Popular Science Monthly/Volume 32/April 1888/Forms and Failures of the Law
|FORMS AND FAILURES OF THE LAW.|
THE law's delay has long been a theme for comment, gibe, criticism, and denunciation. Even lawyers and judges discuss it occasionally, in published papers and orations at bar association meetings, but with no radical results. The abuse goes on, and doubtless will until those who suffer from it, the people, take the matter in their own hands and move for redress. They are thoroughly satisfied as to its necessity, but what is most wanted is leadership. Able and unselfish lawyers, if such can be found for it, would here find a promising field for honorable fame. But if there are none to volunteer, the reform will go on without them, and will not stop with the law's delays alone, which are trifling in comparison with the work that needs to be done. Judge William L. Learned, of the New York State Supreme Court, in a paper on "The Law's Delays," makes an admission of striking significance. He says: "In most things we move more rapidly than former generations did. We travel faster; we send messages across the ocean in a few minutes; we transact business of large amounts in a short time; but when we come to our litigations we find the reproach of the law's delays still existing. We have done very little to remedy this great wrong; indeed, it is doubtful whether in this matter we have not gone backward. Lords Kenyon and Ellenborough tried cases at the rate of twenty-five a day. The very last day that Lord Ellenborough sat at Guildhall, when he was laboring under great infirmity and weakness, he tried seventeen defended cases." A trial now of seventeen cases a day, even by an able-bodied judge, would probably alarm the bar and result in an early retirement of the judge (if holding place by election), for the reason that his dispatch of business would lessen the emoluments of the lawyers. But the main concession is that while there is advancement in every other field of human effort, in law alone are we at a standstill, or are retrograding! A few creditable changes in procedures have been introduced after prolonged and tedious opposition, such as that an accused party may testify in his own behalf, or that a wife may testify for or against her husband; but in the main we have the same forms and ceremonies that came into use five centuries or more ago, the same mass of verbiage in legal forms that confuse and perplex, and convey no idea of anything in particular except vacuity. Let a man of ordinary intelligence read a formal indictment for murder, and then ask him to tell what are the ideas expressed, and he can hardly do it with more clearness than if written in Greek or Chaldaic. Take the concluding paragraph of a warranty deed in common use, and we have one hundred and sixty-two words of idiotic verbiage that not one man in a hundred can understand except by hard study and risk of brain-fever, and even lawyers, judges, and conveyancers must judge of it by its conformity to prescribed legal forms rather than through any warrant of title conveyed by it. But though every man not a lawyer abhors such a jumble of words, it remains as part of the machinery by "which real estate is transferred, and any proposition in a State Legislature to abolish such a form and substitute something clear, short, and explicit, would call out the active opposition of not only every lawyer in the body—which is usually two thirds of all the members—but also of, substantially, every lawyer and court officer in the State, as well as every legal printer and dealer in legal stationery, for the reason urged by Demetrius in Acts xix, 25, "By this craft we have our wealth," And this evidently is the one controlling, all-powerful influence which stands in the way of legal reforms, and will until the people combine and overthrow it.
It is not the law's delays, then, which by any means constitute its one great offense. That is but an incident of a system which needs reform from top to bottom. The lawyer has, seemingly, settled down to the conviction that his "best hold" for a fortune is to oppose radical changes, at least until some substitute as profitable is within reach. He may not be opposed to reforms in the abstract, but a reform that is to cost perhaps thousands a year at first, though it may be of immense benefit to clients, is not to his liking. That is his conservatism. Perhaps morally it is not unlike that of others whose vocations have been abolished through great modern inventions—the use of steam, electricity, etc.—but if so, the peculiar tactics of the legal fraternity have defeated nearly all propositions for legal reforms, and thus justified the statement of Judge Learned already quoted. The lawyers forget that in other callings nothing has been lost in the aggregate to anybody by reforms that facilitate business, as new inventions create new industries requiring a higher grade of intelligence; and that business is always sure to develop in proportion to the facilities for its rapid, safe, and cheap dispatch. Kone smile sooner than they at the occasional outbreaks, even yet, of ignorant laborers against new inventions, on the ground that such changes drive them to starvation. They know, if laborers do not, that machinery only changes the form and method of industry without abolishing it, and hence it would be well to consider if this principle would not apply also to a reformed system of law procedure which would secure justice speedily instead of defeating it through delays that extend through generations, with little benefit to anybody but lawyers. It certainly prejudices the community against the legal profession, and impels many tempted into litigation to keep aloof, and often to bear their wrongs at great loss rather than risk further losses by employing lawyers who have no interest in any case except to extract fees or reputations from it. But if we had a system of deciding law questions speedily and cheaply it might lead to a greater volume of business, promote the ends of justice far better, and elevate the profession immeasurably in public esteem. Even if the reforms would dispense with one half or two thirds of all the lawyers, and who may be said to be non-producers of public wealth, it would not be a reform that really high-minded and conscientious lawyers need regret. A country like ours should not tolerate any parasitic classes; and, once rid of all the useless lawyers, the reform would make some other classes useful whose presence now is detrimental to the public good.
