UC-NRLF 
 
 $B EbT 71 
 
 7 
 
The Case of the People 
 
 ■ against KO-W-y •- 
 
 The Lawyers and the Courts 
 
 Interviews with an 
 
 Outdoor Philosopher 
 
 Reported by Frank Cramer 
 
 Shakespeare : The first thing we do, let's kill all the lawyers. 
 
 —II Henry VI, Act IV, sc. 2. 
 
 DeWITT & SNELLINQ 
 
 eOOKSELLERS 
 
 TWO STQRE3"-g2:o fourteenth' sr. 
 
 Published by 
 
 FRANK CRAMER 
 
 Palo Alto, California 
 
 1915 
 
< 
 
 Copyright, 1915 
 
 by 
 Frank Cramer 
 
 ^ A^^ 
 
 
PREFACE 
 
 IF THE WORDS of my desert Philosopher fail to produce 
 effect, read the admissions of a great lawyer and 
 statesman, once a secretary of state and now a United 
 States senator. In a careful address before the Ameri- 
 can Bar Association in October 1914 Elihu Root summed 
 up the feelings of the people toward lawyers and courts, 
 sought to minimize the more violent opinions, and then 
 acknowledged as true nearly every serious charge that 
 has been made against American judicial methods. 
 
 He said that it is difficult to induce even the bar asso- 
 ciations to assist in the improvement of legal procedure; 
 that the laws are crude and slovenly, and that lawyers 
 probably make up a majority of every legislative body in 
 the United States ; that there has been and is now a 
 steady drift toward more complicated and technical ju- 
 dicial procedure; that the simplest rules are sufficient, 
 and that in highly complex international disputes sim- 
 pUcity of method is characteristic; that complexity of 
 method tends to bring about a denial of justice; that the 
 complex rules of evidence are merely a bad habit; and 
 that lawyers, instead of seeking simple justice, are apt to 
 turn the search into a delightful game of chance or chess. 
 
 The Reporter. 
 
 320669 
 
Digitized by the Internet Arciiive 
 
 in 2007 with funding from 
 
 IVIicrosoft Corporation 
 
 http://www.archive.org/details/caseofpeopleagaiOOcramrich 
 
TABLE OF CONTENTS 
 
 Chapter 
 
 ^ PAGE 
 
 I. Hog-tight Fences and Fence-running 
 
 Lawyers 7 
 
 IL A Criminal Makes a Monkey of the Law . 13 
 
 IIL Pickpockets and State Constitutions . . 20 
 
 IV. Solemn Farces 31 
 
 V. Fair Play, Time and Justice 39 \/ 
 
 VL Constitutional Intentions 47 
 
 VII. Progress by Evasion 53 
 
 VIII. Priestcraft and Progress 62 
 
 IX. Truth Forever on the Scaffold .... 69 
 
 X. Medical Science and Legal Casuistry . . 76 
 
 XI. Legal Verbosity 85 
 
 XII. The Unanimous Jury 89 
 
 XIII. Jury Stories 98 
 
 XIV. A Successful Revolt in California . . . 105 
 
 XV. The Railroad Commission at Work . . .114 
 
 XVI. Commission and Court : a Contrast . . .122 
 
 XVII. Virile Commissions and Impotent Courts . 130 
 
 XVIII. The Power of the Judge I39 "^ 
 
The Case of the People 
 
 AGAINST 
 
 The Lawyers and the Courts 
 
 I 
 
 Hog-Tight Fences and Fence-Running Lawyers 
 
 I HAD BEEN deputed to interview the descendants of 
 sundry great ones on the question, ''What is the 
 matter with things in general ?" My plans for doing 
 this were very complete, but I got no results except some 
 filtered, whey-Uke ideas from stragglers on the outskirts 
 of gentility. All sources of valuable second-hand thought 
 were closed to me either by pride or by the multitude of 
 experts already on the ground. I was learning the ama- 
 teur's hard lesson: "From him that hath not shall be 
 taken even that which he thinketh that he hath." I went 
 out into the desert to brood upon my general incapacity ; 
 and there, where I was seeking nothing but emptiness for 
 the expansion of my unhappiness, I unwittingly hit upon 
 a great thing. 
 
 On a bright and frosty morning, high in the desert 
 mountains, I stopped well up on the side of a cafion to 
 rest and study the scenery. Across the caiion and a hun- 
 dred feet higher than I, on a narrow shelf of a black 
 clifif, with more black cliff towering behind and above 
 him, stood an Ass, watching me intently with his ears. 
 He looked as steady as if I had been the subject of eter- 
 nal contemplation with him. I am sure that he had not 
 for an instant lost touch with me during all the time I 
 
•^^>**c' '; ' 7^^ CASE OF THE PEOPLE AGAINST 
 
 had been there. I felt a vague kinship with him; but 
 his mental steadiness became oppressive to me, and in- 
 creased my own tendency to be fussy about something, 
 no matter what. I crossed over and climbed the rattling 
 shale to a point near his pedestal ; and although I felt a 
 growing sense of intellectual disadvantage, went ahead, 
 merely to save the shreds of my self-respect. 
 
 He was statuesquely gracious, and I approached him 
 with a few prepared commonplaces such as I thought 
 best suited to the mind of a donkey. Out of this con- 
 strained effort to get acquainted there suddenly popped 
 the tremendous fact that he was the many-times grand- 
 son of the soothsayer's ass. Here in the great loneliness 
 I had come upon a direct descendant of one of the 
 earth's Great Ones, and I was suitably overcome. A 
 great flood of intellectual Hght, such as I had never sus- 
 pected myself able to sustain, came upon me. Baalam's 
 ass had recognized the Sword of the Lord when her 
 owner was fumbling the facts for money, and kings and 
 messengers misunderstood. And here before me was 
 her distant offspring brooding on the ways of men. If 
 he would but express even casuaK opinions about minor 
 matters I should not have climbed the toe of this moun- 
 tain spur in vain. I even hoped that since he was of a 
 species somewhat different from our own he might ut- 
 ter wisdom from a new angle. 
 
 I assumed that it would be proper to broach any sub- 
 ject to an ass with oriental slowness and indirection; 
 and when he reached down to bite off the only wad of 
 bunch-grass in sight it seemed like the culmination of 
 an hour of deep thought. But his mental ways were 
 very simple. He was reluctant to reveal his personal 
 tastes and habits, but yielded to my solicitation. He said 
 
THE LAWYERS AND THE COURTS 9 
 
 that he had been warming his tail in the morning sun 
 for two hours. He acknowledged that the saddle scars 
 on his back were caused by men who knew less about 
 packing than he did himself. His tastes were simple. 
 His general preference was for bunch-grass, the higher 
 up and the farther away from water it grew, the better. 
 But he did not reject delicacies. He had once eaten up 
 a kettleful of boiled prunes while his master was not 
 looking, and got a merciless mauling for it; but that 
 was the immemorial fate of the ass. He had eaten de- 
 licious pieces of bacon rind, and grocery bags smeared 
 with molasses; and had devoured much current litera- 
 ture in the shape of magazines. 'But he expressed the 
 conviction that this last would have been much better 
 every way if it had been left in its original state of wood 
 pulp. The reputed intellectual seasoning spoiled it, for 
 it was but hogwash. 
 
 As soon as we had reached a basis of intellectual 
 friendliness I bethought me of America's greatest moral 
 problem and asked him his opinion of our lawyers. 
 There was a long silence, as if a thought were slowly 
 unwinding itself; but when speech at last came forth 
 there came with it a string of oriental pearls in slow and 
 even discourse. He said: 
 
 'Tn ancient Rome the law gave a father life-long' 
 power over his son; he could even sell him. But to 
 mitigate inhumanity another rule provided that when a 
 father had sold his son three times his jurisdiction 
 ceased. This rule was used by friendly fathers to eman- 
 cipate their sons. Another law forbade a citizen to own 
 more than five hundred jugera of land. And then there 
 came an avaricious citizen who pitted the two laws 
 against each other. He emancipated his son by selling 
 
10 THE CASE OF THE PEOPLE AGAINST 
 
 him three times so that he, too, might take five hundred 
 jugera and thereby double the family's allowance. But 
 that old Roman suddenly found that the moral purpose 
 of the nation was against him. He lived in the crude 
 and early days; and his gruff old fellow-citizens not 
 only refused to let him have the land, but imposed a 
 crushing fine for his impudence. They did not see the 
 moral advisability of rewarding him for putting his nose 
 through an unintentional gap in the legal network. 
 
 "But by all the rules of practice that have for a gen- 
 eration governed your greatest American lawyers this 
 shrewd old Roman was within his rights. Both law and 
 logic were on his side ; he was technically correct. And 
 if this thing had happened here in 1900 A. D., he would 
 have taken each step under the advice of some lawyer of 
 high repute, would have paid him a big fee, would have 
 got the land, and been hailed as a Captain of Industry. 
 
 "My mind is somewhat slow and has a tendency to 
 dabble with the unintentional results of human activity. 
 A short fifteen years ago those words, 'Captain of In- 
 dustry,' were in everybody's mouth, the sign of Ameri- 
 can success; and now the definition of them has been 
 re- written in the minds of men and drags with it an odor 
 of moral contempt. And your Captain of Industry and 
 his lawyer have brought this upon themselves. 
 
