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from the operations of government to our private daily walks. It results in those things which make up the wastes and burdens of society. It was but the other day that red tape in one of our great Departments almost paralyzed us as we were going to war, and we even hear the hope expressed from time to time that religious denominations discard the non-essentials to Christian faith and unite on common, fundamental ground. Especially does the human mind tend from observation and comprehension to analysis, subtlety, and finally casuistry. The most fantastic work that ever came from the serious, educated mind of man was John Locke's model constitution for Carolina.
In general opinion there are some causes of present conditions which directly touch the Bench and the Bar. I shall put down rather plainly some of the things that are said of us, not as entirely true in my opinion, but as worthy of most serious consideration. From time immemorial judges and lawyers have been the fair sport of humorous jest, and none could have taken it more good-naturedly and philosophically. But in late years it has taken on a more insistent, significant note and we should be quick to observe and understand it. We are the servants of society, not its masters, nor aloof from it. The greatest of all trusts has been committed to our care and fidelity. We are the chosen ministers of justice, that chief interest of man on earth, and we should not allow the atmosphere with which all in studious pursuits unconsciously surround themselves to dull perception of what lies beyond or get into a state of mind that repels the truths all others see. Hilaire Belloc said of one of his characters: "The Professor of Psychology was a learned man, and his sense of reality was not always exact." Note the conjunctive. Nor should we scoff at the critic, for history has justified him in all ages. The true critic, the one who does not boil at too low a temperature or see red, who regards the good beneath the evil and would cure, not destroy, has a useful and important place in society and his lash must sometimes cut to affect a hardened, customary wrong. I speak of the criticism which is impersonal, not of the sly, covert slander nor of the wanton abuse of all law and courts of justice which is as cheap
and tawdry as cursing in the gutters of Whitechapel. So much of political and public policy is involved in the work of our courts that the most illogical man in the world is the judge who resents or is impatient of criticism or general disapproval of his judicial acts. He should welcome the outside view and take an inventory. Observe Plato who, when told that the boys in the streets laughed at his singing, replied: "Then I must learn to sing better." The next illogical man is the lawyer who inconsiderately aids and upholds the judge. The confidence, respect and esteem of that great body of men from which the Bench is recruited should be earned with effort, not given lightly or perfunctorily. It is the duty of each to be helpfully corrective of the other. It is but fair to say that some of the criticisms of the judiciary are due to a misconception of their appropriate functions. In the army of progress they should not be scouts far in advance to explore the way, nor on the other hand should they ride in the rear with the sutlers to whom permanent rest is profit and enjoyment. But when ground is gained by the great body and occupied, there are law and order and the seats of justice. The complaints of the impatient and the tardy must be endured. Demands will be made to which a judge must not yield; to others he should yield quickly. When law is made or changed by constituted authority it should be regarded with an open, comprehending mind, and the true limits of judicial power carefully, very carefully, observed. Insistence otherwise from the extremes is insistence that we pull down the temple from within. But so acute is the criticism of today that the evil of my errors affects not myself alone, but is visited upon the earnest, unoffending body of the judiciary and even tends to impair the stability of those essentials to which all thoughtful men should hold fast. I will set down some of the things that are said of us, not as my own, for I am in no position to say them. If greatly pressed I fancy I would have to plead guilty to some and would fear conviction of others. They crowd the books, the periodicals and the newspapers of the day and are talked about in the common highways. In part, they relate to substantive law more than to procedure, but all, whether true or over
drawn, are contributing causes of the movement to make the administration of the law more simple, direct and efficient. It is said:
That judges, and also lawyers though in less degree, lack human sympathy; that the substance of the human interests they deal with is subordinated to the abstractions they make of the principles of the law; that they especially fail fully to comprehend the spirit of efforts for social and industrial betterment and when statutes come forth they are regarded as strange births, whose missions are not understood; and that they do not keep both hands warmed at the fire of life.
That they are generally in opposition to progress and improve. ment. The Bench and the Bar are among the great conservative elements of the country. The influences of their calling make them so. Wisely ordered, conservatism in the sense of thoughtful carefulness is a virtue. It tempers undue speed, gives time for reflection and makes advancement sound and enduring. But opposition to all change is an evil. It is a serious evil when it attempts to thwart or shunt change that has been legislatively enacted; and that is sometimes done by saying a statute is against common right and must be strictly construed, or by reading it on the common law as though the common law were a permeating, ever-present restraint. It has frequently been said that the Field Code of 1848 in New York was judicially put to death in those ways. There is significance even in the very title of the subject of our discussion. The movement for simplification of procedure is termed a struggle.