Let us look at some of the changes for which public sentiment seems ready, and which would certainly be inaugurated soon, if a liberal-minded bench and the more honorable members of the bar were to sanction them. They are noted here, not so much in the order of their importance, as in the order in which they come to mind.
First, the jury system. There is wide-spread dissatisfaction with it, especially as to capital cases, or where heavy punishment is involved. In important civil cases where great interests are at stake, it is also regarded very much as a failure, leading nearly as often to the miscarriage of justice as otherwise. The traditions that require unanimous verdicts are antiquated and unworthy of serious consideration. Why should twelve men, totally untrained in the examination of legal questions or evidence, be expected to agree, in the face of a mass of contradictory evidence, and after listening for hours, or even days and weeks, to the arguments of counsel skilled in making the worse appear the better reasoning, and without a scrap of written or printed testimony before them? Two witnesses to the same transaction can rarely agree as to details, and yet a jury of twelve men, some of them very ignorant, are required to agree, or else the case, in all its dreary length and breadth, must be tried again before twelve other men equally unfit, or be abandoned. If they do not agree on the first ballot, they are kept in confinement until the strongest-willed can conquer the rest, or until their natural desire for a discharge impels them to agree, whether the verdict represents their real convictions or not. It is right that, in capital cases at least, there should be a heavy preponderance, but to require unanimity is absurd, and often defeats justice. If eight or nine men out of twelve can agree that a prisoner is guilty, it should be sufficient, especially while all the chances for appeals and pardons remain. Were the verdict a finality, it would be different; but no convicted murderer with money at his command ever thinks of submitting at once to an adverse verdict. The criminal laws seem specially contrived to shield notorious villains from swift punishment; and the "able counsel," no matter what his case, keeps up the fight until every resource for delay or escape is exhausted.
The one vicious principle at the base of litigation, at least in criminal cases, and which overshadows all others, is that the professional advocate is generally oblivious to all the claims of abstract justice, or that there is any obligation resting on him to protect the community. It is his client who is to be sustained, right or wrong, and the claims of justice or of the public receive no consideration. He is educated to this idea in the law-school, and, becoming a rule of action, it makes the lawyer, comparatively, a narrow man, and one of the most unfit of all men—of equal education—to trust on questions involving the great interests of society, hence especially unfit to be a law-maker. This allegation will surprise some, but it need not when we remember that it is quite as much the lawyer's business to impair or destroy the force of a good law as to sustain it. He labors to find defects in the law, or to boldly mislead courts and juries so as to secure wrong interpretations of law, and thus by assurance and false logic screening his client against its just intent. To make legislators out of such men is poor policy, because ill-digested, obscure, contradictory statutes grind out grists for the lawyers' mills, and the man educated to look out for nobody but himself is reasonably sure not to neglect such an opportunity to promote litigation.