 "My family have been immemorial observers of hu- 
 man doings, and the steady word has been passed down 
 to me that there has never yet been a hog-tight legal 
 system. Before that can be brought about the moral 
 strain becomes so great that something unexpected hap- 
 pens. Because leghorn hens are good flyers the wire 
 fences for them have to be very high. But now and 
 then one of them learns to climb the netting with her 
 
THE LAWYERS AND THE COURTS 11 
 
 wings and feet, and nothing but a roof of wire netting 
 over the chicken yard will stop her. The problem has 
 become so serious that the emphasis slowly shifts from 
 the fence to the flopping hen. The rules of sound eco- 
 nomic doctrine do the rest. The cost of so much wire 
 is out of all proportion to the value of the hen, and the 
 problem is solved by cutting off her head. The sim- 
 plicity of the solution is startling to all the parties in- 
 volved because there is no loss at all. The hen's climb- 
 ing tendency while alive has no deleterious effect on her 
 market value when she is dead, and a less ambitious 
 hen~can fill her place. There are not even any regrets^ 
 for the time of her own regretting has gone by. 
 
 'The opportunities for legitimate American enter- 
 prise have been the marvel of the world, but the great- 
 est talent of the nation seemed to busy itself with the 
 processes of evasion. The Captain of Industry, who 
 wanted to get through the fence, hired the lawyer to be 
 the midwife of crookedness. The average old board 
 fence, rail fence or brush fence was good enough for 
 all the cattle except the breachy steer, and no kind of 
 fence was surely proof against his genius. Instead of 
 feeding he walked and walked, seeking the weak places, 
 and always found them. His skill in opening fences 
 fairly crawled with consequences, because he not only 
 went into the corn himself; he led all the other cattle 
 through, made them morally restless and taught a gen- 
 eral contempt for fences. Then there was an economic 
 revolt ; the cost of repression was too great. And so it 
 came about that the breachy steer never served honora- 
 bly under the yoke, because he died young, usually at the 
 age of four years. 
 
 "You have labored long to make a hog-tight network 
 
12 THE CASE OF THE PEOPLE AGAINST 
 
 of your laws. But your fence-running lawyers, with 
 their breachy instincts highly trained, have made a tan- 
 gle of them. The truth is, all fence-runners are public 
 enemies ; and because the normal defenses against them 
 are always inadequate, contempt and wrath must in the 
 end come to the rescue. During the last ten years you 
 have shown some curiosity, and your attention has slow- 
 ly shifted from the fences to the cattle. There has been 
 much scolding and threatening, the acts of many of 
 your eminent business men are recognized as common 
 crimes; but so few of them are in jail that they take on 
 the solemn interest of museum specimens. 
 
 "A rush was made toward the breachy cattle, and 
 now you are going through a period of comic pathos. 
 The argument is made that if the fence-runners are not 
 allowed to break through into the corn the common herd 
 of stockholders will starve to death. There is the still 
 funnier fact that your lawyers are immune. First they 
 are paid to get their horns through the legal network, 
 and then they are paid to help keep their breachy cHents 
 out of jail." 
 
 I had not broken into the Philosopher's train of 
 thought, but now I said, 'Tt does seem asinine to tol- 
 erate a system under which the lawyers always win, 
 whether heads or tails come up." He retorted, "I re- 
 sent the use of the word asinine in this connection. An 
 ass who should try to do among us what your lawyers 
 do to your institutions would get his splint-bones kicked 
 out of his shins." With that he moved slowly down the 
 mountain to get a drink. But he stopped long enough 
 at one of the kinks in the zigzag trail to say, "And the 
 most of you do not know how the lawyer does this to 
 you, any more than the amateur knows how the expert 
 gambler always gets the money." 
 
THE LAWYERS AND THE COURTS 13 
 
 II 
 
 A Criminal Makes a Monkey of the Law 
 
 A FTER THE sarcastic reference to our stupidity I fol- 
 /\ lowed the donkey down, and last saw him soak- 
 -* *- ing his lips in a preliminary way before taking 
 the long postponed drink. It was that slow dignity, 
 which not even his thirst could break through, that op- 
 pressed me most heavily, even more than the blows of his 
 argument. The sting of the Burro's last remark rankled 
 and gave rise to sudden fits of desire to seek further ex- 
 planations or even pick a quarrel. But the facts of life 
 had been thoroughly displaced by daydreams, and I be- 
 gan to feel too inefficient to carry on even a debate. 
 One morning I laid myself out on a little patch of crum- 
 bling shale that sloped eastward on a hogback. A slight 
 rise of the ground served as a pillow, and I had selected 
 my couch so that the sun would warm me through as 
 it rose higher, and by the time that was done and it be- 
 gan to grow hot a small mountain mahogany would 
 swing its soothing shade athwart my whole body. By 
 this forethought I had expected to secure permanent 
 physical comfort for at least half a day without further 
 effort. 
 
 With great preliminary satisfaction I stretched my- 
 self out to receive the soothing warm rays of the sun, 
 and soon the old butterfly visions of my lazy mind were 
 parading before my attention. They came more and 
 more slowly with the increasing warmth and brought 
 with them a delightful half -conscious state, just pre- 
 
14 THE CASE OF THE PEOPLE AGAINST 
 
 ceding gentle slumber. When I was about to abandon 
 the last faint effort to stay awake enough to enjoy the 
 indulgence of a peculiarly attractive day-dream, there 
 was a sudden snap of wings and a world-wakening caw. 
 Kar'r'r. A nutcracker of the mountains had apparently 
 from pure wantonness dived out of the upper sky on his 
 way to water. I felt that nothing but malice could have 
 furnished that tremendous impulse; it must have some 
 personal relation to the disturbing of my comfort. At 
 any rate it wakened me. It was no use to raise my head 
 to see what particular culprit had thus violated my com- 
 fort, for all nutcrackers looked alike to me ; and by the 
 time I could lift my head this particular one would be 
 half a mile away in the depths below. 
 
 After a little I got up, stretched the wrinkles out of 
 myself, and zigzagged slowly downward. My way lay 
 past a little willow. It stood alone in the hot sun, de- 
 fiant rather than drooping, but with a shrunken look, as 
 if it had grown old while its youth was still upon it. 
 Near it was Lone Willow Spring, strangely out of place 
 on the hot hillside. There was only a little bit of water, 
 just enough to make the scarcity of it heart-breaking. 
 The ground around it, once wet, was hard and caked 
 where it had been puddled by the feet of thirsty burros. 
 The tracks were deep and dry, and around their edges 
 there was a delicate tracery of the imprints of the feet 
 of little birds who had come there to drink with wings 
 and bills agape. 
 
 And here was the Talking Jackass. He gave no sign 
 of life except a feeble swing of the tail as a protest 
 against a band of flies ; but from his lower lip a drop 
 of water fell at intervals, and there must have been deep 
 inward brooding. After a long while he put his head 
 
THE LAWYERS AND THE COURTS 15 
 
 down and held his mouth in the little saucer-like hole 
 with its pitiful few spoonfuls of water. I watched his 
 throat, but there was no sign of gulping. Slowly he 
 sucked all the water into his mouth, and after he had 
 lifted his head there was a gulp, followed by another 
 little one, like a faint afterthought. Then the drops fell 
 slowly from his lower lip again while he waited for 
 more to ooze out of the dying spring. There was no 
 hurry. Time was so abundant there, and even the small- 
 est results had to wait so long upon it, that life itself 
 seemed to creep but slowly over its vast stretches. I sat 
 on a rock and waited until he took no further interest 
 in the water. Taking a drink up there was a solemn 
 service. As soon as he moved away into the shade of a 
 cliff I re-opened the discussion. 
 
 "Is it possible," I said, "to analyze the situation and 
 get hold of the separate elements that make up a process 
 in which the lawyers play with loaded dice and the peo- 
 ple are always the losers?" 
 
 He answered, "The mental attitude of the American 
 people toward their judicial system has for many years 
 been a curiosity. Theoretically proud of it, they have 
 yet recognized their inability to extract a reasonably 
 good quality of justice from its workings. They will 
 not admit that the nature of the system gives rise to the 
 infinite variety of bad results. They accuse the judges 
 or the jury, they seek to tinker the details, but get no- 
 where. When they raise a nearly unanimous chorus of 
 criticism there is little or nothing in the way of con- 
 structive suggestion. Such attempts as are made to se- 
 cure a better quality of justice are for the most part at- 
 tempts to eliminate, to sidetrack, or cripple the judicial 
 system in the interest of more informal rules of fair 
 play." 
 
16 THE CASE OF THE PEOPLE AGAINST 
 
 In the hope of getting more specific criticism I asked 
 the wise old burro to sketch the defects of the system 
 for me. He gazed across the canon, as if studying the 
 complexion of the porphyry cliffs beyond, and then took 
 up his parable. "Consider some cases. You know your 
 lawyers and judges are forever studying cases to find 
 out what to do next. You and I can profitably consider 
 actual experience in order to draw out the reasons for 
 the general situation. Practically all the work of your 
 courts could be used for criticism. The number of cases 
 that justify the worst criticisms could be run up to tens 
 of thousands. They are not sporadic or unusual. Some 
 are typical of common experience and some are what 
 may be called the choice fruit of the system when it does 
 its perfect work. 
 
 "A San Francisco lawyer in the prime of life left his 
 wife and children, went to Chicago with a young woman 
 and married her; and within a few weeks returned to 
 San Francisco and resumed his legal practice. He was 
 arrested for bigamy, and after a long and tiresome pre- 
 liminary struggle was brought to trial. His wife proved 
 her claims on him by her own testimony and that of her 
 children, by their neighbors and by several physicians, 
 by the marriage certificate, by the priest that married 
 them and by the witnesses to the ceremony. He calmly 
 denied that he ever married her; and claimed that it 
 was her sister whom he had married and who had died 
 before the trouble began. With this dream-like defense 
 he kept the courts busy and the newspapers alert for a 
 long while. Very near the close of the long trial there 
 was a postponement of the case for two or three days. 
 Well aware that there was absolutely no merit in his de- 
 fense, he took advantage of the lull in the case and 
 
THE LAWYERS AND THE COURTS 17 
 
 slipped away to British Columbia with the young wom- 
 an. It cost several months' time, about $15,000 in 
 money, and a good deal of effort on the part of the state 
 of California, the province of British Columbia, the fed- 
 eral government at Washington, and the Dominion gov- 
 ernment at Ottawa to get him back. Fearing that they 
 might not be able to prove actual bigamous relations 
 against him, the local authorities brought him to trial on 
 a new issue. 
 
