONS
THIS BOOK IS DEDICATED
INTRODUCTION
The author has tried to show the point of view of the ordinary man in
a law court, as the various proceedings of a trial take shape before
him. To the initiated, the whole book may seem too obvious; but it has
not been written for them, but for those to whom these proceedings are
unfamiliar. There are many who have a certain curiosity about the
courts, and at the same time a real respect for justice, mingled with
amusement at the panoplies and antiquated forms of legal procedure.
F. DEW. W.
NEW YORK,
_January, 1917_.
CONTENTS
PAGE
INTRODUCTION iii
I.--A NIGHT COURT 3
II.--THE CIVIL COURT 21
III.--THE JUDGE 39
IV.--THE ANXIOUS JURY 57
V.--THE STRENUOUS LAWYER 75
VI.--THE WORRIED CLIENT 93
VII.--PROGRAMS AND PLEADINGS 111
VIII.--PICKING THE JURY 129
IX.--OPENING THE CASE 149
X.--THE CONFUSED WITNESS 165
XI.--THOSE TECHNICAL OBJECTIONS 183
XII.--THE MOVEMENTS IN COURT 201
XIII.--ELOCUTION 219
XIV.--THE HEAVY CHARGE 235
XV.--THE TRUE VERDICT 251
XVI.--LOOKING BACKWARD 265
I
A Night Court
In the Night Court the drama is vital and throbbing. As the saddest
object to contemplate is a play where the essentials are wrong, so in
this court the fundamentals of the law are the cause of making it an
uncomfortable and pathetic spectacle.
The women who are brought before the Night Court are not heroines, but
the criminal law does not seem better than they. It makes little
attempt to mitigate any of the wretchedness that it judges; in many
cases it moves only to inflict an additional burden of suffering. The
result is tragedy.
The magistrate sits high, between standards of brass lamps. His black
gown, the metal buttons and gleaming shields of the waiting police
officers, the busy court officials behind the long desks on either
hand tell of the majesty of the law.
In front of the desk but at a lower level is a space of ten or twelve
feet running across the court-room in which are patrolmen,
plain-clothes men, detectives, women prisoners, probation officers,
reporters, witnesses, investigators, and lawyers. Beyond in the
court-room a large crowd is on the benches. There are witnesses,
brothers and sisters, friends of the prisoners waiting to see whether
they go out through the street entrance or back through the strong
barred gate seen through the door on the left. Also there are the
"sharks" waiting to follow out the released prisoners, to prey upon
them as the circumstances may favor; and a number of curiosity seekers
watching intently. For them it can be nothing but a morbid dumb show,
for they are so far from the bench that not a word of the proceedings
could be heard. Only once in a while the shrieks and imprecations of a
struggling hysterical woman as she is hurried out of court can
enliven the scene.
Fortified with a letter of introduction to the judge and a disposition
that will not be too easily shocked at seeing conditions of life as
they actually exist, the spectator may find his way past the policeman
at the gate in the rail. It clicks behind him ominously and he wonders
whether he will have difficulty in getting out. Finally through clerks
and officials who become more kindly as they learn he is a friend of
the judge, he is seated in a chair drawn up beside the bench. The
magistrate is a hearty round-faced man who seems almost human in spite
of his gown and the dignity of his surroundings. The court looks
different from this point of view and he may easily watch the judicial
enforcement of the law supreme.
The organization of these courts is simple. There are not many rules
or technicalities. The judges are patient, hard working,
understanding, and efficient. The trouble is with the laws they are
called upon to administer: Laws which are as absurd, as farcical, and
as impracticable as the plot of the lightest musical comedy.
At first the visitor can hardly understand what is going on. A
pale-faced man is in the witness chair, on his left a bedraggled
little woman is standing before and below the judge, her eyes just
level with the top of the desk. Clerks are coming with papers to be
signed: "commitments," "adjournments," "bail bonds"; others are trying
to engage his attention. In the meanwhile the case proceeds.
"I inform you," says the judge to the woman, "of your legal rights,
you may retain counsel if you desire to do so and your case will be
adjourned so that you may advise with him and secure witnesses, or you
may now proceed to trial. Which will you do?"
She murmurs something. She is pale-faced with sullen eyes, drooping
mouth, an over-hanging lip. A sad red feather droops in her hat.
"Proceed," says the judge; and to the policeman who is called as a
witness, "You swear to tell the truth, the whole truth mm-mm-mm--you
are a plain-clothes man attached to the 16th Precinct detailed by the
central office, what about this woman?"
"At the corner of Fifteenth Street and Irving Place," says the
witness, "between the hours of 10:05 and 10:15 this evening I watched
this woman stop and speak to three different men. I know her, she has
been here before your Honor."
"What do you say?" the judge asks the woman. She is silent.
"What do you work at?"
"Housework, your Honor."
