Read Ebook: De l'Allemagne; t.1 by Sta L Madame De Anne Louise Germaine

Font size: 10 px 15 px 20 px 25 px 30 px 35 px

Background color: BlackWhiteGrayLight GrayDark GrayDim Gray

Text color: BlackWhiteGrayLight GrayDark GrayDim Gray

Apply/Save settings

Ebook has 904 lines and 112493 words, and 19 pages

PAGE

HISTORY OF THE PROFESSION OF LAW

It is not too much to say that the profession of the law is more or less on trial. It is certain that there is a crisis in the life of our courts, and that a great political issue is being forced upon the people, for they must decide whether the courts are to continue to exercise the power they now have, and what character of service they shall be required to render. Judges are lawyers. They ought to be trained practitioners and learned in the profession of the law before they ascend the Bench, and generally they are. Therefore, our courts, as they are now conducted, and our profession, which is the handmaid of justice, are necessarily so bound together in our judicial system that an attack upon the courts is an attack upon our profession, and an attack upon our profession is equally an attack upon the courts.

We have all noted on the stage and in the current literature the flippant and sarcastic references to the failures of the administration of justice, and we are familiar with the sometimes insidious and too often open impeachments of the courts, which appear in the press and upon the hustings. They are charged with failure to do justice, with bad faith, with lack of intelligent sympathy for socially progressive movements, with a rigid and reactionary obstruction to the movement toward greater equality of condition, and with a hidebound and unnecessarily sensitive attitude of mind in respect to the rights of property. One count that looms large in the wide range of the indictment against our judicial system is the immoral part that lawyers are said necessarily to play in the perversion of justice by making the worse appear the better reason. Such a public agitation and such an issue in politics lead to a consideration of the fundamental reasons for the existence of our profession in the past, and a further inquiry as to the need for it in the future, as preliminary to a discussion of the rules of conduct that should govern its practice.

There are those who intimate that we can learn nothing from the past. They don't say so in so many words, but they proceed on the theory that man, under the elevating influences with which they propose to surround him, is suddenly to become a different creature, prompted by different motives. But those of us who have been fortunate in having an education permeated with an atmosphere of common sense, and an idea of how to deal with human nature as it is, realize that the world is not to be reformed tomorrow or in a month or a year or in a century, but that progress is to be made slowly and that the problems before us are not so widely different from those which were presented to our ancestors as far back as the Christian era. Nor can we fail to derive some benefit from a consideration of such troubles, tribulations and triumphs of our profession in the past as suggest rules of conduct for lawyers in the future. I do not mean that we are not to aspire for better things. Nor do I wish to deny us the happiness of hope for reasonable and real progress toward higher ideals. I simply insist that we ought not to ignore the lessons of experience when we deal with conditions as they are and as everybody who is familiar with them knows them to be.

The three civilizations in which we may most profitably study the growth and development of the legal profession are the Jewish, the Roman and the English. Among the Jews, the Mosaic law, which went into the smallest details of personal life, was the guide to their rule of action. As it had religious sanction, the high priests became the actual ministers of justice and the preservation of religion and law was united in them. Acting as their assistants, and as assessors in the tribunals of which the high priests were the head, were the Scribes. They were learned in the law; had a religious and priestly character themselves; interpreted the Mosaic law with a view to its application to the various facts and issues which arose; and were in addition the teachers of law. It was to them that the rabbinical injunction was made "to make the knowledge of the law neither a crown wherewith to make a show, nor a spade wherewith to dig." And again it was said, "He who uses the crown of the law for external aims fades away."

In describing the principles of non-remuneration to the Scribes, the learned German Professor Schurer says: "In Christ's censures of the Scribes and Pharisees, their covetousness is a special object of reproof. Hence, even if their instruction was given gratuitously, they certainly knew how to compensate themselves in some other way." And it is because of this evasion of this rule that we find those passages in the eleventh chapter of Luke, the 46th and 52d verses, which read:

Verse 46. "And he said, Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers."

Verse 52. "Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered."