 "His lawful wife had sued him for maintenance; 
 and in his defense he had sworn that she was not his 
 wife. On this ground he was arrested and tried on a 
 charge of perjury. Another long trial bristling with 
 technicalities, of which he is a past master, ended in a 
 disagreement of the jury. The jury was out for thirty 
 hours and voted nine for conviction and three for ac- 
 quittal from start to finish. He had had an opportunity 
 to see these three men while the jury was being chosen; 
 and the rest of the jury did not hesitate to express the 
 conviction that something besides the evidence had de- 
 termined the vote of the three. 
 
 "In order to have a still more perfect ground for 
 prosecution, if such a thing were possible, the district at- 
 torney, instead of having him re-tried on the old perjury 
 charge, brought him to trial on a new charge of having 
 perjured himself again at the perjury trial. There was 
 another long, hard fight, and in the end the jury found 
 the defendant guilty. The city had at least twelve su- 
 perior judges of its own but he compelled them to call 
 in judges from the outside to preside at the last two 
 trials. The presiding judge at the last trial sentenced 
 him to prison for fourteen years, the longest sentence 
 that could be imposed. Then many months elapsed, dur- 
 
18 THE CASE OF THE PEOPLE AGAINST 
 
 ing which he repeatedly appeared before different su- 
 perior judges of the city, the state Court of Appeals, 
 the state Supreme Court, and the federal courts, with 
 his various pleas and appeals. The great earthquake 
 destroyed all the records in the cases and as soon as the 
 judges began to do business again he began to apply to 
 the courts for various kinds of rehef. 
 
 "About a year after the earthquake he was still suc- 
 cessfully resisting the attempt to get him into the peni- 
 tentiary. But they did get him there. That is the only 
 flaw in the case. And even after he was committed, he 
 continued to file pleas in the various courts. 
 
 "Tens of thousands of common cases could be cited 
 to illustrate the various phases of American judicial in- 
 efficiency; this case is remarkable only in the fact that 
 it illustrates so many of the possibilities at one time. It 
 shows what one lawyer can do single-handed to bring 
 the law and the courts into contempt when his case is 
 one of coarse and brazen crime, the proof of it such that 
 a six-year-old child would know its significance, his de- 
 fense absolutely without merit, and his weapon nothing 
 but the network of technicality that your judicial meth- 
 ods place in the hands of the criminal. He was not even 
 rich; and had to conduct most of his defense himself. 
 He showed what pluck, and intelligence of a not very 
 high order but shot through with cunning and braced 
 with years of experience as a shyster, could accomphsh." 
 
 I suggested that perhaps the judges and lawyers ha,d 
 lived and practiced in an atmosphere of technicahty and 
 so contributed unnecessarily to the general fooHshness. 
 But he replied, "It happened that the judges and law- 
 yers were capable men who did their utmost to serve the 
 state; and the case was not compUcated by pubHc ex- 
 
THE LAWYERS AND THE COURTS 19 
 
 citement, partisanship or political motives of any sort. 
 It was a contest between a strictly private, unprivileged 
 citizen without social or other public influence and a 
 great state. And the case occurred, not in a new or 
 backward state, where judicial practice might still have 
 been unsettled, but in a state peculiarly rich in legal ex- 
 perience on account of its rapid development and the 
 variety of its moral, commercial and political interests. 
 The more elaborate cases in your judicial history, like 
 this one, merely show the shameful possibilities of civic 
 humiliation." 
 
20 THE CASE OF THE PEOPLE AGAINST 
 
 III 
 Pickpockets and State Constitutions 
 
 1HAD GONE away to consider the situation, but fell 
 asleep at once in the shade of a crooked little moun- 
 tain pine. When I awoke a buzzard was sailing in 
 great perfect circles far up in the gray hot sky. There 
 was such a restful certainty about his movements that I 
 could close my eyes and time his return to a given point. 
 Now and then he moved farther out as if his motion 
 had been perturbed by some distant interest; but he al- 
 ways came back. There was no rush or sign of fret- 
 ting. He seemed in league with endless Time. This 
 was all very comfortable because it started no sudden 
 impulses to do anything, and required no physical ex- 
 ertion except a slight motion of the eyelids and a little 
 rolling of the eyeballs. After a while, however, those 
 very elements of ease and certainty took on an ominous 
 significance. That buzzard had his eye on me. His 
 large and sweeping patience took on the aspect of a vis- 
 ible doom. What stood between me and the ravenous 
 activity of that buzzard? And others were coming to 
 see what he was looking at. I sat up and they all went 
 away. 
 
 I went back, and found my friend the Ass only a few 
 rods from where I had left him. His mind seemed to 
 have stopped working as soon as he had uttered the last 
 word, and now it started at the place where it had quit. 
 "In a Chicago case of conspiracy seven men were put 
 on trial and finally found guilty. But the court spent 
 
THE LAWYERS AND THE COURTS 21 
 
 fourteen days, and three hundred and seventy-two men 
 were examined before the first juryman was secured; 
 and it took eleven weeks and the examination of one 
 thousand nine hundred and thirty-one men to get twelve 
 jurymen. The case cost Chicago about $35,000; and it 
 was only a plain case of cold-blooded slugging. The 
 victim was badly hurt and left exposed in the snow, 
 where he contracted pneumonia, from which he died 
 later. To the common sense of the people the case was 
 plain and easy; but to the criminal court it was an all 
 but insoluble problem, and all because the rules made it 
 so. There was one gleam of common sense in the fog 
 of technicality. After the first juror had been secured 
 the prosecuting attorney declared that he would ask the 
 state legislature to change the law relating to the selec- 
 tion of jurors. No matter at what point the system is 
 touched, it breaks down under a real test." 
 
 I called attention to the fact that in this case pubUc 
 excitement and partisanship had handicapped the pro- 
 cesses of the court. The Donkey solemnly admitted it 
 and waxed sarcastic over a system which at its best 
 does not perform well the functions for which it is de- 
 signed, and breaks down every time any external strain 
 is put upon it. 
 
 "But the two cases hitherto considered were crim- 
 inal cases," I said ; "one in a far western state, the other 
 in a great city where the elements of civic danger lie 
 close to the surface and are easily stirred. They might 
 without a great stretch of feeling be regarded as unfair 
 tests; in the field of civil justice it might be found that 
 the processes work satisfactorily." 
 
 "Very well," answered the long-eared Philosopher, 
 "let us take the state of Iowa, where there are no big 
 
22 THE CASE OF THE PEOPLE AGAINST 
 
 cities, where the population is mostly native American, 
 where the social and political sentiment and the modes 
 of public behavior are typically American, and where 
 even the forms of local government are of the middle 
 type, blending the best of New England with the best 
 of the forms further south. And let us choose a civil 
 case, one that concerned the whole people and the final 
 decision concerning which would affect the hfe of the 
 state. 
 
 "Some years ago the liquor amendment to the Iowa 
 state constitution passed both houses of two successive 
 legislatures, was submitted to the people, was carried by 
 a large majority of the votes of the state, was proclaimed 
 by the governor, and went into effect. The people were 
 as patient as the passing years while they carefully met 
 the requirements of the constitution at every step. But 
 a careless clerk, backed by a judicial system that gave 
 more weight to a slip of the pen than to the definitely 
 expressed purpose of a sovereign people, was stronger 
 than two legislatures, the governor and the state itself. 
 One house of the first legislature that passed on the 
 proposed amendment failed, through the carelessness of 
 the clerk, to spread the amendment in full on its journal. 
 When a liquor case under this amendment was brought 
 before the state supreme court, that court held that the 
 amendment had not been passed and was wholly void. 
 The fact that the legislature had actually passed on the 
 amendment was notorious. In this case the state su- 
 preme court served no purpose except to destroy the 
 work and will of the people. It crawled among the dead 
 leaves and found a bug, but never saw the general land- 
 scape. 
 
 "Listen: if an ordinary ass should do, in the course 
 
THE LAWYERS AND THE COURTS 23 
 
 of his asinine duties, anything like what was done in 
 that case, he would be hobbled, tied to a telephone pole 
 with a double rope, and beaten from his ears to his tail 
 with a fence stake until exhaustion overcame the beater. 
 Your system has developed in such a way that error is 
 the most prominent feature of court procedure. Error 
 haunts the thought from the filing of the complaint to 
 the uttermost act in the drama, until terror of it hovers 
 over every judicial act. 
 
 "It does not matter whether the question at issue is 
 great or small, the same intellectual fog has prevented 
 the courts from looking over the tops of their law books 
 at real life. In St. Louis, Missouri, as late as 1914, a 
 man who had already been tried three times on the same 
 charge was convicted of picking another man's pocket, 
 and sentenced to two years in the penitentiary. He was 
 granted a new trial because one word was wrong in the 
 court's instructions to the jury. The instruction defined 
 larceny as 'wrongful or fraudulent stealing, taking or 
 carrying away.' The upper court held that 'and' should 
 have been used instead of 'or'." 
 