"Always housework; it is surprising how many houseworkers come before
me." She smiles a sickly smile.
"Take her record. Next case," says the judge. Outside it is a cold
sleeting night in early March.
"Witnesses in case of Nellie Farrel," calls the clerk.
Nellie Farrel stands before the desk beside a policeman; she is tall
with fair waving hair. She must have been pretty once; even now there
is a delicate line of throat and chin. But her eyes are hard and on
her cheeks there are traces of paint that has been hastily rubbed off.
She looks thirty; she is probably not more than twenty.
A callow youth, who seems preternaturally keen, swears that on
Thirteenth Street between Fifth Avenue and University Place the woman
stopped and spoke to him; and he tells his story as though it were
learned by rote.
"Do you know the officer who made the arrest?" the judge asks him.
"I do." A suspicion arises that there may be an interest between the
witness and the policeman.
A dark-haired, smooth-faced woman who is standing by the prisoner
says: "Your Honor, she's my sister. I'm a respectable woman, my
husband is a driver. I have three children. It's disgrace enough to
have the likes of her in the family. If you'll give her another
chance I'll take her home with me; my husband is here and he's
willing." The accused looks down piteously.
"Discharged on probation," says the judge, and the family go out.
"That's the third time that's happened to her," whispers a clerk.
"Every time the sister comes up like a good one."
A horrible old woman with straggling gray hair, shrivelled neck, and
claw-like hands grasps a black shawl about her flat chest. "Mary,"
says the judge, "thirty days on the island for you."
"Oh, your Honor, your Honor, not the workhouse. Oh, God, not the
workhouse," and she is borne out screaming and fighting and invoking
Christ to her aid. The judge turns and says in explanation, "an old
case, an example of what they all may come to."
A dark-haired little French woman is brought in with crimson lips,
bold black eyes, and expressive hands. A detective testifies that he
went with her into a tenement house on Seventeenth Street west of
Sixth Avenue. Charge: Violation of the Tenement House Law.
"Qu'importe," says the woman. "I go in ze street. I am arrested. I
stay in ze house. I am arrested. I take ze room. I am arrested.
Chantage--Blackmail. C'est pour rire."
Who are these women who are brought in a crowd together? One of them
older than the rest is a foreigner plainly dressed in black silk with
a gold chain. She does not seem particularly evil, but rather
respectable. The others are in long cloaks or waterproofs hastily
donned and through which are glimpses of pink stockings. They have
hair of that disagreeable butter color which speaks of peroxide. There
has been a raid on a west-side street of a house of ill repute. Some
testimony is given and the older woman, the "Madam" is held in bail
for the action of the Grand Jury while the rest are held for further
evidence. The judge tells us there will probably not be enough
testimony and they will be released in the morning. But unless bail
is found they will spend the night in cells.
A nervous, excited woman comes in--two policemen are with her. She has
been arrested for disorderly conduct on Sixth Avenue near Thirty-first
Street. She has been fighting with a man who has also been arrested
and taken to the men's Night Court. Hers is a hard, tough face of the
lowest type.
"Why should you try to scratch the man's face? What did he do?" the
judge asks. "Is he your husband?"
"My husband, your Honor? Yes, I guess you can call Al that. We lives
up town and when I went out he says to me, 'Hustle, kid, you got to
hustle, the rent's due and if you don't get the money I'll break your
neck.' The slob won't work. Well, a night like this you couldn't make
a cent and I only had half a dollar and I wanted to get a bite to eat.
I hadn't had a thing since four o'clock, and then I met Al going down
Sixt' Avenue an' he tries to swipe me fifty cents off me and I was
that wild I wanted to tear him. I'm sorry; I guess it was my fault. I
don't want to see him jugged, so please let me off, your Honor, and I
won't make no trouble."
"Take her record," said the judge, "and hold her as a witness against
the man."
A string of women are brought in for sentence who have been having
finger prints taken in the adjoining room. The judge proceeds to
impose sentences according to the previous records which are shown.
Some of the women are those who have passed in front before. The
little bedraggled woman with the red feather has been arrested seven
times in sixteen months. Another has spent eight weeks in the
workhouse out of a period of seven months; another has been sent
already to the Bedford Reformatory; another has been twice to houses
of reform. Before the judge gives his sentence he refers the prisoners
to the probation officer, who talks with them in a motherly way.
After talking with the little prisoner she addresses the judge. "She
says its no use, your Honor, she does not want to reform--it will not
be worth while to put her on probation."
"Committed to the Mary Magdalene Home," says the judge, and the name
brings a startling surmise as to what He of Galilee would have said.
The foregoing is only a typical session of the court. Night after
night, from eight o'clock until one in the morning, the scene is
repeated. The moral effect and its reaction upon those who conduct the
proceedings--the judges, officers, and the police, cannot but be
deplorable; the evil done to those forcibly brought there could not be
over-estimated.