The line between the judicial and advisory functions of the Hebrew Scribes was not closely or clearly drawn. They were evidently supposed to occupy a disinterested position toward those who consulted them and to be in a sense the associates of the judges. Since the motive which prompted their study of particular cases was supposed to be only that of vindicators of general justice, the rules which nominally guided their action, as announced by the lawgivers, required that their services should always be gratuitous. But quite naturally their consultation with private litigants prompted such litigants to influence their view of the law, and command their skill in debate. And so to evade the rule which prevented remuneration they established the custom of giving presents in advance. These presents given in advance to secure the kindly favor of the Scribes are interesting as the precursors of that institution dear to every English barrister, and not unknown--nor even objectionable--to American lawyers, to wit, the Retainer. In fact it was the impossibility of finding men who could remain judicial in their attitude when the thought of remuneration moved them to advocate the cause of one of the litigants, that put the Scribes of those days in an indefensible position and led to the attacks upon them that we find in the New Testament.

In the three centuries or more after the establishment of the Inns of Court, no division appeared in the profession of the law, and it was not until about 1556 that the profession became separated into attorneys at law and solicitors in chancery, on the one hand, and barristers on the other. The former dealt directly with clients and performed the preliminary work of drafting documents and preparing briefs, while the latter, the barristers, drafted the pleadings and presented the causes in court. A similar division of functions prevailed in the Roman Bar. I shall have occasion later to comment on the advantages and disadvantages of this division, but this summary reference is sufficient for my present purpose in tracing the history of the Bar in England. During this period, after the establishment of the Inns of Court, the unpopularity of the Bar manifested itself in the enactment of statutes forbidding the election of lawyers to Parliament. This gave rise to the noted Parliament known as the "Dunces Parliament," because everybody who knew anything about the law, and therefore about the framing or the operation of statutes, was excluded from membership.

In his interesting history of the American Bar, Mr. Charles Warren, of the Boston Bar, says:

"Lawyers, as the instruments through which the subtleties and iniquities of the Common Law were enforced, were highly unpopular as a class in England during the period of Cromwell and Milton."

Milton wrote:

"Most men are allured to the trade of law, grounding their purposes not on the prudent and heavenly contemplation of justice and equity, which was never taught them, but on the promising and pleasing thoughts of litigious terms, fat contentions and flowing fees."

As examples of a lawyer's reputation in London in the seventeenth century, Mr. Warren cites the titles of the following tracts printed at that time: "The Downfall of Unjust Lawyers"; "Doomsday Drawing Near with Thunder and Lightning for Lawyers"; "A Rod for Lawyers who are Hereby declared Robbers and Deceivers of the Nation"; "Essay where is Described the Lawyers, Smugglers and Officers Frauds."

I note these facts as I progress to indicate and reinforce my original statement that the present time is not the only time in the history of civilization when lawyers have received the condemnation of their fellow subjects or fellow citizens. Yet not only has the profession survived such movements but its usefulness has been recognized in succeeding crises.

I need hardly mention that most of the progress toward individual liberty in English history was made through the successful struggle of the lawyers against the assertion of the divine right of Kings and through the defence of privilege by members of our profession. Lawyers like Lord Coke and Lord Hale stand out in the profession for their maintenance of the independence of the judiciary and their support of the liberties of subjects. The great charters, the Petition of Right, the Habeas Corpus Act, the Bill of Rights, and the Acts of Settlement, establishing the judiciary independent of Royal control, were obtained at the instance of lawyers who knew better than any other class the absolute necessity for such reforms in the maintenance of free institutions.

The evolution of the Bar in this country during colonial times--especially in New England--was a curious counterpart of the history of the English Bar three centuries before. The founders of New England came here to escape a persecution for their religious beliefs and law was closely connected in their minds with the injustices, the inequalities and the rigid hardships of the common law as administered by judges appointed and removable at the will of the Tudors and Stuarts. At that time lawyers exercising their profession were the instruments of a system that had become non-progressive. They had lost the principles of justice in technicalities and had become mere political tools in the hands of tyrants. But in England, the law soon lost its narrowing, hard and inflexible character through the intervention of courts of equity and through the genius and broad views of great judges of common law like Mansfield. It was modified further by the civil law and by the needs of a developing world commerce, and after the action of the Long Parliament and the Revolution it was no longer used as an instrument of tyranny.