 'T admit," said I, "that unimportant errors have been 
 used to overthrow the work of the trial courts, and that 
 this has made the work of those courts slow and uncer- 
 tain. But in the long run the upper courts have laid 
 down the lines of safety and if the lower courts will fol- 
 low them there need not ordinarily be any fear of re- 
 versal. A substantial body of sound opinion has come 
 to serve as an anchorage." 
 
 "Oh yes." The Burro made another of those admis- 
 sions that so often proved fatal to my point of view. 
 "Sometimes that has been true; but even that accumu- 
 lation of so-called sound opinion of the courts of appeal 
 
24 THE CASE OF THE PEOPLE AGAINST 
 
 has been upset often enough by those courts themselves 
 to destroy its value and to remove the last shadow of 
 certainty. Some years ago a young man murdered two 
 girls in succession in a church in San Francisco. Every 
 known device was used by skilful lawyers to delay the 
 trial and defeat justice. It took three years to try the 
 man and dispose of his appeals to the Supreme Court 
 of CaUfornia and of the United States. Until after he 
 was hanged there always seemed some chance that he 
 might escape; and no one dreamed that anything had 
 been left undone to save his wicked neck. 
 
 "One of the ablest judges on the Coast presided at 
 the trial and gave the charge to the jury. He had 
 guarded the long and dangerous process of the trial with 
 the utmost care against the possibility of error, and 
 there were no flaws that the ablest lawyers could dis- 
 cover. Because this judge's charge to the jury had 
 stood the fiery test of state and federal appeal, other 
 judges, in several later important murder trials, used 
 the same language in framing their charges to the ju- 
 ries. In one of these later cases an appeal was taken 
 to the state Supreme Court, and the murderer was 
 granted a new trial on the ground that the judge, in his 
 charge to the jury, had said things which under the law 
 he should not have said. Several other murderers who 
 had appeals pending were given new trials, because in 
 all the charges to the juries the same well tested lan- 
 guage had been used. Among them was a faithless 
 woman who sent poisoned candy across the continent 
 and killed a faithful wife. Five years after the murder 
 she had been convicted twice, but was still Ungering in 
 a cosy corner room of the county jail, awaiting sentence 
 on her last conviction. Is it any wonder that trial 
 
THE LAWYERS AND THE COURTS 25 
 
 judges are at a loss about their own positions and han- 
 dle their cases under the constant dread of reversal?" 
 
 In the hope that I might blunt the edge of this illus- 
 tration by which he sought to prove that the trial courts 
 are kept under an insufferable moral strain and that I 
 might even destroy his whole argument, I said, "This is 
 another case from California and I have a suspicion 
 that technicality may have run riot out there and that 
 elsewhere in the Union saner conditions may prevail. 
 In California at least this subject is no longer a matter 
 for argument ; for an amendment has been added to the 
 state constitution forbidding the courts of appeal to set 
 aside judgments or grant new trials because of technical 
 errors unless after examination of the whole record it is 
 found that there has been an actual miscarriage of 
 justice." 
 
 "You got closer to a clear statement of the real sit- 
 uation just then than you seem to realize," softly replied 
 this Professor of Procedure, apparently with the inten- 
 tion of throwing another hammer. "If you were run- 
 ning your birch canoe through the rapids and stove a hole 
 as big as your head in the bottom of it on a sunken rock, 
 which would you do first, bale out water with your hat 
 or jerk off your coat and plug up the hole with it? The 
 amendment to the California constitution is like cutting 
 off the lower six inches of an athlete's trouser legs to 
 give him more liberty of action. There is in many parts 
 of the Union and in the federal courts a slow movement 
 in the direction toward snipping some of the threads of 
 complexity, but hitherto the chief value of these little 
 attempts has lain in the astounding fact that even the 
 smallest changes are valuable, and that nobody is hurt. 
 The chief problem is not merely to reduce the chances 
 
26 THE CASE OF THE PEOPLE AGAINST 
 
 of reversal but to cut off largely the privilege of appeal 
 in order to give a reasonable degree of certainty to the 
 work of the trial courts. 
 
 *'A man in Milwaukee committed the crime of bri- 
 bery. The grand jury indicted him and every plea and 
 process known to their legal system was invoked to de- 
 lay the trial of the real issue — the guilt or innocence of 
 the defendant. By desperate efforts the district attor- 
 ney secured a trial and conviction. An appeal was 
 taken to the state Supreme Court, which granted a new 
 trial. Not only was the verdict set aside, but the court 
 went out of its way to rebuke the trial judge for the 
 language that he used in his charge to the jury. 
 
 'The language used by the judges throughout the 
 state and frequently approved by the Supreme Court is 
 as follows : 'In determining the credibility of witnesses 
 you may consider his or her interest in the result of the 
 trial in connection with all the testimony and circum- 
 stances surrounding the alleged commission of the 
 crime.' The following is the language that the trial 
 judge used in his charge to the jury and for which he 
 was rebuked by the highest court in the state: 'A wise 
 rule which jurors may adopt for their guidance where 
 there is a conflict of testimony between witnesses, is to 
 give credence to the testimony of the witness or wit- 
 nesses who have least inducement through interest or 
 other motives to testify falsely.' 
 
 "Outside of judicial circles this variation in language 
 cannot even be classed as error. The only crime the 
 trial judge committed was to make easily understood 
 what the law intended should be done with conflicting 
 testimony, and what every juror of experience would 
 do without any instructions at all. If such a thing must 
 
THE LAWYERS AND THE COURTS 27 
 
 be regarded as an error it is only one more proof that 
 the system is so intricate that in all human probability 
 error will be committed in every trial, and then it is al- 
 lowed to affect the result fatally. Chronic inefficiency 
 has taken hold of your courts, not because you are not 
 morally strong enough to deal out justice vigorously 
 and promptly, but because you have tangled yourselves 
 up to such an extent in the meshes of method that the 
 primitive power to draw manly conclusions and produce 
 results can no longer exercise itself." 
 
 "But if the higher courts did not bridle liberty of 
 expression on the part of trial judges, where," I asked, 
 "would the general confusion end?" 
 
 The Ass replied, "The trial judge, having heard the 
 testimony and watched the actions of the witnesses, and 
 having kept in close touch with the jury, so that he 
 knows just what difficulties the jury in each case has to 
 deal with, is better qualified to determine what form the 
 instructions should take than any court of appeal. 
 
 "And it is not merely by interfering with the trial 
 courts that the higher courts lay heavy burdens on the 
 community. There is neither legal nor moral necessity 
 for leaving the constitutionality of a law in doubt when 
 once a case under it has been presented to the highest 
 court in the state. But it is a not uncommon practice 
 to decide a given case on a minor technicality and dodge 
 the main issue. 
 
 "The city of Los Angeles had in its charter a pro- 
 vision which allowed the people to vote an undesirable 
 official out of office at a special recall election. In 1904 
 the people of one of the city wards became convinced 
 that their alderman had betrayed the public interest, pe- 
 titioned for an election, voted him out of office and 
 
28 THE CASE OF THE PEOPLE AGAINST 
 
 elected another man in his place. The ousted council- 
 man brought mandamus proceedings against the city 
 auditor, after the latter had refused to draw a warrant 
 for his salary after his removal from office. It was the 
 first case that had been taken to the courts, and the con- 
 stitutionality of the recall provision was assailed before 
 the state Supreme Court. Since that time the recall has 
 proved a powerful weapon in the efforts of the people to 
 control the conduct of their officials. But the Supreme 
 Court calmly ignored that part of the appeal which ques- 
 tioned the validity of the recall provision, and declared 
 the man's removal from office illegal because the city 
 clerk, in his certificate, had made a purely technical er- 
 ror in the use of words. Other cities and towns were 
 greatly interested in the Los Angeles recall provision 
 and would have adopted it if it had been pronounced 
 constitutional. But this wholesome possibility was 
 brought to nought by the action of the court in leaving 
 the vital point undecided and seizing on a petty detail 
 for the disposal of the case. When the fate of the law 
 itself lies in the lap of the highest court even an ass like 
 me would see to it that the question of constitutionality 
 was not dodged." 
 
 I suggested that it was a great economy of effort to 
 base the decision in the case at issue on a detail that was 
 considered important enough for the purpose. Why have 
 the court increase its labors unnecessarily? But the Old 
 Fellow again sought to outflank me. He went on: 
 "You raise the whole question of the spirit of the upper 
 courts. They have two great functions: to determine 
 whether individual cases have been tried in accordance 
 with the laws and the constitution — such decisions af- 
 fect at most a few individuals; and to determine the 
 
THE LAWYERS AND THE COURTS 29 
 
 constitutionality of the laws themselves — and here the 
 interests of the whole community are affected. With 
 those courts it is usually merely a matter of choice 
 whether they will deal promptly with the great interests 
 of the people or leave them hanging in a doubtful bal- 
 ance." 
 
 I suggested that such instances are not so numer- 
 ous as to indicate that it is a conspicuous practice on 
 the part of courts of last resort to shy at decisions con- 
 cerning the constitutionality of laws when that question 
 is placed definitely before them. The old Burro gave 
 a vicious stamp with one front foot ; I could not be sure 
 whether it was an expression of anger or only an at- 
 tempt to intimidate a fly. But I had only succeeded in 
 eliciting the destruction of my own opinion. He said: 
 
 "As if all things had been working together to prove 
 you wrong, the Supreme Court of the United States 
 has just now, in 1914, furnished an example of the same 
 practice. The State of Oklahoma had passed a law for- 
 bidding railroads to furnish dining or sleeping accom- 
 modations to anyone except whites. When the case 
 came up on appeal, the question of the constitutionality 
 of the law was brought squarely before the United 
 States Supreme Court. This tribunal, instead of facing 
 the issue, did not deal with it at all because there was 
 no record that a negro had actually demanded accom- 
 modations and been refused. The decision not to de- 
 cide squarely on the main question will leave the validity 
 of the law hanging in the air for years to come. It was 
 only a question of procedure that thus turned a serious 
 matter into a farce. The judges were apparently inter- 
 ested enough in the main question to inspire a majority 
 of the court to hint that the law is unconstitutional. 
 