Substantially the law is that the women may not loiter in the streets
nor solicit in the streets, or in any building open to the public.
They may live neither in a tenement house nor in a disreputable house.
The law makes it a crime for the women to walk abroad or stay at home.
Their existence is not a crime, but only in an indirect way the law
makes them outlaws. Anyone wishing to prosecute or persecute finds it
easy to do so. The worst enemies of these unhappy women are to be
found, curiously enough, among both the best and the most evil people
in the community. The unspeakably depraved are the men who, either as
procurers, blackmailers, or the miserable men who live on a share of
their earnings. The excellent people who oppose any remedial
legislation which might relieve the situation, seem equally
responsible for the present condition, however well-intentioned they
may be.
One effect of the present system is the practically unchecked
transmission of disease. A reform in this direction would not solve
the basic problem, for there would remain full opportunities of
blackmail and extortion, but it might still remove a menace to the
health of the community which is probably more serious than
tuberculosis.
A statute to this end was enacted in New York State a few years ago:
an act for the medical examination of the women. It was declared
unconstitutional because of one word. It should have read, "the judge
may"; instead, it read, "the judge _must_." Far more difficult to deal
with is the opposition of the people who believe that the moral sense
of the community would be jeopardized by any laws suggesting that
prostitution is unavoidable.
In ironic contrast to the failure of legislation to prevent the spread
of disease, is the success of an ill-advised statute making adultery a
crime. Under it, a married man having relations with a prostitute and
the woman herself, are subject to criminal prosecution. It affords a
fresh field for extortion, how largely used it is impossible to say.
The history of the passage of the adultery act presents one of the
most ghastly jokes ever perpetrated by a State Legislature.
For years such a bill had been introduced in the New York Legislature
and had been passed by either the Assembly or the Senate without
comment and then quietly killed in the other house. It was obvious
that such a law could not be properly enforced and its blackmailing
possibilities were manifest, yet no one, not even Governor Hughes, who
was then in office, could be openly opposed to its passage.
The tender morality of the community would not allow a public
discussion.
It was said, at the time, that when the representative of a society
for the suppression of vice called on one member asking him to
introduce the bill, he declined to do so on the ground that he
represented a Fifth Avenue District and it would make him too
unpopular among his constituents. When the bill had been introduced by
another member and came up for final passage, it was decided, since
Governor Hughes had vetoed many political bills of members of both
houses, to put him in a dilemma. If the bill were presented to him he
would have to sign an absurd statute or declare himself the friend of
unrighteousness. He signed it and the bill became a law. Since its
enactment there have been ridiculously few convictions under it.
The successive carelessness, timidity, and levity of the Legislature
is depressing, but there is an encouraging increase of interest on the
part of the public. The average man is not merely interested in the
problem; he appears to take the sensible view that the "social evil"
is not so much a moral question as a condition, a problem to be met
like other problems. We have become less concerned with the private
morals of our fellow citizens than with their health, safety, and the
prevention of unnecessary suffering. We perceive that the courts are
only our agents and are not directly responsible for what they do;
they are following instructions given by our ancestors and which we
have neglected to abolish or modify.
The visitor leaves the Night Court with a strange sense of having his
social values overthrown. He feels almost sympathetic with the women
whom he has seen. They may be offenders against morals and the social
order, but they are human beings over whom the waters of civilization
seem to sweep with relentless flood. The frightful waste of life and
energy seems inexcusable. And it is as though some mill dam had burst
and was flowing in a terrific torrent down a river bed along which a
few are drawn white and drowned.
The ordinary man knows that the women who go under are such a small
proportion of those who escape, that it seems either a ghastly joke or
a terrible tragedy. The whole paraphernalia of the court-room merely
accents the contrast between those who are caught and those who go
free.
But all criminal courts are always unpleasant. And humanity if seen
only in the setting of a criminal trial would be a discouraging
object. Turning to the more civil court, we find an almost equal
unfitness between the courts and modern conditions.
II
THE CIVIL COURT
In a twenty-four-story office building, on a smooth gliding elevator,
up seventeen stories, down a low-ceilinged corridor, past fireproof
doors labeled: "Clerk's Office," "Judge's Chambers," "Witness Room,"
we find the typical modern court. The old idea of a very
pseudo-classic courthouse on a placid village green to which the
neighboring county squires have ridden, and where the jail is in the
cellar and the town recorder in the attic, is fast disappearing. The
old courthouse in the city, of red sandstone with battlements and
turrets, minarets, and a clock tower, seems out of date.
The white marble palaces of the higher courts wherein broad stairways,
paneled mahogany, stained glass, and soft noiseless carpets giving an
air of repose and refined culture, are not altogether consistent with
the modern spirit. The man on the street does not understand whether
the marble statues on the roof are symbols of justice or late
presidents of the United States. The usual courthouse of twenty years
ago was a mixture of armory and Gothic church.