This disposition to thwart justice on occasion suggests another reform. If judges are really "learned in the law," as they should be, why are lawyers needed at all as advocates pro or con in the trial of ordinary jury cases? Why not make it the business of the judge to examine the witnesses and bring out all the facts? It is the facts as they bear on the case which are wanted, and not that version of them which the paid advocates wish presented. They have no wish and no intention to bring out the truth except as it assists their own side; they desire, indeed, to suppress it when possible, which is their aim in the bullying and browbeating of timid witnesses: hence the judge, who is sworn to impartiality, and has no interest in concealing anything, is a far better man to examine the witnesses. If this would overwork him, let him have assistants, or let the court be composed of several judges. The taking of testimony would then be more rapid, because there would be no lawyers' wordy wrangles to cause delay and weary the jury; and, when concluded, the presiding judge would not, in making his charge, be obliged to warn the jury against a mass of irrelevant testimony. In order to guard against possible errors by the court and secure a review by a higher court on really important points, counsel for each side might be present to watch, take exceptions, and secure a review under certain limitations; but a careful judge would rarely make mistakes that needed review. Besides, appeals or reviews should be greatly limited. Judge Learned, in his article, shows their abuse and evils very clearly, and also points out that they do little toward securing exact justice. "When the end is reached," he says, "it is an end only because it can go no further, and not that the last of a dozen or twenty trials is infallible." The long delays, extending sometimes through several generations, do more to impede justice and bring odium on law and lawyer than any right decision at the final end can neutralize. It has become, in the main, a contest of the longest purse, and that even-handed justice should suppress. And this would have happened long ago but for the lawyers.
The requirements of present laws which authorize the exclusion from juries of persons who may have formed an opinion of the case from newspaper reports is another absurdity. Few well-balanced men would be influenced in a verdict by what they had read or heard before the trial. In some cases it would assist them in the examination of witnesses, for that should be part of the duty of every intelligent juror. What is wanted of a juryman is not original ignorance of the case, but that cast of mind to give a verdict on the evidence presented on the trial—not as presented in the newspapers. To do otherwise is to restrict the choice of jurors to the most ignorant men instead of the most intelligent, and to that are undoubtedly due the many monstrous verdicts which disgrace our jurisprudence. Men who do not think, or read, or study, are exactly the sort of men to be led astray by glib-tongued lawyers, and made to forget the evidence and even to disregard the judge's cool analysis of it. It is difficult enough for twelve men of fair intelligence to reach a unanimous conclusion as trials are conducted; but for twelve ignorant men to do justice is plainly absurd. The fact is recognized among laymen, but lawyers are satisfied and ready to oppose change. The public see the wrong; but while the great majority of thinking people favor a thorough reform, there is in some minds a superstitious fear of attempting anything radical so long as eminent judges or lawyers stand aloof or shake their heads as if it were a sacrilege to uproot those hoary legal abuses and stupidities inherited from the feudal ages. Though bad enough, some of them argue that "we might get something worse," and one journalist goes so far as to claim that we should be satisfied with the legal status because courts of law are better, with all their imperfections, than to settle disputes by arms, as was the course under tribal and barbaric rule!
But besides reforming the jury system by broadening the field of selection and by accepting in many cases a verdict of two thirds or three fourths, it may be reformed also as to certain cases by dispensing with it entirely, at least in its present form. Why not have trained men for jurors as well as for judges? Why is it supposed that twelve men drawn at random, ignorant of law, and unused to weighing evidence, will reach a just decision better than one, three, or five men educated to and experienced in such work? If some sort of training and adaptation are necessary in most other pursuits, why are they not in the difficult work of dispensing justice? In certain cases the decision might very properly be left to the judge, who, if he chooses now, can, to a certain extent, control the jury. But—on account probably of the jealousy of lawyers—the tendency in recent years has been for the court to express no opinion, but to "instruct" the jury in a way to throw them still more on their own resources by pointing out that, if they think so-and-so, then their verdict must be so-and-thus; while if they think the evidence warrants a so-and-thus conclusion, then the verdict must be so-and-so! If the court shows a leaning, and charges in accordance, exceptions are taken, and on an appeal a new trial may be granted, usually with an advantage to one side particularly in criminal cases. Time dims the edge of one witness's memory, while others may die, or run away, or may come into court with revised testimony, and a case very clear if tried early loses much of its clearness and perhaps some of the witnesses five years after date. Lawyers know this, and in desperate cases count always on the gains of delay. It is an outrage on justice which the people privately anathematize. But what can be done against "the majesty of the law" when lawyers wink at and support the rotten system? Even the judges are silent, and when they do speak it is not to denounce the foundation of abuses of the legal profession. In cases where judges hold office for life, one would expect them to be really independent of bar influences, and ready to lead in the great reforms needed. But, having been lawyers before they were judges, it seems too much to expect that they will rise above bar influences, and hence, as we get little aid from them, it will be left for the people themselves to attach as many modern improvements to jurisprudence as mark our advance in other callings.