30 THE CASE OF THE PEOPLE AGAINST 
 
 Wasn't it a great triumph of intellectual and moral sense 
 to leave the question undecided because the record did 
 not include proof that some one negro had tried to get 
 accommodations, when the law itself was proof that all 
 the negroes in Oklahoma were deprived of the chance 
 of getting it?" 
 
 The warmth of the discussion could not keep off the 
 mountain chill; and I think we both felt that he had 
 opened a subject too vast to be dealt with in the night. 
 I left him and crawled into my sleeping-bag to brood 
 over the general unwillingness of an ass to accept any 
 practices as useful merely because they were habitual. 
 I felt certain that there would be a great tearing of cloth 
 before we got through, for neither of us was averse to 
 pursuing the subject to the end. 
 
THE LAWYERS AND THE COURTS 31 
 
 IV 
 
 Solemn Farces 
 
 BEFORE I found the Open-Air Philosopher again he 
 had drifted several miles down the canon. Al- 
 though he could get along comfortably by slowly 
 sucking the bit of water out of his own tracks at Lone 
 Willow Spring, he evidently dreamed of abundance, too. 
 For now he was standing directly across the trail, half 
 in shadow and half in the sun, where he could hear the 
 pure mountain water gurgle in a great spring out of the 
 base of a vertical cliff. It played its way into the sun 
 and lost itself in the gravel below. By the water where 
 he stood there were a few square rods of luxuriant life, 
 a crowded little oasis of clematis, grapevines, goldenrod, 
 willows, bees, beetles, sparrows, a quail. There was a 
 faint suggestion of the hot moisture of a swamp. But 
 a few feet above his tail in a crevice of the cUff, was the 
 desert — a stunted, gray and sleepy sagebrush. 
 
 "No better book of jokes for the American people 
 could be written," he said, "than a collection of legal 
 errors on which appeals and reversals have been based. 
 But even such intellectual folly could be tolerated if the 
 effect of error were even-handed. If a man commits em- 
 bezzlement or bribery, unless he is prosecuted within a 
 given time the statute of Hmitations runs against his act, 
 and thereafter he can be as independent as those who 
 have behaved themselves. But if a board of school trus- 
 tees issues bonds and anywhere in the compUcated pro- 
 cess commits a petty, unintentional error, that error has 
 
32 THE CASE OF THE PEOPLE AGAINST 
 
 perpetual force and may even deprive an honest investor 
 of the money that he paid for the bonds. It is small 
 comfort to know that such errors would have absolutely 
 no effect and would in most cases never be known, if 
 there were not a special class of men whose efforts were 
 given over to nosing about for them. 
 
 "In the old marriage banns an opportunity was given 
 to an objector to the marriage to 'forbid the banns or 
 forever hold his peace.' The objector had his oppor- 
 tunity but by neglecting it 'he lost it. Only in your 
 courts is opportunity perpetual, and even there only for 
 the criminal and such as have some motive for blocking 
 public intention. In a little town there was an ordinance 
 against gambling with slot machines. Some cigar deal- 
 ers were arrested under its provisions and one of them 
 brought to trial. The prosecution was effective and the 
 trial was more than half over when the defense, seeing 
 that the day was going against them, suddenly sprang 
 on the court the statement that the complaint was defec- 
 tive. ■ On that ground the case was thrown out of court 
 and the whole subject was dropped. The men who had 
 collected the evidence were honorable and busy men and 
 declined to trifle with the business any longer and mere- 
 ly make themselves the laughing-stock of petty criminals 
 by trying to bring them to justice. The law-abiding 
 citizen loses his opportunity by neglecting it. Why 
 should not the man who is probably a criminal be com- 
 pelled to raise all questions about the form of the com- 
 plaint before the trial begins? It would deprive him of 
 no rights and would prevent him from mocking at the 
 solemn processes of the court." 
 
 ''Do you really believe," said I, "that such instances 
 are common enough to spoil the quality of justice? And 
 
THE LAWYERS AND THE COURTS 33 
 
 if the point was insignificant, why did not the trial jus- 
 tice rebuke the trick and go on with the case?" 
 
 "He did not dare to go on with it because he was 
 afraid of his own shadow. He rightly calculated that 
 the chances were against the triumph of common sense; 
 he concluded that it would be better to start over again 
 than take a chance with loaded dice. Such cases have 
 been so common that they destroy one of the most es- 
 sential elements of justice — certainty. Can there be any 
 intellectual or moral defense for such a performance as 
 this ? A man in San Francisco committed petty larceny, 
 was tried, found guilty, and sentenced to six months in 
 the county jail. After he had served two months of his 
 sentence someone found out that in writing out the com- 
 mitment the clerk had left blank the space intended for 
 the words 'six months in the county jail' ; and for that 
 reason the superior court released him on habeas corpus 
 proceedings. It did not matter that he had committed 
 the crime and a competent court had sentenced him to 
 six months in jail. If a farmer had sold a wagon-load 
 of potatoes, but decided that he could not collect pay 
 for them because he had forgotten to write the amount 
 down formally in his account book, he would be taken 
 before the insanity commissioners for inspection; but 
 judges, alas ! they can do things to each other." 
 
 It was sultry between the vertical canon walls, and 
 the silence was so perfect that we heard the echo of a 
 little bird's musical whistle. I was very drowsy, and he 
 ceased talking; but a cool draught came from some- 
 where out of the sky. After he had stretched his lower 
 jaw he opened a new attack. 
 
 **Once upon a time," he said, "one boy told another 
 there was a cat around the corner of the barn. Proof 
 
34 THE CASE OF THE PEOPLE AGAINST 
 
 was demanded. He laboriously cut off some hair with 
 a dull knife and brought it round the corner. When he 
 was made to understand that hair was no proof of a 
 live cat, he brought in turn the cat's whiskers, one ear, 
 several toe nails, the end of the tail, and at last a few 
 drops of warm blood. But these were all merely frag- 
 mentary proofs and each could be accounted for with- 
 out a living cat. The mewing of the animal was only 
 inferential evidence, and it could easily have been imi- 
 tated by a skilful boy. Suddenly the one who had 
 brought the proofs told the other boy to come around the 
 corner of the barn and look. But he would not go and 
 always insisted that the other had not proved what he 
 said." 
 
 "Your parable," I said, "is more ridiculous than fun- 
 ny; what is its appUcation? It is an earthly story, all 
 right ; but what is its heavenly meaning ?" 
 
 "Yes," he said, "it is more ridiculous than funny; 
 but not so bad as solemn court records. In San Fran- 
 cisco in 1904 a far-reaching conspiracy to stuff the bal- 
 lot-boxes at the primary election was uncovered. The 
 evidence of the crime was indisputable. The names of 
 the perpetrators, the time, and other data had been care- 
 fully taken down in writing and the evidence was all 
 corroborated. This treason against American citizen- 
 ship was so bold and undeniable that it seemed to be 
 only a matter of form to send the guilty to the peniten- 
 tiary. Two were indicted for ballot stuffing, one for 
 perjury and one for subornation of perjury, and the 
 courts were asked to oust the board of election commis- 
 sioners for malfeasance in office. Every available de- 
 vice was used to delay and upset the cases. When a 
 trial was finally secured for the first man the whole of 
 
THE LAWYERS AND THE COURTS 35 
 
 the first three days was spent in an attempt to prove that 
 a primary election had been held. At the end of a year 
 or more two of the poor wretches were sent to prison, 
 but all of the politicians involved went scot free. In a 
 parable such performances look ridiculous. In a gang 
 of boys they would be hooted and the perpetrators 
 kicked to improve their intelligence." 
 
 "It seems incredible," said I, "that such conditions in 
 the most important institution of the people would be 
 tolerated at all ; there is a lingering mistrust in my mind 
 concerning the cogency of the cases you cite." 
 
 He replied, "Your moral depression would be even 
 greater if you attended the courts and saw how these 
 same elements work themselves out, first in one way and 
 then in another, often causing slight delays and pro- 
 ducing offensive situations, requiring tremendous energy 
 to produce small results or none at all. Probably your 
 greatest shock would come from the observation that 
 practically all of the common methods of despatching 
 business are carefully avoided in the interest of a theo- 
 retical perfection that coughs and chokes in the fumes 
 of its own by-products." 
 
 "I cannot credit the evidence from sheer inability to 
 believe that a highly civilized people would exhibit such 
 asinine stupidity. Why is not the whole system over- 
 turned ? Anarchy would not be much worse." 
 
 I was leaning back against the sheer wall of the cliff 
 with my hands behind me, and the ass was facing me. 
 He still wore an old shoe on his right hind foot, the relic 
 of a long mountain trip. He wheeled around, using his 
 front feet as a pivot. I had suddenly sensed the mean- 
 ing of my own remark but had no time to correct it. 
 Out of a horrified mental and physical confusion I saved 
 
36 THE CASE OF THE PEOPLE AGAINST 
 
 myself by the primeval instinct to leap from danger. 
 His hind foot shot out like a flash of light and hit the 
 rock wall two inches above where my knee had been. 
 There was a brief smell of hell-fire, and the shape of the 
 shoe was printed on the wall in pulverized rock. I 
 groaned, even at the imaginary pain, and inwardly bade 
 farewell to any further interviews with the Talking 
 Jackass. But he did not even look angry. He only 
 seemed to be overwhelmed with disgust at having missed 
 his mark. After a careful look at the footprint on the 
 rock he went on to answer my last question, as if all 
 scores had been squared. 
 