In the larger courthouses where there are many terms or parts in one
building, there is an air of confusion. Rotundas, corridors,
stairways, and elevators are constantly filled with a moving crowd of
lawyers waiting for their cases to be tried, clients who have had
appointments, witnesses who have been subpoenaed to come to court
and when they get there find it is not one court, but thirty. The
latter are found wandering dazedly about asking anyone who will stop
to listen if they know in which part the case of Martin _vs._ Martin
is being tried. Lunch counters, telephone booths, and a feeling of awe
are in the building.
What that terror of a court of law comes from is difficult to analyze.
There is the impressive majesty of the law; always about a court is
the inspiring sense of something more than human. Even an empty
court-room is not as other rooms. Like an empty theater there remains
an atmosphere of glamour, of mystery, and yet equally true there
remains a substantial, strong odor of crowds.
It is said that every theater retains its own peculiar smell. The
scientific investigation of the psychology of odors is too subtle to
be understandable. The question of analyzing the exudations of a
nervous crowd seems interesting, but the remembrance of an anxious
humanity is always present. In former times the attendant placed a
small bunch of herbs and aromatic flowers on the judge's desk, and
glasses of the dried bouquets remained in a row for long periods.
Hygienically considered the courts are unsanitary. If the windows are
opened the cold air is apt to draw directly on the heads of the jury
and the stenographer. In summer the noise of city streets, the cars,
the elevated, the cries of children, the hand-organs, the flies, are
not at all conformable to the supposed dignity of the court. It is
well-known that the crowded and unhealthy conditions of the courts are
conducive to disease as well as discomfort to the inhabitants.
The connotations of the name court are generally impressive. There is
the suggestion of jail, of punishment, of something final, of absolute
judgment. Also it suggests the courtyard of a tenement house, an
alleyway or something shut in and confined. The philology is from the
old French cort or curt. It is curious that it means something narrow.
There are the suggestions of the lists, of heralds, of trumpets, of
banners and knights in armor, of prancing steeds, of fair ladies
watching, of joust, tournaments, and trials by battle. There is
something royal about the word. We think of pomp and magnificence and
purple robes, of kings on their thrones, with courtiers standing
about. The conception of Diety to the simple man who visualizes,
immediately takes on the form of a court. We speak of the Courts of
Heaven. The pictures of Godhead represent him as sitting in the center
on his raised throne with the surrounding tiers of attendant angels.
The modern court-room is only an adapted continuation of a medieval
idea. On the raised dais under an unsanitary and dusty canopy of green
plush sits the judge; instead of a sceptre he holds the gavel. This
gavel, by the way, is falling more and more into disuse. As a symbol
of authority, a little wooden hammer has become a trifle ludicrous. If
a judge were to shake it too violently there might be a fear on the
part of those watching that he was about to throw it at the spectators
or at one of the arguing lawyers.
The judge sits at an imposing high-railed desk with standard lights at
either corner. The top of the desk is usually above the level of the
eyes even of the lawyer standing. This is an arrangement which is
conventional and convenient; it would not be consistent with the
majesty of the law if the judge should be discovered writing a
personal note or taking a glance at the stock market reports in the
evening paper.
The judge's chair is ordinarily a revolving one with a dip backward.
Stationary chairs are trying, for those who have to remain quiet for
so many hours at a time, and the swinging back and forth and twisting
about gives a little relaxation.
In front of the judge's dais are the counselors' or lawyers' tables,
and at one side in front and below usually another table for
reporters. It is somewhat like the arrangement in baronial halls where
there was an upper and lower table and some sat below the salt and
others above.
On one side, opposite, but not as high, is the jury-box. This is a pen
with twelve seats within a high-sided inclosure like an old-fashioned
pew. What the object of the inclosure may be is uncertain, unless it
is a relic of a time when it was necessary to imprison the jurors.
Jury duty has doubtless always been arduous and disagreeable, and in
earlier days men were probably as anxious to escape serving on the
jury as they are to-day. In one of the courts, which was not supposed
to be for jury trials, twelve men once sat on a case without any
jury-box in plain chairs and at the side of the room. They were
extremely uncomfortable themselves; their legs were exposed and they
seemed shockingly unconventional.
Between the judge's desk and the jury-box is the witness chair, an
ordinary chair placed not quite so high, but beside the judge's and
where he can look down on the witness. The position of the witness
chair may be accountable for the feeling of protecting the witness
that exists in the minds of the judge and jury. There is a natural
sympathy for him, as though he were being attacked by the examining
counsel. The witness in former times stood in a little enclosed box
and in Italy, where court scenes are more intense, the prisoners to
this day in criminal trials testify from behind iron bars.
Below the witness chair is the stenographer. The former idea of the
aged scrivener or court clerk with white hair and green eye shade has
vanished. The modern stenographer, who keeps the record of a trial, is
probably an energetic young man, who has passed high on the civil
service list, knows something about law, is studying for a better
position, or is connected with a very profitable stenographers'
business on the outside.