In this country, however, the Puritans and the Pilgrims approved of neither the common law nor the English judicial system, and as lawyers were only part of that system, they considered the abolition of the profession from their society as an end devoutly to be wished for and promptly sought. Among the Pilgrim fathers there was not a single lawyer, while among the Puritans there were only four or five who had been educated as lawyers and even they had never practiced. The consequence was that during the seventeenth century and far into the eighteenth, lawyers had little place in the social or political institutions of the colonies. In New England there was a theocracy. The judges--none of them lawyers--were all either ministers or directly under the influence of the clergy. A colonial common law grew up among them, based on a theological reasoning and was really administered without lawyers. In the Massachusetts body of liberties, it was provided that a man unfit to plead might employ a person not objectionable to the Court to plead for him, on condition that he give him no fee or reward. In 1663 a usual or common attorney was prohibited from sitting in the general court.

As society progressed, however, as commerce and trade increased, as wealth grew, as business transactions became more extended and as learning spread from the clergy to other persons, opportunity and inducement were furnished for the study of the law, and professional training became more general. The crying need for a learned and honorable profession of the law was made manifest by the growth of a class of advocates and advisers whose influence was most pernicious. Litigants needed guidance in the presentation of their cases and no learned profession being available, the underbailiffs, undersheriffs, clerks and other underlings of the administration of justice began to practice, without real knowledge. Greedy and lacking in principle, they developed trickery and stirred up litigation for their own profit, just as their predecessors had done three hundred years before in England. Colonial statutes were then passed, forbidding such underlings of the court to practice law at all. But lawyers were not popular in colonial days even after the Bar became able and respectable. In fact a bitter spirit was manifested against lawyers even as late as Shays's Rebellion after the Revolutionary War.

Between the years 1750 and 1775, more than a hundred and fifty young men from the colonies were admitted to one of the four Inns of Court and became educated lawyers with the purpose of entering the profession in their native colonies. How far the presence of such a class of educated lawyers through the colonies contributed to the resentment against the stupidity and injustice of the English colonial policy which brought about the Revolution, cannot be estimated exactly; but certain it is that the preparation of the lawyers who were then in their prime appears to have been Providential interference in behalf of the people of the United States. Never in history has the profession of the law received so great a harvest of profound students of the constitutional principles of government as did our country at this time. Our lawyers signed the Declaration of Independence, served in the Continental Congress, acted as delegates to the Constitutional Convention, and met in the various conventions called by the states to consider the ratification of that great instrument. They not only knew that common law, but they had studied closely the political history of Greece and Rome, and were familiar with the principles of government as set forth by Montesquieu and Adam Smith.

It was the American Bar that gave to the people of the United States such lawyers as Alexander Hamilton, John Jay, James Madison, George Mason, Thomas Jefferson, Patrick Henry, John Adams, James Otis, Samuel Chase, Samuel Adams, Roger Sherman, Oliver Ellsworth, James Wilson, Edmund Randolph and many others not less learned and brilliant, to establish their liberties, frame the limitations of their government and care for the protection of individual rights. The same Bar furnished a little later that lawyer and judge, John Marshall, whose interpretation of the Constitution was as important in its beneficent effect as its original framing. That Bar not only helped largely in constructing the ship of state but it was also most instrumental in launching it on a triumphant and useful course through a century and a quarter. The profound gratitude of succeeding generations owing to such a Bar ought never to be dimmed by partisan or misguided diatribes upon lawyers and judges.

LEGAL ETHICS

I have heard the utility of legal ethics denied. It is said that the rules in legal ethics are the same as the moral rules that govern men in every branch of society and in every profession--except as there may be certain conventions as to professional etiquette--and that if a man is honest, there ought to be no difficulty in his following the right course in the discharge of his professional duties. If a man is lacking in probity of character, it is said the discussion of legal ethics will do him no particular good, because if he is tempted to a crooked path or an unjust act by his pecuniary interest, he will yield, and neither lectures on ethics nor the establishment of an ethical code will make him good; whereas the upright man will either not be so tempted, or should he be, he will clearly perceive the necessity for resisting the temptation.