 "It is one of the common features of human history 
 that systems of thought and practice are elaborated un- 
 til their usefulness is utterly destroyed; their grip on 
 the public mind is very great, but performance becomes 
 stupid and results ridiculous. The public mind sits in 
 one place so long that its legs go to sleep; and then it 
 cannot move at all. But in order that our personal rela- 
 tions with each other may remain pleasant, remember 
 that the qualities of mind pertaining to a desert ass are 
 altogether unsuitable for the making of figures of speech 
 that reflect on the intelligence of your lawyers. 
 
 "The incredibility of what I have said about techni- 
 cality in your courts troubles only those who have not 
 examined the subject. As if a humorous fate could not 
 refrain from making judicial processes utterly farcical, 
 it dealt the final blow in the famous Ruef case. The his- 
 tory of the grafting in city business during the period 
 of his ascendancy and the bitter pursuit and his final 
 downfall, is filled with facts that are astounding, pa- 
 thetic, incredible. He manipulated election after elec- 
 tion, traded the votes of his supervisors as if they were 
 
THE LAWYERS AND THE COURTS 37 
 
 oxen, and did crooked business with the financial and 
 social leaders of the city. During the long and dramatic 
 pursuit there were confessions by the supervisors, and 
 one by Ruef himself. There were many trials and jury 
 disagreements and acquittals. The elite among the 
 crooks escaped. Supervisor Coffey was convicted on a 
 charge of taking a bribe that was given him in Ruef's 
 behalf by Supervisor Gallagher. It was on Gallagher's 
 testimony that Coffey was convicted. In all states the 
 testimony of an accomplice is to be regarded with dis- 
 trust by the jury, but in California the code itself pro- 
 vides that a defendant shall not be convicted on the tes- 
 timony of an accomplice unless it is corroborated by 
 other testimony. Ruef was convicted of giving a bribe 
 to Supervisor Furey. The bribe was given to him by 
 Supervisors Wilson and Gallagher in Ruef's behalf. 
 
 "Now what did the upper courts do with the situa- 
 tion? The Appellate Court upheld the conviction of 
 Coffey on the ground that Gallagher was not his accom- 
 plice in the taking a bribe; Gallagher had committed 
 a different crime — he had given a bribe. Ruef's con- 
 viction was similarly upheld. But when Coffey's case 
 came before the Supreme Court of the state, that court 
 ruled that Gallagher had been an accomplice of Cof- 
 fey, and granted the latter a new trial. All this would 
 have been humorous enough, because there was no ques- 
 tion that the testimony was true and that Coffey was 
 guilty, and in three-fourths of the states of the Union 
 the conviction would have held good in the upper courts. 
 It failed in California merely because California copied 
 the code of New York when it adopted a code. But in 
 the Ruef case the situation became farcical. Under the 
 ruling of the Supreme Court, Ruef would without ques- 
 
38 THE CASE OF THE PEOPLE AGAINST 
 
 tion have been given a new trial. But by the sheerest 
 formaUty which had not the sHghtest bearing on either 
 the evidence or the law, he lost his final opportunity in 
 the upper court. He went to the penitentiary under his 
 fourteen-year sentence; his career of wrong-doing and 
 all his hopes were cut off, not by the stern judgment of 
 a trial court, but by an almost unbelievable freak of tech- 
 nicality. After all the farce and the tragedy, this was 
 a ludicrous anti-climax. A system that can by any pos- 
 sibihty produce such results has lost its grip on the 
 prime object of its existence. It fails in every essential 
 element that goes to make up practical justice." 
 
 We agreed to adjourn and meet next day somewhere 
 in Woodpecker Cafion. 
 
THE LAWYERS AND THE COURTS 39 
 
 V 
 Fair Play, Time and Justice 
 
 IN a general discussion there is always room for ad- 
 verse comment. The trend of thought can be made 
 to ramble and dodge obstructions. But the Donkey's 
 constant appeal to pertinent specific cases left little 
 room for speculative treatment of the subject; and I 
 proposed to encourage a more general discussion of the 
 subject. 
 
 When I had gone up Woodpecker Canon only a short 
 distance the canon suddenly filled with a sound like the 
 shout of a great army. The rocky walls were quarreling 
 with the bray of a donkey, and the noise grew more 
 voluminous until the canon seemed unable to hold it any 
 longer. I wandered on and searched the upper reaches 
 incessantly, screening my eyes against the hot light. At 
 last I saw a gray face move far up on the western side. 
 A cool wind blew down from the Yellow Buttes at the 
 head of the canon, and I climbed up to the seat of ju- 
 dicial philosophy. I sat down on a little shelf and wait- 
 ed, Indian fashion, for the time of speech; but there 
 was not even a sign of an inclination to begin. I went 
 far back for a running start and said, "With all the ed- 
 dies and cross currents and stagnant pools and quick- 
 sands that show themselves in practice, the American 
 conception of justice or fair play is essentially sound. 
 There is prompt and sufficient resentment at every spec- 
 tacle of injustice; the average man's judgment would 
 be a safe conclusion in any given case." 
 
40 THE CASE OF THE PEOPLE AGAINST 
 
 "It seems to be a steady characteristic of our inter- 
 views," said the Donkey, "that you should invariably 
 touch the garment of the matter in issue without grasp- 
 ing the essential fact. It is a pathetic feature of the sit- 
 uation that the American people do have so fine a sense 
 of justice. But justice may be merely the group of ab- 
 stract principles by which actions are measured as right 
 or wrong ; or it may be the personal or community spirit 
 of fair play; but in its governmental relations justice is 
 the giving to every one what he deserves. The first of 
 these is altogether theoretical; the second is the free 
 play of the people's spirit, and while it enforces fair play 
 outside the law, gives tone to conduct and moral satis- 
 faction to those who cherish a sense of justice. But the 
 justice with which we are concerned is the forcible, gov- 
 ernmental giving to each man what he deserves. And 
 here the results are in many ways an almost constant 
 violation of the people's own sense of what is right." 
 
 "If we admit," I said, "that what you say is true is 
 it not another example, on a large scale, of preaching 
 one thing and practicing another? How is it possible 
 that an admittedly right-minded community should bun- 
 gle its most important work so sadly?" 
 
 A strange light came into his eyes ; he looked at me 
 and then at the high mountains as if seeking to draw 
 thence the wisdom to deal adequately with the question. 
 He slowly shifted each leg in turn, swung his tail a lit- 
 tle, and draped his ears at a new angle, as if trying to 
 rid himself of every little physical strain. When he be- 
 gan to speak his speech was even slower than usual, as 
 if he were uttering things that could not be retracted. 
 
 "Time is of the very essence of justice. Abstract prin- 
 ciples by themselves are of no more avail than the day- 
 
THE LAWYERS AND THE COURTS 41 
 
 dreams of a shiftless loafer. Nor is sound moral judg- 
 ment of itself competent to enforce right in the world. 
 In fact, when it is left altogether to its own resources, 
 the correctness of its decisions is usually in inverse ratio 
 to its ability to affect in any way the things it passes up- 
 on. It is a truism that the best moral judgment on past 
 events is not reached until there is a long historical per- 
 spective through which to gaze at them. You pass a 
 sounder judgment on the acts of Nero than his contem- 
 poraries could do; for one reason, because your moral 
 views are less weighted down with social and political 
 institutions founded on force and privilege. But your 
 views of the acts of Nero have no effect on the facts 
 themselves. Time has helped to form a better judgment, 
 but meanwhile the victims perished, not even being 
 aware of your fine moral views. 
 
 "If each man is to get what he deserves he must get 
 it when he deserves it. Time constantly shifts the point 
 of view, corrupts the facts, belittles them. The injured 
 party suffers instead of the one who is in the wrong. In 
 case of crime the community loses its interest with the 
 lapse of time, not because the act becomes less a crime, 
 but because other interests intervene. The most ancient 
 as well as recent practice recognizes the fact that justice 
 turns pale with time. The statutes of limitation, al- 
 though they differ widely in different jurisdictions, all 
 carry the same intent. The actual time limit is not 
 founded on any inherent necessity ; there is nothing sci- 
 entific about it. The sole purpose is to set a 'reasonable' 
 limit to the time within which the matter may be pur- 
 sued. If a man commits a public wrong he must be 
 prosecuted within a given time or the crime is outlawed 
 and it can no longer be punished. This limitation is 
 
42 THE CASE OF THE PEOPLE AGAINST 
 
 fixed because time is an essential element in the forcible 
 application of moral principles. 
 
 "If a carpenter works on a house and the contractor 
 fails to pay him, he can file a lien on the property, and 
 so hold the owner as well as the contractor responsible. 
 But if he does not file the lien within a given time after 
 the work is done he loses the privilege altogether. Why 
 should the privilege be restricted to sixty days ? Merely 
 to give him the opportunity; if he neglects it he loses 
 it. The rights of others begin to intervene with the 
 lapse of time ; and his little right would be constantly in- 
 truding upon new rights and new conditions that time is 
 constantly injecting. 
 