That they blindly and irrationally worship at the shrine of precedent. Of course the law must be uniform, today as yesterday, and for John Doe as for Richard Roe, for that is of the very essence of justice. Otherwise the life, liberty and property of the citizen would not be safe. But the mental accumulations of the past are not always sound or always authoritative; sometimes a precedent embalms an error instead of a principle. If the lowliest magistrate of first instance should deliver an unsound opinion on a new question in law and it should get into the reports it would likely act like a snag in a stream which
slowly gathers increment and finally splits or turns awry the true and natural current. Frequently courts reach conclusions with expressed reluctance and debit them to precedent; and lawyers regard a cause well-nigh won on finding a case or two to cite. On many clear-cut propositions there are two opposing columns of authority and sometimes height ranks with quality— occasionally they are found in the same court of last resort. Unhappy but unconscious turns of judicial phrase are followed into error, and careless statements of settled principles produce an evil brood.
That they deal in technicalities, and exalt the hidden meanings. Nice differences are discovered and subtle distinctions are drawn. Deviations from little rules of practice are urged and adopted and assume an unmerited importance. Simple statutory remedies intended as helpful and cumulative are construed as exclusive, and, the field of operation being ill-defined, new and dangerous perplexities are created. Though statutes may be framed rather roughly or coarsely for the practical affairs of life, they are taken into a cloister for metaphysical analysis. Ever since the earnest, truth-seeking lawyer tempted Christ with questions the plain and simple things have been looked at doubtingly. Is not more meant than meets the eye? So it is that what are called "jokers" in legislation are so readily sought for, found and established. Fairly obvious language is given shrewd and distorted twists. An instance of this is told: An indictment charged that the accused "did unlawfully obtain from J. D. his money," etc. It was most earnestly argued that the indictment was fatally defective because according to the words employed the money may have belonged to the accused himself. That was a case where ancient usage failed of observance. On February 3, 1660, Samuel Pepys, who was not a master of English, but whose rugged sentences are easily understood, noted in his diary the following: "In the meantime we sat studying a Posy for a ring for her which she is to have at Roger Pepys his wedding." Many a judge upon the bench has listened to able, ingenious, subtle arguments and yet heard through the open windows the roar of traffic in the street below,
where were thousands to be affected and none to understand. And when opinions come down we hear it declared that comment on the results will be withheld until they are closely studied. Sometimes both sides win; one practically, the other theoretically.
That prolixity is the great besetting sin. Directness and simplicity are found only in the lower walks. A merchant suing a delinquent customer simply files his account with a near magistrate. Everybody understands what he means by his bill of particulars that the debtor at the times specified bought the goods described at the prices set forth, and that the bill is due and he fails to pay. But if the amount is considerable and the merchant employs a member of the Bar to bring action in a higher court, what happens? No inferences or implications obtain in that higher atmosphere of learning and experience, a place where, if ever, they should. So in drafting his pleading the lawyer drives a substantive and six and by a plentiful use of "saids" and "aforesaids" he distinguishes the parties from all other persons living or dead and describes the subject matters as accurately as if attached as exhibits. A simple bill in equity for the foreclosure of a mortgage, instead of being in a few brief paragraphs telling the story as it would be told amply and intelligibly in a book or newspaper, is crowded with surplusage and repetition. The case goes to an appellate court on a record that might be tithed to advantage. There was a case, an ordinary criminal case, in which the record covered more than three thousand printed pages, of which the assignments of error took more than four hundred. Besides, there were over eight hundred pages of printed briefs. The opinions of the courts? The books speak for themselves. It is said that the law, the real law, is being swamped. It is common remark that the ablest lawyers draft the most concise pleadings, submit the briefest briefs and make the shortest arguments. There are geniuses among them who think and act that way. They go, as it were, straight through the tangled forest, with an instinct for direction. Others reach the same end, but what a tortuous trail they leave! Acute perception bent upon the ground notes the small dispensable