Many minor abuses can be mentioned which ought to be easily reformed. One very gross one is the forcible detention of innocent witnesses of a crime. A person far from home, and a stranger, can be imprisoned indefinitely to secure the "ends of justice" in case bail can not be given for attendance at the trial. There is no law to take the testimony of such a witness and discharge him, but legal conservatism requires that he shall "confront" the accused in open court. It is right that this should be done when it does not in itself become a punishment of the innocent, but the bearing of a witness in court has no such value as justifies an outrage on his rights. The testimony might be quickly taken verbatim, followed by a cross-examination, with notes as to the witness's "bearing," and he then be left to go his way. As to his credibility, that could usually be ascertained at his residence, and his testimony could then be submitted for what it was worth. This would entail little or no hardship on anybody, and generally would promote the ends of justice quite as well as now. Sometimes, as in an instance in New York in 1885, a crime is committed against a respectable woman, and on making complaint against her ravisher she is imprisoned with thieves and prostitutes to insure her presence at the trial, while the miscreant who assailed her, being widely known among politicians and saloon habitués, remains at large on bail! Such proceedings subvert or discourage justice, but a reform involves so much disturbance of conservatism that a quarter of a century may elapse before it is favored by lawyers.
Abuses in the examination of witnesses often crop out, which tend to discourage litigation and interfere with justice. A lawyer with a bad case, but ambitious to maintain or make a reputation, is quite certain to make the cross-examination of witnesses a terror to any person whom browbeating or insults can throw off his balance. Judges might reform this, but, as in most other law proceedings, the attorney is allowed a latitude out of all reason. A favorite way to confuse a witness is to insist on categorical answers to questions ingeniously framed to reflect on his consistency, and, when any attempt is made at explanation or qualification, to suppress it by bullying and threats. Any man of much observation knows that "the truth, the whole truth, and nothing but the truth," can not be always told by answering "yes" or "no," and for this reason witnesses have a moral right to explain or qualify; but the average lawyer has no regard for that, if a qualified answer is likely to injure his case. The truth is often the last thing he wants, and if he can confuse, or worry, or bully the witness so as to throw doubts on his testimony, it harmonizes with his ideas of "the ends of justice." The courts are censurable for allowing this abuse, and it is a pity that there is no appellate or impeachment court to take special cognizance of such offenses, and to punish both judge and lawyer when such outrages are consummated. In other cases the character of respectable witnesses is outrageously attacked in summing up, and trifling, youthful, almost forgotten indiscretions magnified out of all proportion to their importance in order to throw discredit on testimony which can not otherwise be assailed.
It need not be said that crime is rarefy punished in proportion to its seriousness, nor that this matter is almost invariably governed by the amount of capital controlled by the criminal for defense. And yet the legal profession, which on occasion has so much to say of its services and its high character, never treats this as a reproach. Probably not one lawyer in a thousand thinks it disreputable to defend the most infamous swindler, defaulter, or bank-robber for pay, thus sharing with him in the avails of his robberies. The well-known fact that the late William M. Tweed was a robber on a colossal scale did not deter "eminent counsel" from defending him persistently until, owing to some informality, his release was ordered by the highest State court. Nobody questioned his guilt, but the conditions of the law are such that an error which did not affect the question of guilt at all was enough to set aside years of costly litigation, and to liberate a smooth mannered villain whose incarceration for the rest of his worthless life would not have atoned for his demoralizing career. And still, what lawyer has been moved by such a defeat of justice as to make any attempt to protect the community against a repetition? Why should any court be empowered to turn loose a notorious robber simply because a single step in the proceedings against him was erroneous though not affecting the question of guilt? A departure from strict rules in election matters is not allowed to affect the result, provided the voter's intent is carried out; and most men of sense will say that technical errors at a trial ought not to vitiate the proceedings, provided no injustice is done. But as long as the lawyer thinks his duty is alone to the client who pays him, and nothing to the public, this debasement of honor and judicial functions will go on.