 "In early Rome the legal processes for the transfer 
 of property became in time so excessively ceremonious 
 and cumbersome that there never could be any certainty 
 that mistakes had been avoided. Consequently along- 
 side the ancient elaborate methods of transfer others 
 sprang up out of insignificance into permanent im- 
 portance, and gradually displaced the modes of transfer 
 that had become dangerous and uncertain. One of the 
 devices resorted to was the rule that if a man believed 
 that he was getting property lawfully and it had been ac- 
 tually transferred to him, no matter how defective the 
 title was, merely occupying the property two years made 
 the title perfect. Macaulay sums up the historical rec- 
 ord with the statement that *The laws of all nations 
 have wisely established a time of Hmitation, after which 
 titles, however illegitimate in their origin, cannot be 
 questioned.' In other words, time can heal an imper- 
 fection that it did not cause. This is valid merely be- 
 cause time also removes the possibility of making the 
 correction. There had to be an automatic safeguard to 
 
THE LAWYERS AND THE COURTS 43 
 
 avoid anarchy. No matter from what angle the matter 
 is considered, the law itself provides many proofs that 
 time is an essential element of justice and that the future 
 shall not be permanently saddled with the burden of acts 
 long done. If they are not rectified with reasonable 
 promptness time itself is given the power to draw the 
 sting. There is a practically universal recognition of the 
 fact that time destroys both the right and the value of 
 postponed proceedings." 
 
 I had certainly got what I had asked for, an analysis 
 without concrete examples. I injected a suggestion. 
 "Since the law itself gives full recognition to the doc- 
 trine you have urged, what more can be said or done? 
 Even under ideal conditions accuracy and a high quality 
 of justice seem to require time rather than swiftness of 
 procedure. Perhaps the actual conditions under which 
 governmental justice is administered are as reasonable 
 as should be expected." 
 
 ''The best answer to your suggestion," said the Don- 
 key, "is not further speculative declarations but the judg- 
 ment of your nation. It is one of the recognized and 
 hopeless facts of your civilization that your judicial pro- 
 cesses are cumbersome and ineffective, that the criminal 
 is unduly protected, the community almost hopelessly 
 handicapped in its efforts to punish, and that the innocent 
 party in a civil suit suffers nearly if not fully as much as 
 the one who committed the wrong. Your last two presi- 
 dents damned in almost violent language the farcical 
 complexity and delays of procedure. President Taft 
 came near pronouncing a curse on the criminal processes 
 of the federal courts ; and these are recognized as vastly 
 superior to most of the state courts. 
 
 "In 1905 President Roosevelt said to Congress: *In 
 
44 THE CASE OF THE PEOPLE AGAINST 
 
 my last message I asked the attention of Congress to the 
 urgent need of action to make our criminal laws more 
 effective ; and I most earnestly request that you may pay 
 heed to the report of the Attorney-General on this sub- 
 ject. Centuries ago it was especially needful to throw 
 every safeguard around the accused. The danger then 
 was lest he be wronged by the state. The danger now is 
 
 exactly the reverse The delays of the criminal 
 
 law no less than of the civil, now amount to a very great 
 evil.' In the same message he said, 'The history of the 
 cases litigated under the present commerce act shows 
 that its efficacy has been to a great extent destroyed by 
 the weapon of delay, almost the most formidable weapon 
 in the hands of those whose purpose it is to violate the 
 law.' This is the powerful plea of the man charged with 
 the enforcement of the law. Twenty-one directors of the 
 New York, New Haven and Hartford Railroad, the most 
 powerful financial group in America, were charged with 
 conspiracy to violate the Sherman anti-trust law. They 
 filed a plea in abatement on the ground that the clerk of 
 the court who selected the members of the federal grand 
 jury that brought the indictments had his legal residence 
 outside of the judicial district in which he is a court clerk. 
 When the matter finally came up for argument they 
 asked the court for consent to change their plea. They 
 did not announce what the new plea would be and the 
 court and lawyers solemnly went on with the argument 
 on the old plea ! The time has long passed when it was 
 worth while to spend energy proving the pitiful in- 
 effectiveness of your slow and complicated judicial pro- 
 cesses. Concrete illustration, even, can do no more than 
 merely freshen a national moral conviction that has 
 grown stale. 
 
THE LAWYERS AND THE COURTS 45 
 
 "If that is the state of the federal household, what 
 shall be said of the local courts? In cases where the 
 conditions require prompt judicial action because of some 
 specific time limit, the court processes degenerate into an 
 absolute farce. In the city of San Francisco a man who 
 had not been an elector in the city and county for the re- 
 quired five years, and was therefore not eligible to hold 
 any office, received a majority of the votes for tax-col- 
 lector. The defeated candidate, who happened to be the 
 old tax-collector, refused to surrender the office on the 
 ground that the new man could not legally hold it. The 
 new man and his friends organized a mob, drove out the 
 old collector and took possession. The old collector car- 
 ried the matter into court and it decided that the majority 
 had thrown away their votes on a man who was not eH- 
 gible for the office, and that therefore the old collector, 
 who had the next largest number of votes, was the right- 
 ful claimant. 
 
 "Instead of accepting the decision like a good citizen 
 and surrendering the office, the man who held the office 
 unlawfully appealed to the Supreme Court. There the 
 case hung fire. After the illegal occupant had held the 
 office during the whole term, drawn the salary and done 
 the city's business as de facto tax-collector, the Su- 
 preme Court decided that he had no right to the office. 
 But one great point had been gained. All the pharisaic 
 rules had been obeyed and a decision had been given 'in 
 accordance with the law.' Its effect was the same as if 
 the court, sitting on the case of a man who had already 
 been drowned, should hand down a decision to the effect 
 that water has a tendency to stop the breath." 
 
 "But where is the fault?" said I. "The people make 
 the laws. The constitution and the laws lay down a 
 
46 THE CASE OF THE PEOPLE AGAINST 
 
 great variety of rules and provide for the appeals, plead- 
 ings, demurrers, continuances, and the rest of the endless 
 list of processes, and even specify how much time is to 
 be allowed for each. It therefore becomes almost a 
 simple arithmetical calculation to determine how long it 
 will take to get a case through the courts. Of course 
 there would be a wide variation in time between the 
 shortest and the longest possible delay. It is only this 
 intervening stretch of time that can be fairly charged 
 against the habits of the courts and lawyers. And even 
 this is largely accounted for by the relative stubbornness 
 and pugnacity of the litigants. We may admit that the 
 judicial system is as bad as you say it is ; but let us put 
 the blame where it belongs. Can not the people have 
 any kind of a judicial system that they want?" 
 
 "Ah," replied the Donkey, twitching a fly off his ear, 
 "'you could have made several large kettles full of intel- 
 lectual soup out of the meat in that paragraph. You 
 have a genius for brevity. But it is even more true in 
 the desert than it is in North and South Carolina that 
 it is a long time between drinks. It is time to go after 
 one. I will meet you tomorrow at the graves in Sour 
 Dough Canon." It was evident when he said that he 
 would meet me in Sour Dough he meant that I would 
 find him there ; that the effort would be all on my part. 
 For with the first move he made I was sure that he was 
 already headed for the place he had named. He merely 
 allowed me to know how far he would have gone by the 
 next day. 
 
THE LAWYERS AND THE COURTS 47 
 
 VI 
 
 Constitutional Intentions 
 
 WHEN I found my friend the Ass next day he 
 was scratching his chin on one of the weather- 
 worn pickets of the fence around a grave. 
 There were only two graves, one on each side of the 
 wash. But there had been a cloud-burst since the min- 
 ing camp of Panamint had exploded by the bursting of 
 its dreams of wealth ; and maybe the rush of water had 
 taken other dead men down the cafion into the little salt 
 lake in Panamint Valley. He turned on me promptly. 
 
 "Taking up your condensed wisdom in detail, why 
 should the stubbornness or pugnacity of a litigant play 
 any considerable part at all in determining the length 
 of time it should take for a case to go through the mill 
 of justice? The definition of justice itself implies that 
 this shall not be allowed to play a part. It may be dif- 
 ficult to assign to each factor its share of the respon- 
 sibility; the builders of your judicial system and the vol- 
 untary habits of your judges and lawyers in court prac- 
 tice are the two great responsible parties. That a large 
 part of the imperfections are easily curable is not diffi- 
 cult to prove. The contrast between your system and 
 that of Great Britain has been so often emphasized that 
 it has begun to irritate. From ex-President Taft down, 
 the best thinkers deprecate the uncomfortable difference 
 between the two methods of dealing out justice. 
 
 'Terhaps, however, no more stinging comparison has 
 been made than between the practice and results on the 
 two sides of the imaginary line between the United 
 
48 THE CASE OF THE PEOPLE AGAINST 
 
 States and Canada. Justice Middleton of Toronto said, 
 'We try our cases here before you people in the States 
 get your juries.' Justice Riddle of the High Court of 
 Justice tried four criminal and seven civil cases and was 
 home again in Toronto before an American judge across 
 the line had half of his jury in a murder case. Riddle 
 said, Tn my thirty years' experience I never saw it take 
 more than half an hour to get a jury. I have never 
 known even a murder case — except one — to take more 
 than four days.' There is no difference in moral 
 standards or intellectual capacity or points of view or in 
 the nature of their legal business between the province 
 of Toronto and the states adjoining it — nothing but the 
 fact that the American people have become tangled in a 
 system which, if they were once rid of it, they would 
 never dream of tolerating. 
 
 "The makers of constitutions and laws have in mind 
 perfectly definite results which those constitutions and 
 laws are expected to work out. But very often the col- 
 lateral, unexpected results are more important — some- 
 times even disastrously important — than the direct in- 
 tentional results. Some of the most far-reaching effects 
 of your federal system of government were not even 
 dreamed of at the time the constitution was adopted. 
 The system has been and probably always will be a good 
 system for the United States. In a great country Hke 
 this, internal disturbances are bound to be local in their 
 origin, and the federal system tends to keep them local. 
 It is like an insurance company; it distributes the dan- 
 ger and quarantines it, too. 
 