The court proper is divided from the rest of the room by an iron or
wooden rail guarded by a jealous court attendant, who is always a
strong advocate of court etiquette and very properly maintains the
dignity of the court. He is in uniform with a shield or badge of
office conspicuously displayed and being taken from the civil service
list whereon war veterans and retired firemen or policemen have a
preference, is generally of a certain age. Naturally, being old and
having to stand so much, he has tender feet, and with the customary
effects of all secure and salaried positions, acquires both a slow and
shuffling gait and the ordinary characteristics of his class. He is
subject to many petty annoyances, foolish questions, repeated
inquiries, people talking or arguing, little disorders pursue him on
every hand.
The object of the attendant in the court is to maintain order and
preserve dignity. They are almost avid in their pursuit of the
ignoramus who comes in with his hat on his head or covers himself on
going out before he reaches the door. Their salaries are not large but
their duties are not arduous. They may seem solicitous to the judge
and sometimes overbearing to the litigants and lawyers, but they are
only in the position of the supes or ushers in the theater. Yet they
are understanding and wise as regards the human drama constantly
played before them.
The lighting of the court-room is unusually dramatic. There are no
foot-lights, but the best theory of stage lighting is that there
should be none. One of the most effective scenes in the modern
theater is the court setting in Galsworthy's _Justice_. The lighting
is indirect and the spots of red and green lights at the judge's desk,
the corners of the jury-box and the shaded ones at the clerk's elbow,
give a remarkable impression of mysterious terror.
Whatever may be the cause, there exists a marked resentment against
the courts. Not only is there a complaint as to the cloying
technicalities of procedure, the long and fatal delays of the law, the
absurd forms and mannerisms of the trial, but underneath them all a
fundamental distrust of justice itself. The complaint is heard of the
inequality of justice. That there is a law for the poor man and
another law for the rich. The stage gives expression to the feeling,
and modern literature voices it. The high-priced millionaire escapes
and the low-browed pickpocket goes to prison.
Cases are cited where the rich woman returning from a debauch of
European shopping with a few thousand dollars' worth of pearls sewed
in the lining of her winter bonnet is only fined, whereas the little
milliner from the lower end of the city is sent to jail for trying to
smuggle in a new coat. The impressario of art collections is caught at
a gigantic scheme for defrauding the government of thousands of
dollars on imported pictures. He hobbles into court and on the ground
of ill health escapes a prison sentence and is merely fined, while the
little Italian fruit vender is summarily jailed for bringing in a few
dried mushrooms. The high financier who wrecks a railroad or a bank
serves a light prison term and emerges like a phoenix to buy new
steamboat lines or float new enterprises. But the peddler on the East
Side who sells a few dollars' worth of stale fish is punished to the
limit of the law.
The facts exist and to the popular mind seem unexplainable. There
undoubtedly must be a reason, and what it is, is not hard to find. It
seems one of the mysteries of judging and of justice, as though there
were an unwritten law in the back of the human mind in favor of
property rights. There is an explanation and not an inequality of
justice. The facts are not as they are popularly stated or supposed to
be. The public gets only a portion of the picture, and from an
enormous group of cases, a few contrasted ones are picked out for the
sake of the dramatic effect. The limelight of public notice is upon
them and the softer lights and shadows are omitted. The public does
not see the gradation. On the one hand we see the rich woman, the
millionaire art dealer, the financial pirate being leniently dealt
with, on the other hand we see the little milliner, the Italian fruit
vender, and the peddler receiving harsh sentences.
The sharp contrasts make good newspaper stories that are appealing and
touching. What the public does not see is the whole picture of all the
cases of alleged inequality that come into court. These are only six
out of seven hundred cases, chosen because they are melodramatic.
There were nearly seven hundred other offenders that were let off
with suspended sentences or light fines, of whom nothing is heard,
but these three are conspicuous on account of their wealth, and the
cases of the milliner, the mushroom vender, and the peddler are
reported for the same reason--of being conspicuous. They are unusual
on account of the sentences. The harshness of their sentences is
remarkable. There may be special reasons. The six hundred and
ninety-odd who are punished lightly in the same way as the rich man
are not noticed.
As a matter of actual experience, the rich man has a harder time in
court than the poor man. The inequality of justice, if there be any,
is rather against him. Because he is rich and notorious the public
prosecutor cannot let him off. If, for example, a poor man who is
undoubtedly insane, commits a murder he is not tried, but is sent to
an asylum for the insane. If, after several years, he recovers and is
released, nothing is said about it; the public does not know. But let
it be a rich lunatic and the public prosecutor is bound to bring him
to trial. Public attention demands it. He may know him to be insane,
but he must still prosecute him. The jury declare him insane. After
years he is released from the asylum, the public thinks it a
miscarriage of justice, forgetting in the meanwhile the inconspicuous
poor man who unnoticed has gone through the same experience, and been
released years ago.