When a criminal has neither money nor political influence, justice is sometimes swift enough. A New York daily some time ago reported that a common thief, who had snatched a scarf-pin worth a dollar, was "railroaded" through court in a few days and sentenced to five years in the penitentiary, while a saloon-keeper went free who "had been arrested eighteen times in two years on charges of beating, assaulting, and robbing women." But the latter, it was expressly stated, had "political influence," and boasted that he had "a pull" on the courts which would always shield him. Perhaps this was exaggerated; but no observant man can doubt that justice must often fail when the bench is occupied by active associates of leading politicians. The method is not openly to defend and set at liberty, but to rail at and stigmatize witnesses as "informers," to discredit their testimony, make postponements, discharge for alleged informalities, or put over the trial from court to court until public interest is lost, and then to permanently "pigeon-hole" the charges or enter a "nol. pros." This is comparatively easy in communities where certain outlawed immoralities are supported by local public sentiment, such as gambling, lotteries, horse-racing, betting on elections, unlicensed liquor-selling, drunkenness, prostitution, prize-fighting, Sabbath desecration, etc. These can not be made legal, because the State is greater than the city, but local sentiment is usually powerful enough to control the courts, and through them to make the laws a nullity. But with a powerful bar bent on the administration of justice, and not conniving at nor leading in opposition to good laws, this could hardly happen. Hence it is not very wide of the mark to say that lawyers as a class do not take a deep interest in abstract justice, or that they are prominent in agitations for moral reforms. Their training and traditions are against it, perhaps because litigation offers its best rewards in communities where morality and justice are not much recognized—at least until vigilance committees and Judge Lynch supplant the regular courts. That is the natural outcome for any locality where the lawyer, and especially the able criminal lawyer, achieves his highest successes. Lynch law dwarfs immensely the lawyer's importance, and while it is a dangerous remedy for legal evils, it is well to remember that it is best avoided by such an administration of the law as not only gives the criminal a fair chance, but in addition protects society.
It may be charged that a general feeling of hostility to criminal lawyers would make it easy for real criminals to involve the innocent in trouble. This is to be considered; but the history of judicial proceedings in recent years rarely shows that persons leading lives of probity, faithful to every duty of the good citizen, are often arraigned at the bar of justice. In general, under a free government, those charged with great crimes are guilty, and their swift conviction and punishment are demanded by every interest of society. In other cases suspicion may be due to bad habits and bad company, and when this class of people are charged with crimes they have themselves mainly to blame. What is wanted is swift punishment for real transgressors, and that our present system of criminal jurisprudence does not bring. The safeguards provided for the innocent are perverted to the use of the guilty by lawyers who foolishly imagine that their own interests will be promoted through the defeat of justice, forgetful that reactions must come when public interests are persistently disregarded.