In the course of my consideration of this subject, I looked into a text-book on moral philosophy and the general system of ethics with the hope that I might find something there that would suggest, by analogy, a proper treatment of the subject in hand. I consulted Paulsen's "A System of Ethics." The analogy between moral philosophy and legal ethics is not very close, but I found a passage or two bearing on this very issue, which it seems to me might not be inappropriately quoted here. In the conclusion of his introduction, Paulsen says:

Paulsen refers to the fact that Schopenhauer takes a different view:

"All philosophy," he says, "is theoretical. Upon mature reflection it ought finally to abandon the old demand that it become practical, guide action, and transform character, for here it is not dead concepts that decide, but the innermost essence of the human being, the demon that guides him. It is as impossible to teach virtue as it is to teach genius. It would be as foolish to expect our moral systems to produce virtuous characters and saints as to expect the science of aesthetics to bring forth poets, sculptors and musicians." To this view Paulsen replies:

"I do not believe that ethics need be so faint-hearted. Its first object, it is true, is to understand human strivings and modes of conduct, conditions and institutions, as well as their effects upon individual and social life. But if knowledge is capable of influencing conduct--which Schopenhauer himself would not deny--it is hard to understand why the knowledge of ethics alone should be fruitless in this respect.... Moral instruction, however, can have no practical effect unless there be some agreement concerning the nature of the final goal--not a mere verbal agreement, to be sure, but one based upon actual feeling.... It will be the business of ethics to invite the doubter and the inquirer to assist in the common effort to discover fixed principles which shall help the judgment to understand the aims and problems of life."

What is here said concerning the usefulness of an investigation of fixed ethical principles has application to a consideration of what rules of conduct should prevail in the legal profession. The high social purpose of the profession, its beneficial function, and the limitations upon its action that should be self-enforced in order to make the calling an advantage and not a detriment to the public weal, should be understood. Indeed, the profession of the law, if it serves its high purpose, and vindicates its existence, requires a double allegiance from those who have assumed its obligations, first, a duty toward their clients, and second, a duty toward the court. And though the two sometimes seem to conflict, they must be reconciled in the way which will best promote the effective administration of justice and the peace of society. The path to be followed in achieving this golden mean in the intricacies of professional relations is not as manifest as the rule of honesty and morality in ordinary life. The great problem of government that is never completely solved and that is changing with changing conditions is how to reconcile the protection of individual rights, helpful to the pursuit of happiness and the welfare of society, with the necessary curtailment of those rights and freedom, by governmental restriction, to achieve the same object. So the adjustment of the duties of the lawyer toward his client and toward the court in the interest of society, are not always easily distinguishable and an attempt to make them clear, therefore, is justified.

An understanding between the client and his representative that remuneration is a proper incident to their relation insures a greater confidence in the activity and devotion of his lawyer to his interest on the part of the client and stimulates industry and sincere effort on the part of the lawyer. It is far better that the employment on a pecuniary basis should be understood by all men, by the courts and by the parties, than that some secret arrangements should exist unknown to the court and the opposing party. But it is said that to give to counsel, skilled, learned and familiar with the arts of advocacy and the preparation of cases, a pecuniary motive to make the worse appear the better reason, necessarily leads him to an attempt to influence the court against a just result. For since one or the other conclusion must be unjust, one of the paid attorneys arguing the cause before the court must be arguing for the unjust side and in favor of wrong. Hence, it is claimed, the system of paid advocacy must in every case tend to an effort on one side or the other to pervert justice and mislead the judges into inequity and wrong.

It may be agreed that if there were not certain limitations upon the means which counsel may take to maintain the justice of their clients' cause, if they were justified in suborning witnesses, and coaching them to testify to an unfounded state of facts, if they were permitted to misstate the evidence after it has been adduced, if it were regarded as proper for them to accept employment in the prosecution of a cause which they knew to be brought only for a wrong purpose and without any just foundation, or if in a civil cause they were retained to make a defence which they were advised was false and wrong, then it might be that advocacy under such freedom from limitation would not aid the judges in avoiding wrong conclusions and unjust judgments. But there are limitations upon the duty of counsel to their clients. There are also limitations upon a lawyer's action which he cannot violate without a breach of his duty to the court of which he is an officer and to the public interest in the maintenance of the proper administration of justice. We find, therefore, that the goal to be reached in reference to the ethical duty of an attorney in the discharge of the functions assigned to him by the law, is the reconciliation of his duty to his client, with his duty to the court. To mark out this line in advance is easier than to determine each special duty in a concrete way, yet neither is free from difficulty and each requires a calm and clear understanding of the function of counsel as an instrument in the machinery of justice. This is the main object of legal ethics. It covers other fields and is important in those fields, but no other is of such primary importance.