The delays of the law are partly due to the system of courts and
partly to the dullness of court procedure. The inefficiency of the
system of courts and judicial procedure is shown in the practical
workings of the civil courts of New York City. The antiquated
organization of all the courts is like a patchwork quilt where each
additional one has been added or increased as New York has grown from
a village below the Indian stockade at Wall Street to its present
size. So that there exist within the city limits now seven different
kinds of civil courts and five kinds of criminal courts, in nearly
each of which there is a separate set of rules, different customs,
and distinct methods of procedure, and of them all the most technical
and the most complicated are often those where they should be the most
simple and easy of understanding.
Wherever the court may be the surroundings are substantially the same.
The scene is laid and the carpenters have left. The spectators have
found their places. The stage is empty however, there is a sudden
bustle and shifting of feet, a rumor has gone abroad that something is
about to happen. The court attendants take their places. One of them
straightens up and with a commanding voice cries out: "Gentlemen,
please rise. Hear ye, hear ye, all persons having business draw near
and ye shall be heard." Enter his Honor, the Judge.
III
THE JUDGE
With a rustle of his gown and a bow to the court-room the judge takes
his seat on the bench. The trivial pleasures of being heralded and
having the spectators rise when he enters have lost their charm, but
he would feel uncomfortable without them. The gray-haired clerk hands
him the list of the cases for the day. The anxious court attendant
asks if he shall open a window. The judge sniffs audibly and orders
the steam heat to be turned off. The court attendant does so and
brings his Honor a glass of water. When the judge sits down in the
revolving chair he is on the bench and the court is in session.
The fact of the matter is the judge is a pretty decent sort of person.
The trouble is that the surroundings are all against him. In the
first place his whole job is one that makes him live up to a part. For
five or six hours a day he has to sit still in a stuffy court-room on
a leather chair under a silly canopy of wood or plush and pretend that
he is the whole thing, that he knows it all, and that whatever he
decides is absolutely right. Let him waiver or be uncertain in his
decisions and woe is it to him. No one thinks much of a judge who does
not know his business or at least does not pretend to know it.
How anyone who has been long on the bench can retain any sense of
proportion is remarkable. Whatever he says and does in court is final
and apparently approved. If his decisions are reversed they do not
affect him seriously; he has tried so many cases that were not
appealed, and the greater proportion of those that have been are
affirmed. The reversal comes a long time after and does not hurt his
feelings. In any event, he was trying to do the best he could and
human nature may be fallible, although, as far as he can see, the
whole world of the little court-room where he sits has conspired to
show him that he is divinely endowed.
His position is not exactly one of bluff, but he is the central figure
of the stage; like the actor's profession the judge's job makes him an
egotist. Take for example the essential elements of his knowledge of
the law. He is the _Jus Dicens_, the one saying the law, the name of
judge being derived from the two Latin words. He is supposed to know
the law, at least he ought to know court procedure, and the law of his
State thereon by heart. In New York State, for example, the Code of
Civil Procedure is five hundred thousand words long. He is bound to
take judicial notice without being told of all the statutes of the
State Legislature, which are being passed at the rate of six hundred a
year.
He is also supposed to know the laws of the United States passed at
Washington, and to be thoroughly familiar with the latest decisions of
the Supreme Courts of the United States, and those for the past 125
years. He must understand and look as though he knew beforehand any
decision of the courts of his own State cited, which are conveniently
and neatly printed in 219 New York Court of Appeals Reports, 173
volumes of the Appellate Division Reports, and 96 volumes of the
Miscellaneous Reports, to say nothing of the opinions and decisions of
other courts that are not printed at all. His knowledge of the law is
a fearful and wonderful thing; he must have an oceanic mind.
It is told that one of the leaders of the bar had formerly a young man
in his office who with advancing years and reputation was elected to
the bench. Before the first of January when he was to take his oath of
office, the old employer and friend sent for him. When he arrived he
was greeted as follows: "Joe, I've sent for you because I wanted to
see you before you become a judge. I am very fond of you and I wanted
to see you once again as you were, because after you go on the bench
you are bound to become a stuffed shirt, for they all do."
That so many escape is one of the wonders of human nature. That they
retain their humanity is due to a disposition of Providence to temper
the wind to the shorn lamb. The position necessarily takes away all
initiative. In politics the judge is recognized as being a "dead one."
After a few years on the bench only the exceptional man can fling off
the shackles of his profession and get back into real life. He ceases
from fighting, he is not energetic.
As a good judge he must be firm but restrained. He may not be too
emphatic. Every inducement is toward making him lazy, fat, and easy.