A reform of great value to the State would be the education and training of judges at public expense, instead of taking them, as now, from among practicing lawyers. We have a National Military Academy and a National Naval School from which to obtain officers for the army and navy, though only at long intervals and in great emergencies is there any serious need of them; but the administration of justice, which is an every-day need, is left pretty much to chance. The lower courts, those presided over by justices of the peace in the rural districts, as well as the lower grade of city courts, are usually held by petty local politicians, without, generally, any pretense to legal knowledge except such as they obtain from certain printed forms prescribed for them, and whenever an important case is tried by them it is of course appealed. It should be said, however, that in spite of many drawbacks, these petty courts—in the country at least—dispose satisfactorily of a great deal of litigation without a tithe of the cost, delay, and parade of the higher courts, which are invariably presided over by lawyers sitting during regular terms, and where justice is balked at nearly every step by the various arts—impossible for a layman to catalogue—so familiar to lawyers, and with which the judges, from their education and long and close association with lawyers, very earnestly sympathize. If the United States, or each State, had a school for the education of judges in which the course of study, in addition to a knowledge of the principles of law, aimed to fit the pupils to administer justice without much regard to mere technicalities or legal hairsplitting, and which kept in view, first and foremost, that the courts were for the benefit of the people at large, and not to furnish a living for lawyers, the gain to justice would be something akin to what modern inventions have given us in contrast with the methods of former generations. From the graduates of these schools our judges should be appointed to serve during good behavior, with promotions regulated according to ability in the discharge of duty, and seniority of service where otherwise there was equality, such considerations to rule as would secure the best service. The details for such a school, and for selections from its alumni, could be readily worked out, but are unnecessary here. The gradations of courts, after the system was once inaugurated, would give the new graduates the necessary experience from the lower courts up, and would bring into the service a class of judges who, owing nothing to the lawyers, would not be influenced by them in any schemes for delaying or defeating justice, or in allowing them enormous fees because great sums were at stake. These judges should take the place of lawyers to a certain extent in examining witnesses, so as to draw out the whole truth and only the truth, instead of only such parts of it as suit the ex-parte counselors. As long as the lawyer was an aid to the court he might be tolerated and encouraged, but when he proved an obstruction the mandate of the court should remind him of his true work and keep him in line with it. Such a system would greatly discourage the unscrupulous and "bumptious" lawyer, of course, because it would dwarf his importance; but if justice can be so administered as to do without him, and to turn his talents into more useful channels—for instance, the mechanic arts, agriculture, auctioneering, mining, cattle-driving, etc.—who will complain? Every new invention cripples or overturns some vested interest to promote something better; and if, after centuries of long-suffering and forbearance, the grip of the lawyer class can be shaken off and justice administered with speed, regularity, and exactness, and at a great reduction in cost, it would be a consummation worth other centuries of effort, and be the best token of an advancing civilization.
Another much-needed reform is to sweep away the useless verbiage that now so greatly encumbers law papers and makes them legal terrors. The reader will best appreciate this suggestion by trying to "digest" the clause of a warranty deed following the names of the parties, and which assumes to state the purpose of the document, thus:
"Witnesseth", That the said party of the first part, for and in consideration of the sum of—— dollars, lawful money of the United States of America, to us in hand well and truly paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt of which is hereby acknowledged, and the said party therewith fully satisfied, contented, and paid, have given, granted, bargained, sold, aliened, released, enfeoffed, conveyed, and confirmed, and by these presents does give, grant, bargain, sell, alien, release, enfeoff, convey, and confirm to the said party of the second part and his heirs and assigns forever: all that certain tract or parcel of land and premises hereinafter particularly described, situate, lying, and being in the township of Snipe, county of Woodcock, and State of Huckleberries, bounded and described as follows, to wit." Here the legal description is inserted with comparative simplicity. One would think when that was ended it would complete the transaction, so that "the party of the first part" could sign the deed, take his money, and go home; but not yet, as two hundred and thirty-two words are then used to say that the purchaser is not only to own the land, but everything on it; that it is for his heirs as well as for himself, "forever"; that the land is unencumbered by debts, and the title "as good as wheat." Then comes the warranty clause already mentioned, containing one hundred and sixty-two words full of sound if not of sense; then the signature of the seller and of his wife, if there be a wife; then the seals, another relic of feudal ages; then the signature of the witnesses, and then a formal acknowledgment before some official whose one pleasurable duty is to exact a fee. The seller is then let off; but the buyer, if he desires his deed secure against thieves, fire, or a second deed of later date, must have all the beautiful rubbish in it recorded by a salaried official deputed for that work, who charges another fee, and keeps the copy in a fireproof building at the cost of the county.
Now, in place of this ingenious and ridiculous piece of legal circumlocution, let us see if something could not be devised which would express the same ideas, and hold all the parties to the contract—something like this:
This deed made this —— day of ——, in the year a. d. 1887, witnesseth: That I have this day sold to John Smith, of etc., for one thousand dollars, the following described piece of land, with everything on it known as real estate, situated in the town of ——, county of ——, and State of ——, bounded as follows: (Description here inserted.)