Courts sit to hear controversies between parties over facts and law. Rules of procedure are for the purpose of reducing the issues of fact and law in such controversies to a form as narrow and concrete as possible. Men who are able to present a clear statement of the evidence and who are learned in the principles of the law and their application to the facts as they are developed are in a position to assist the judge to a quick and thorough understanding of the exact question which he is to decide. The real enthusiasm of advocacy which is necessarily developed by the relation of attorney and client would doubtless have a tendency to mislead the court if exerted in behalf of one side only, but where both sides are represented, where the same earnestness in the proceeding of each side is present, it is the best method within human ken to reach a sound conclusion both as to the facts and as to the law. No one who has had experience on the Bench in reaching judicial conclusions and who has thereafter been obliged in an executive position to reach important, and it may be final, conclusions upon questions involving both fact and law, can fail to recognize and acknowledge the powerful influence for justice that honorable and learned members of the law exert in the causes which they present to a court. The counsel who argues the losing side of a case contributes quite as much to the assistance of the court as the successful advocate. The friction of counsel's argument against counsel's argument develops every phase of possible error in a conclusion and thereby enables a just, intelligent, acute and experienced court to see clearly what is the right which should be embodied in its judgment.

The practical value of argument by paid counsel on both sides is shown in many ways. In the first place, it is well understood in weighing legal precedents that there is little authority in the decision of a court which has been reached without the benefit of the argument of counsel. In some states, courts are required to answer questions from the legislature as to the constitutionality of proposed laws. The best authorities hold that opinions given under such circumstances are merely advisory, since they lack opposing arguments made by counsel whom the spirit of professional advocacy arouses to industry in the search for precedent. They go so far as to say that answers so given should not conclude the same court in a litigated case arising subsequently. An earnest and commendable desire to win leads the counsel to search not only libraries but his own brain for the strongest reasons that he can summon upon which to base a judgment in behalf of his client. Why is it that a great Bar makes a great court? Though it may seem a truism, I repeat, it is because the great Bar furnishes to the court all the reasons that can possibly be urged in each case and enables it to select from among all the reasons developed by the ingenuity and intense interest of men skilled in the law.

Counsel ought to decline to conduct a civil cause or to make a defence when convinced that it is intended merely to harass the opposite party or to work oppression. His appearance in court should, therefore, be deemed equivalent to an assertion on his honor that in his opinion his client's case is a debatable one and one proper for judicial determination. He should know that under a proper code of ethics, no lawyer is obliged to act either as adviser or as advocate for every person who may wish to become his client; that he has the right to decline employment, and that each lawyer on his own responsibility must decide what business he will accept as counsel, what causes he will bring into court for plaintiffs, and what suits he will contest in court for defence. The court knows that the responsibility for bringing questionable suits or for urging questionable defences, is the lawyer's responsibility. He can not escape it by urging as an excuse that he is only following his client's instruction. The judge knows that no honorable lawyer would coach a witness to testify falsely, and that in dealing with the court each lawyer is required to act with entire candor and fairness in the statements upon which he invokes its action. The judge knows that it would not be candid or fair for the lawyer knowingly to misquote the contents of a paper, the testimony of a witness, the argument of opposing counsel, the language of a decision, or the wording of a text-book. He may fairly rely on a lawyer not to cite a decision that he knows has been overruled, or a statute that he knows has been repealed. He may properly rely on the counsel's not asserting a fact that has not been proven.