Before him everyone bows and waits for him to speak. He is the
absolute boss within the four walls of his court-room. The only
restraining influences are the reactions from the lawyers and
spectators who are before him. Their opinions can not be openly
expressed; they are reserved until afterwards. If a judge really has
any idea of the high esteem in which he is held, let him find out what
is being said of him after the case is over, as the clients and
lawyers are going down in the elevator, or what the rear benches have
been whispering.
He probably has a suspicion of this, but no matter how tolerant he
desires to be, there is the temptation to show that his authority is
supreme; that when the lawyers begin arguing a point on which he has
formed an opinion to cut them off; when the witness is trembling on
the stand as to whether the accident happened on a Thursday or a
Friday, to ask her, "Don't you know that Thursday was on the 16th of
April last year," which of course she does not. There is the
temptation to feel that he can never be wrong; that a question may be
reargued, but that he is not going to change his opinion.
The possibility is that the judge is a mild sort of bully. But it is
not always safe to go on the assumption that being a bully he is also
a coward. He may be, but on a trial the odds are too much in his
favor. If the lawyer wants to fight the judge, he has a great deal at
stake; he may awaken so strong a prejudice that the judge knowing the
rules of the game better than he does, may beat him on a technicality.
On the other hand it is a mistake for the lawyer to be subservient and
too cringing. Being a bully, the judge is apt to take advantage of his
position. The best policy is to appeal to his human instincts as a
man. He may be decent in spite of critics of the courts to the
contrary notwithstanding. If he is kindly treated he will respond.
In New York judges were appointed until about 1846, when there was a
popular upheaval and the constitution was changed, and they have ever
since been elective, with the exception of some of the minor courts.
The advantages of the two methods is an open question. The arguments
in favor of appointment are that it makes for an independent judiciary
and that it secures better men for the bench, whereas the other does
not, because the highest class lawyer will not go through the turmoil
and supposed degradation of a political campaign. These arguments are
not sound.
The argument for the election of judges is that it keeps the bench
more humane, modern, and in touch with the will of the people. The one
is the aristocratic idea, the other the democratic. A court as at
present constituted is an autocratic institution but the judges should
be democrats. A feeling prevails that the man who has gone through a
course of political sprouts involving the training of election
campaigns, is more understanding of the wants of the people whom he is
to serve, also that courts should be arranged on a business basis.
An amusing aspect of an elective judge is that he is in an anomalous
position. If he plays politics, endeavors to make friends either by
his decisions on the bench or obeying the mandates of a superior
political boss as to appointment of referees and receivers, he
immediately becomes a corrupt judge. The stench of his unjust
decisions will sooner or later come to the nostrils of the community
and his chances of reëlection are forfeited. He runs the hazard of
charges and removal.
If, on the other hand, he forgets the organization that has elected
him either in the matter of patronage or the refusal of some desired
court remedy, and so conducts his court that there shall be neither
fear nor favor, he is a political ingrate and deserves neither
reëlection nor promotion. Of course these are the two extremes;
fortunately human nature is not what the sociologists and political
theorists would make it.
The political boss is not the unscrupulous ogre that the
muck-rakers picture. He does not order the judge to decide the
hundred-thousand-dollar-contract case in favor of his hench man. He
might like to have him do so but he does not ask. Neither does the
judge lean over backwards in the other direction and imprison the
contractor because he is a friend of the boss. The movements for the
non-partisan election of judge show the recognition of some of these
incongruities.
The fierce bright light that plays about a throne also makes the judge
conspicuous. If he sneezes, if he coughs, if he takes a glass of water
he is probably feverish and cross. If he keeps still he is going to
sleep and not paying attention. If he gets up or sits down it is noted
as indicative of how he is going to decide the case. Every movement is
watched. The position of a judge is not enviable. He is the concrete
object to which the evils of the court-room attach. To the popular
mind he is the court, the law, the method of procedure, the source of
all the technicalities, and the delays. The beaten side will bear him
a grudge, and the winning side think they ought to have got more.
If he be lenient in interpreting the law, he may be called to account
for inability; if he be too strict, he is accused of irritability. If
he be too polite, he may seem to be extending favor. A justice of one
court, wishing to be kind, once asked a young counselor whose case had
been dismissed through a technicality to come up and sit on the bench
with him. The young man afterward complained to his friends that the
judge wanted to shame him and make him conspicuous.
There are few judges who dare to cut short the examination of a
witness, although the length and direction of a trial are supposed to
be within the discretion of the judge. He is hindered by the
technicalities of those who insist, hoping for a reversal on appeal,
and sometimes the same technicalities are used to prevent the actual
facts being brought out. The solution probably lies in extending the
powers of the judges over the conduct of a trial.
He has a position of interest and authority and one that commands
respect. In England he dresses for the part in silk stockings and is
next to the king in importance or about equal to a bishop. In Germany
he is a little better than a Herr Pastor or a doctor, but inferior to
a young lieutenant in the army. In France the salaries of the judges
are pitiable. The highest, the president of the Cour de Cassation,
gets $5000 a year and the lower judges only a few hundreds, with no
possibility of earning anything by practicing law, but there the
judges are persuaded to take out the balance of what they should have
in salaries in the honor of their position.