And I hereby warrant the purchaser, John Smith, that I am the lawful and only owner of the said land; and also that there are no claims to encumber it; and that his title hereby becomes indisputable.
When two men make a verbal contract involving a horse-trade before reliable witnesses, the courts hold them to it without a scrap of written agreement. When one man gives his note for value received to another, he is held to this agreement if a clear intent is indicated, no matter if the note is bunglingly expressed and half the words misspelled. A man who can not write his own name can still convey away his real estate by affixing "his mark" to his name after somebody else writes it; and a verbal promise, indicated by a nod before some authorized magistrate or clergyman, binds two persons of opposite sexes to each other in marriage for life. All the vast interests of the kingdom of Great Britain are regulated and controlled by an imaginary "constitution"—one never written or printed, but which seems, Topsy-like, to have "growed" out of customs adapted to the hour, and which come to the present generation as traditions, and which are accepted and interpreted by the British courts with as much reverence as though everything had been written out, sanctioned by the people, and filed, as with us. Even British "common law" is nothing more than ancient customs accepted as laws, and interpreted as such with as much care and exactness as though they were statute laws sanctioned by Parliament. All this shows that the mass of verbiage in legal documents has no basis of necessity for its existence when courts administer justice according to certain general principles, and that the excuse for its retention has some other purpose than justice between buyer and seller.
A large part of our litigation is due to laws which embody contradictory or unconstitutional provisions, or are so vaguely expressed that judicial decisions are necessary to their interpretation. In this, too, the "fine work" of the able lawyer is apparent. The inexperienced or non-observing citizen would suppose that a Legislature of lawyers would enact statutes about which there could be no ambiguity and no conflict with higher laws. The lawyer is not slow to express apprehension about the fitness of plain citizens to enact laws, and of the necessity for a legal supervision of embryo statutes, in order that they shall not shock conservatism nor create disorder in the body politic. To every Legislature he goes in force, generally making a majority, and sometimes a two-third majority, carried there in triumph by those brilliant qualities which distinguish his profession, popularly known as "cheek," in addition to wire-pulling and that trinity of political virtues aptly described by a Pennsylvania politician as "addition, division, and silence." In the Legislature his work may be described as that which first and foremost guards on all occasions the interests of "number one." When a proposed law is crude, ill-digested, or of doubtful constitutionality, it never alarms him, because it is such that need interpretation by the courts. Then, again, his constituency may require his support of certain measures which he privately abhors, and to kill or cripple such measures with crude, incongruous, or unconstitutional amendments is usually regarded by him as statesmanship of a high order. A body of men chosen without solicitation of their own, and because of intelligence and high moral character, would scorn such work, but the lawyer regards them generally as "cranks" or "impracticables." A good legislator must be something of a plodder, ready to do a great deal of inconspicuous work. He must watch legislation very closely, particularly the work done in committees, and in each Committee of the Whole. He must see that the various bills are in the public interest—not in the interest of cliques; that they are in harmony with the Constitution; and also that the various sections of each bill are in harmony with each other. This is a sort of drudgery which the new country member, chosen because of conspicuous personal worth, accepts as part of his duty, but which the "smart" lawyer shuns, because his mission at the capital is above that of being a "legislative drudge." The time for him to study legal phraseology and the adaptation of laws to their purpose is when he is paid for it. As to legislation in behalf of morals, he has generally no faith in it, his idea being that morals should take care of themselves, or be left to preachers and Sunday-schools.
Public sentiment is ripe for leadership in this reform, and it will come sooner or later, whether lawyers acquiesce or not. Honorable lawyers ought to see that their interests center in the conservation only of what is useful, and not in ignoring or defying public impatience until it finds vent in revolutionary measures. The principle of the greatest good to the greatest number is what needs recognition—not protection to a remnant of the feudal ages.
- When released from the penitentiary, Tweed was held in bail, to the amount of $3,000,000, in pending civil suits, and, unable to furnish this, was committed to Ludlow Street Jail. A few months later he escaped, but, after hiding about a year, was brought back to the jail, and died there in April, 1878.—Editor.