Yet he knows that lawyers owe entire devotion to the interest of the client, and warm zeal in the maintenance of his rights and that they will exert their utmost ability lest anything be taken or be withheld from him, save by the rules of law, legally applied. He knows that counsel has the right to proceed in the view that his client is entitled to the benefit of every remedy and defence authorized by the law of the land and that the lawyer is expected to assert every such remedy or defence. But it is steadfastly to be borne in mind that the great trust to the lawyer is to be formed within and not without the bounds of the law. The office of a lawyer does not permit, much less does it demand of him, violation of law or any manner of fraud for any client. He must obey his own conscience and not that of his client. These limitations are binding upon the lawyer as a sworn officer of the court, and compliance with them is the true reconciliation of the primary duty of fidelity to the client, with the constant and ever present duty owing to the minister of justice in the person of the judge. These statements of the duty of the lawyer to the court in the advocacy of causes and in the presentation of his client's case, are taken from the Code of Legal Ethics, which was approved by the American Bar Association. I think that all lawyers and judges will agree that when lawyers live up to them, the danger of injustice from the enthusiasm, skill or eloquence of their advocacy is quite remote.

I don't mean to say that lawyers do not differ in the force of their statements, in their logical faculty, in their method of arranging arguments, in their fluency and in the cogency with which they present the cause of their respective clients. Of course the man who is fortunate enough to engage the abler lawyer enjoys the advantage of those gifts with which nature has endowed his representative, but that element of inequality can hardly be eliminated from the administration of justice. It has more weight in a jury trial than it has before a court, for the lawyers before a court are matching their acuteness and learning not alone with the counsel for the other side, but with the cold scrutiny of a calm, intellectual and judicial mind, trained to consider argument, and experienced in the elimination of the irrelevant, the emotional and the illogical.

The jury system, though somewhat crude and not always certain, has advantages that outweigh its possibility of injustice in the judicial system of a free government among a free people. It is important that the people shall have confidence in the courts, and it is important that they shall feel that they may themselves be a part of the judicial machinery. The value of popular confidence in the verdict of a jury selected at random from a community is great enough to offset any tendency to error that may at times arise from the undue influence of a jury advocate upholding one side of the controversy before them. If the jury is misled by the histrionic eloquence of counsel so that it clearly violates justice in its verdict, the court may always set aside its decision and give a new trial. Moreover, in any properly adjusted system, the judge should be able to clear the atmosphere of any false emotion that counsel may have created. He can remind the jury in his charge that they are judges, who may not indulge their emotions or their prejudices. He should follow closely the argument of counsel to the jury in order that his charge may clear up the evidence by inviting the attention of the jury to the weakness of proof at critical points of the cause, or by pointing out either the bias of witnesses or their opportunity or lack of it for observation, thereby eliminating those phases of the controversy that the earnestness of counsel may have seized upon to divert the attention of the jury from the real issue.

I have recently heard an arraignment of our present judicial system in the trial of causes by a prominent, able and experienced member of the Boston Bar. He ascribes what he calls the growing lack of confidence in the justice and equity of litigation in the courts to the fundamental error in their procedure. He feels that the procedure now in vogue authorizes and in fact requires counsel to withhold facts from the court which would help the cause of justice if they were brought out by his own statement. To remedy this he suggests that all counsel should be compelled to disclose any facts communicated to them by their clients which would require a decision of the case against the clients. He contends further that the rules of procedure, which exclude hearsay evidence, and prevent the jury from hearing many facts which business men regard as important evidence, make it difficult to reach the truth which is essential to justice.

I set out this view as a possible basis for a discussion of the grounds for popular criticism of the courts. To require the counsel to disclose the confidential communications of his client to the very court and jury which are to pass on the issue which he is making, would end forever the possibility of any useful relation between lawyer and client. It is essential for the proper presentation of the client's cause that he should be able to talk freely with his counsel without fear of disclosure. This has always been recognized and has acted as a most salutary restriction on the conduct of counsel. No litigants, or intending litigants, would employ counsel if the latter were to assume the duty of extracting from their clients all their innermost thoughts with a view to revealing them to the court. The useful function of lawyers is not only to conduct litigation but to avoid it, where possible, by advising settlement or withholding suit. Thus, any rule that interfered with the complete disclosure of the client's inmost thoughts on the issue he presents would seriously obstruct the peace that is gained for society by the compromises which the counsel is able to advise.