We are so shockingly frank and matter of fact, that we believe that
the conventionality of pomp and circumstance have been too much
regarded in courts and court procedure, that dignity is not
accomplished by wearing a wig, knee breeches, or gowns of ermine and
silk. It is consistent with a plain-spoken people to feel a contempt
for state and symbols. Any attempt to return to the conventionalities
of Europe is met by the contempt of a democracy.
In rebelling at form we have been so occupied that we have not been
awake to a change in substance that has been demanded by modern
conditions. The courts are gradually reaching a simpler basis.
Formerly they may have been surrounded by more pomp and magnificence,
but the work is now being better laid out and the course of the
proceeding is on more modern lines. Changes in practice acts will
revolutionize trials. People smile at the dignity of their courts and
judges. The modern spirit is for greater frankness, simplicity, and
directness.
If he is a sane and reasonably simple man the judge tries to do his
duty according to the light that is in him. He knows some law, has
seen a quantity of human nature and passions flowing before him. The
court-room, his position of authority, the respect of the community,
the human drama, the abstract and intangible demand of something above
the actual awakens in the judge that passion for justice which is a
quality almost divine. The man himself becomes patient, understanding,
and humane. Nearly every man, no matter how small he may be at the
beginning, rises to the responsibilities of his position. So it is
with the judge.
It is undecided whether the judge is entitled to more respect from the
lawyers and laity or whether the laity is entitled to more respect
from the judge. The judge sits indolently crumpled up in his easy
chair; before him a leader of the bar is arguing. In an eloquent
manner he is pleading for a young attorney who is about to be punished
for "Contempt of court."
"And so your Honor will realize that in the heat and excitement of a
trial, in the turmoil of the legal battle, in the intensity of a
forensic struggle, the young man may well have forgotten the respect
and deference which is ever due from a member of the bar to the
representative of high-minded justice."
The judge seems unaffected by the appeal. The young man had been rude
and impertinent, the fine of $250 must stand as punishment for his
misbehavior.
Suddenly the pleader with a wave of his hand and a twinkle in his eye
says: "Look at the difference between the position of a lawyer who,
alert with restless energy, momentarily forgets his manners in
fighting for his client, and on the other hand the calm"--pointing to
the judge who is still half reclining in his chair--"the calm, I
repeat, of complete judicial repose."
There is a smile through the court-room. The judge straightens up,
sees the humor of the situation, and the fine is remitted.
There is a constant play of opposing influences upon the judge. As an
upholder of the law he becomes a formalist and a reactionary. The
insistent demands of humanity which the statute law can never satisfy,
tend to make him a revolutionist. The saving element for him is that
he is only a part of a system for which he is not responsible.
When the judge has had the list of cases for the day called and has
disposed of the applications for adjournments, he turns to the clerk
who begins to call the roll of the men who are to act an important
part on the stage--the jury.
The solution of the matter so far as the judge is concerned is to give
him greater power. Let him be absolutely responsible for the conduct
of a case in court. His position should not be that of an umpire who
remains quiet until a dispute arises, but rather that of a head
enquirer into merits, assisted by the two lawyers and the jury.
IV
THE ANXIOUS JURY
The main characteristic of the jury is that it does not want to be in
court. The name comes from the French word _Juré_, sworn, or the man
who has taken an oath. There is probably no reason to suppose that the
word is derived from the state of mind in which a juryman finds
himself, nor does it mean the words he has expressed with reference to
his duty: more properly it is the men who are sworn to do justice. The
implication of the word serve is that there is some punishment or
penalty attached to jury duty. It is not regarded as penal servitude
by the average man, but it seems near to it. While he is serving, his
business goes to pieces, his wife misunderstands why he does not come
home to dinner and his whole life is disarranged. When a man has
served on a jury he gets a discharge paper.
Jury duty is one of the obligations of citizenship and its highest
duty; at the same time it is one of its privileges. Foreigners and
idiots cannot serve. Doctors, soldiers, journalists, clergymen, and
others, besides those who are deaf, blind, or otherwise disabled, are
exempted. The experience of serving on a jury may be annoying but it
is broadening and gives an opportunity of seeing human nature in a way
that few appreciate. To serve on a jury is to become a part of the
judicial system of the State and for the time being to belong to the
governing class.
"All day long," says the court officer, "they do nothing but grumble
and grumble at being kept away from their business but when they get
chosen on a case, they realize it does not do any good so they settle
down to do what is right." The country man may not have much to do and
may look on jury duty rather as a diversion or vacation from farm
work but the average town man feels the $2 a day he receives is only
lunch money compared to the amount he is losing in his business, and
so he hates it.