The objection to the exclusion of hearsay evidence is equally unfounded. Its uses are said to be threefold, to convince in affairs of the world, to serve as the basis of action for business men, and to prevent opportunity for false witness. Yet it is not admissible in a court of justice to prove or disprove either a cause or a defence. The rules of evidence have been worked out by centuries of experience of courts in jury trials, and are admirably adapted to avoid the danger of error as to fact. I fully agree that in American courts the trial judges have not been entrusted with as wide discretion in the matter of admitting or rejecting evidence as they should have, and judgments have been reversed on technical errors in admitting testimony which should have been affirmed. As time goes on, however, the rule against hearsay evidence, instead of losing its force, is demonstrating its usefulness. The error and injustice that are committed in the public press by inaccurate, garbled and sometimes false statements of facts are increased in their injurious effect by the wider publication that newspapers have today, and the requirement that when a fact is to be proven in court it should be proven by those who have a personal knowledge of it, is one of the most wholesome and searching tests of truth that the whole range of adjective law furnishes. The opportunity for cross-examination, for finding out the bias of the witness, the advantage or disadvantage of his point of observation, the accuracy or inaccuracy in his recollection of the details of what he saw, are all means of reaching the real truth that the introduction of hearsay evidence would entirely exclude.

It is now more than fifteen years since this country was following with bated breath the judicial investigation of the charges against Captain Dreyfus for treason in having sold secrets of the French War Office to Germany. Under the civil law procedure, there is little, if any, limitation upon the kind of evidence which can be introduced to sustain the issue on either side, and the rule against hearsay evidence does not prevail. The shock given to the whole community of the United States by the character of evidence received to help the court determine the Dreyfus issue, was itself enough to show that the confidence of the public in the justice of the rule against hearsay evidence had grown rather than diminished with years.

Yet I am far from saying that we may not have improvement in our laws concerning testimony in court. The protection of those accused of crime contained in some of our constitutional restrictions may be too great. The charge against the administration of justice in the present system is that it is nothing but a game of wits, of cunning, and of concealment, promoted by the rules of procedure. I think this characterization is most unjust and most unwise because it aids the attack on a valuable and indispensable institution without suggesting any real security for such evils and defects as there are. An experience of many years in the trial of all sorts of causes as lawyer and judge and in framing a judicial system convinces me that the present method of hearing causes is correct. The enthusiastic advocacy of counsel when they are properly restrained as above suggested, and the rules of evidence adapted to winnowing out the false from the true, are admirably adapted to bringing about right results.

It is also asked whether members of the Bar live up to these rules restraining their enthusiasm and limiting their proper conduct in the advocacy of their clients' causes. One can reply that counsel differ in that regard, but that generally such rules are fairly well observed. The earnestness of advocacy often blinds them to the proprieties and the requirements of candor and fairness. They fall into the same errors that their clients do, though with a better knowledge of their duties in this regard. They share what has been characteristic of our entire people in the last two decades. The minds of the great majority have been focused on business success, on the chase for the dollar, where success seems to have justified some departure from the strict line of propriety or fairness, so long as it has not brought on criminal prosecution or public denunciation.

More than this, the tendency of legislatures, too often controlled by lawyers engaged in active practice, has been to distrust judges and to take away from them the power to control in the court room, as they do in the English and Federal courts. This has had a tendency to transfer to counsel greater discretion in respect to their conduct of cases and greater opportunity to depart from ethical rules with impunity in the somewhat reckless spirit of the times. The hampered power of the court to prevent the misconduct of counsel in many western states has not been conducive to certainty of justice nor has it been of a character to strengthen public confidence in just results. We find the bitterest attacks upon the administration of justice in those jurisdictions in which the people and the legislatures have themselves laid the foundation for the very abuses they subsequently criticise by taking away the power of the judge.

THE EXECUTIVE POWER

I have been introduced at a great many places by the exuberant chairman of a committee who referred to the fact that he was about to introduce a gentleman who exercised the greatest power in the world. While the power of the President may be very great as compared with the power of rulers of other countries, I can testify that when you are exercising it, you don't think of its extent so much as you do of its limitations. I think a study of the relative power of the King of England, the President of France, the Emperor of Germany, the King of Italy, the Emperor of Austria and the Emperor of Russia might involve a very interesting investigation. I am not sufficiently familiar with the power of those executive heads to speak on the subject, though I do know something of the power of the King of England. In England and all of her colonies they have a so-called responsible government. The English King is said to reign and not to rule, while the actual ruler is the Premier, who combines executive and legislative power by virtue of his position as head of the controlling party in Parliament. When the legislative majority fails him, he goes out of office. It is a government responsible both for legislation and for executive work.

With us, as you know, the President is a permanent officer for four years. It is quite possible that he may be elected as President at the same time that a Congress hostile to him is put into power. Such was the case when Mr. Hayes was elected, and indeed when Mr. Cleveland was first elected there was a majority against him in the Senate. It happens more frequently, however, that at the end of two years a majority of the opposing party is elected to a Congress at the mid-term election. Our method has been criticised as rigid and unresponsive to change in popular opinion, but I venture to think that it has some advantages over the English one. It may be good for a country to have an occasional rest from legislation, to let it digest what reformers have already gotten on its statute book, and the period when the President differs from Congress offers such an opportunity for test and rest. We have rests in music, which are necessary to a proper composition, and I do not see why we should not have rests in politics.

I think, however, that we might advantageously give greater power to the President in the matter of legislation. One of the difficulties about a Congress--I say it with deference to that body--is that it does not know enough about the executive facts which ought to control legislation in the course of an efficient government. The introduction of cabinet officers on the floor of the House and the floor of the Senate to urge legislation on the one hand, and to point out the defects of proposed legislation, on the other hand, would furnish the necessary element. This would, of course, make it requisite that cabinet officers should be able to look after themselves on their feet. They would have to know their Department and be ready to answer such questions as are put to cabinet officers on the floor of Parliament.

President Wilson has inaugurated the policy of delivering his message to Congress personally. I think that is a good innovation. A Democrat could have made it, not a Republican. Washington had to go to Congress, so had Adams, but when Jefferson came in he said, "No, that is monarchical, and I will just write a letter to Congress," and so he did. Washington went once to the Senate and attempted to have the Senate concur with him in a treaty with the Indians. He took with him General Knox, who had frequently dealt with Indians. John Quincy Adams, in his diary, describes what happened as he learned it from a member of the Senate at that time. He says that in the conference, Washington found that every member of the Senate thought he knew more about the Indian treaty than General Knox. Whereupon, he, the father of our country, who has been represented as a model in every way, proved that he was no such "sissy" as some of his historians would like to make him out. His character was one which develops into grand proportions when you study it, but he was no mere steel engraving of copy-book perfection. When he got through with that particular session, he turned to Knox as he went out, and said he would be damned if he would come to the Senate again. Now I do not approve of profanity generally, but somehow or other I rather like that story because it lets in a little light on Washington and shows he was a man with good red blood.

The first power of the President that I wish to consider is the veto power. The English King has it, but never exercises it, i.e., he has not exercised it for two hundred years. If he attempted to exercise it under the present British Constitution, he would shake the throne and should he try it a second time he might not have a throne under him. The President, however, has the veto power under a provision of the Constitution. When he decides to differ with both Houses, certain members of demagogic tendency rise to say that the President is exercising a royal prerogative power, or that he is going back to the time of Imperial Rome. This might frighten an inexperienced man, but in reality it is mere bluster. As a matter of fact, the President represents the people in a much wider sense than any particular Congressional orator, for he was elected by all the people, while the Congressman was chosen by only one district. The Constitution says that if he disapproves of an act, he shall send it back with his objections and it enjoins upon him the duty of examining every act and every bill that comes to him, to see whether it ought to pass. He vetoes, therefore, in his representative capacity, with legislative and suspensive, but not absolute, power. A vetoed act is returned to the House, and if its supporters can succeed in getting a two-thirds majority in each House, the bill can still pass over his veto. This rarely happens, however, for the President can usually give reasons good enough to command the vote of at least the one-third of one House that is necessary to sustain his veto.

Share on: WhatsApp @Hash Facebook Tweet