 "But that same federal type of government is the 
 foundation of your elaborate system of judicial appeal; 
 and the spirit of the federal system has not only nursed 
 to gigantic proportions your faith and belief in such a 
 
THE LAWYERS AND THE COURTS 49 
 
 judicial system but has been the cause of endless confu- 
 sion. Each state is itself a federal system, so that all 
 your political and governmental thought has twined it- 
 self on that trellis work. That many tremendous diffi- 
 culties have owed their existence to the nature of the 
 system is plain enough when they are considered. While 
 the separate states controlled bankruptcy matters within 
 their own jurisdictions there were endless chicanery, 
 confusion, complexity and delay, often amounting to 
 downright cruelty and all but absolute denial of justice. 
 The situation became finally so unbearable that bank- 
 ruptcy was taken from the control of the states and 
 placed under the jurisdiction of the federal courts." 
 
 "I never had much sympathy for bankrupts any- 
 how," said I, "and can see no reason why his troubles 
 should be reduced." 
 
 With a villainous irrelevance, which he emphasized 
 by turning his head toward another part of the land- 
 scape, the Burro said, *'I have often wondered why it 
 would not be appropriate to apply the expression 'half- 
 witted' to people who always insist on considering only 
 half of the facts relating to an issue. You are ready to 
 dismiss the whole matter because you take no interest in 
 the bankrupt. But it happens that under the old system 
 practically all the wrong was suffered not by the bank- 
 rupt but by his creditors. As usual, it was those who 
 had rights to enforce that were severely punished by the 
 failure of the system to do its proper work. 
 
 ''During the past generation the increasing evils of 
 divorce have worried the whole nation. Part of the 
 trouble is due to the changing character of the people, 
 but the nature of the political system has greatly encour- 
 aged it. There has for many years been a strong de- 
 mand that divorce like bankruptcy be made uniform by 
 
50 THE CASE OF THE PEOPLE AGAINST 
 
 taking it from the jurisdiction of the states and placing 
 it under control of a federal law. 
 
 "And so the fundamental political doctrines, even 
 that of state rights itself, are perpetually in the caldron. 
 The moral efforts of the nation in connection with bank- 
 ruptcy and divorce show how your people seek to escape 
 the legal and moral confusion inherent in the federal 
 system by removing their most serious problems to na- 
 tional control, centralizing them, and to that extent 
 overthrowing the federal theory. An interesting evi- 
 dence of the gravity of the problems is the interstate 
 conferences of governors and other officials held in re- 
 cent years, the chief purpose of which has been to se- 
 cure more uniform laws and methods." 
 
 "Even if all you have said is admitted," said I, "in 
 the course of time the difficulties that were not foreseen 
 by the founders of the federal system will be adjusted 
 and then the governmental flexibility of that system will 
 appear greater even than now. And anyhow, the ques- 
 tions you are discussing are legal rather than judicial. 
 The courts will follow the progress made by the law." 
 
 "It is not only the difficulties inherent in the nature 
 of the federal system that have caused trouble," said 
 the Burro. "The country is now not only far greater 
 than the founders ever dreamed it could be, but it is now 
 a different kind of nation from what it was at the start. 
 The system was constructed to suit the needs of govern- 
 mental units largely independent of each other in prac- 
 tical life. When the constitution was adopted the thir- 
 teen states were not nearly so closely associated commer- 
 cially, socially and politically as the forty-eight states of 
 the Union are now. The instruments of communication, 
 of which the founders had no foreknowledge, have given 
 to nearly every phase of Hfe an interstate character. 
 
THE LAWYERS AND THE COURTS 51 
 
 "When every man raised his own strawberries or his 
 children picked wild ones among the pine stumps, and 
 the butcher bought cattle from the farmers of his own 
 county these things were not subjects of interstate dis- 
 cussion. But now that the whole nation eats strawber- 
 ries from the south, beef from the corn and grazing 
 states and melons and cantaloupes from Imperial Val- 
 ley, the railroads, the beef trust and the refrigerator car 
 lines have become national problems with all sorts of 
 local implications. If a state seeks to control the rail- 
 roads or the liquor business or epidemic disease or the 
 sale of cigarettes to the children within its borders those 
 who disHke such control take advantage of the federal 
 system to hamstring the law, and often laugh the law of 
 their own state to scorn. The process is double-acting; 
 when a state seeks to deal with a question the interested 
 parties drag it into the national arena, and when it is 
 dealt with by the national government they seek cover 
 again under the protective sovereignty of the state. In a 
 thousand ways judicial process has been made complex 
 and slow by a written constitution that was imposed up- 
 on the nation a hundred and twenty-five years ago by a 
 vote of perhaps 250,000 men — about half as many as 
 Roosevelt's Republican majority in Pennsylvania in 1904. 
 
 "The system has lent itself too readily to the corrupt 
 law-breaker. It is in its nature an obstacle to cheap and 
 efficient justice. It has been the artful dodger's para- 
 dise, the fruitful cause of the triumph of technicality 
 and evasion." 
 
 He reached a pause in the flow of his political phil- 
 osophy and I broke in. "Speculative wisdom is one thing 
 and practical conduct another. Would you have the 
 American people overthrow their system of government 
 in the interest of cheaper and more efficient justice?" 
 
f 
 
 52 THE CASE OF THE PEOPLE AGAINST 
 
 He answered, "I and my whole race have always re- 
 fused to take advice from anyone ; witness the refusal 
 of my great ancestress to do as she was told, even un- 
 der physical compulsion; and we never give advice to 
 others. But your people might, by searching, find some 
 very simple remedies for the worst of their troubles. 
 The question is not whether the system shall be over- 
 thrown, but whether because of its great worth in other 
 ways it shall be retained and the difficulties overcome by 
 some simple changes. 
 
 "If the people's modes of thought have changed 
 enormously in a hundred years shall the judges restrain 
 the people's purpose by saying that the old constitution 
 forbids it? A very sharp attack might be made against 
 the sacred doctrine that an old constitution can override 
 the new wants of a nation. But that is not necessary. 
 In all ages constitutions and laws have been made to say, 
 not what dead men thought they said, but what living 
 men wanted them to say. Even great moral laws have 
 been bent to suit the present purposes of men. The 
 meaning of a general legal principle is at any given time 
 a matter of interpretation in connection with a given set 
 of facts. Interpretation of laws is the great field in 
 which the moral desires and psychological processes of 
 large groups of men are worked out. It varies all the 
 way from a strict and literal adherence to the letter of 
 the law without any regard to its general purpose, 
 through conservative confidence that the law is all-wise, 
 to liberal stretching of its meaning to cover new things 
 that were not dreamed of when it was made, and even 
 to the most consummate casuistry that by intellectual 
 gymnastics turns truth into falsehood and then makes 
 the falsehood pander to low moral desires." 
 
THE LAWYERS AND THE COURTS S3 
 
 VII 
 Progress by Evasion 
 
 AFTER A long pause, during which he seemed to be 
 /\ gathering himself up for a still greater effort, my 
 1 V friend, the Talking Jackass, went on: 
 
 'Tn all those human societies which have helped to 
 make modern civilization — Hebrew, Greek, Roman, Teu- 
 tonic — there have been long and slow but sure and fate- 
 ful changes, like the invisible drift of the solar system; 
 and the changes were usually made only by the utmost 
 ingenuity and often at the price of great suffering. A 
 growing crab has to molt its hard old shell at the cost of 
 both fear and pain. The shell that hardened to protect 
 its owner becomes by that very hardening a clamp on 
 its owner's Ufe. The shell must be cast or the crab will 
 sicken and die. So a rule of action that had once been 
 the guide and safety of a people's Ufe sometimes became 
 an iron girdle that threatened to clamp the nation's 
 higher development. But to cast off the girdles of 
 ancient practice took time and ingenuity and pain. 
 
 "One of the most interesting features in the history 
 of progressive peoples is the constant effort to overcome 
 the old, once useful but outworn views and methods in 
 public affairs without formally doing away with them. 
 The old things are retained as if they seemed to be ne- 
 cessities, but are set at nought by legal fiction, techni- 
 cality and evasion. When the struggle is between two 
 sections of the community there is a tug of war; but 
 when a whole community has changed its mind, the old 
 view has to be jockeyed into harmlessness. 
 
54 THE CASE OF THE PEOPLE AGAINST 
 
 'The conflict between what is and has been and 
 what ought to be — ^the growing pains of nations — is no- 
 where in the history of the world better illustrated than 
 in the records of ancient Rome. The city grew from a 
 village to be mistress of the world. Her laws and cus- 
 toms, fitted for the life of a few people of simple habits 
 and uniform wants, had to be stretched to reach across 
 centuries of struggle, and to suit the wants of a great 
 variety of racial characters. Roman jurisprudence 
 sought to perform the task, and its weapons were often 
 evasion of the ancient purpose of the law, legal fiction 
 and the laying of stress on technicalities until the tech- 
 nicalities became the foundation of new and powerful 
 legal processes. Repeated eiTorts were made to adapt 
 the ancient systems of law to the new, undreamed of, 
 large concerns of the growing empire ; but its rapid de- 
 velopment always left the formal legal system lagging 
 behind the wants of the nation, and there constantly 
 sprang up these supplementary devices. 
 
 "When once a way of doing a thing has been adopt- 
 ed it tends to become more and more complex. The jury, 
 which has been regarded as the bulwark of Anglo-Saxon 
 liberty, has by its own development become in some re- 
 spects a serious nuisance and a cumbersome instrument 
 of justice. The system of appeals has grown so elab- 
 orate that justice is nearly out of reach of all but the 
 rich because no case can be brought to an end. The 
 growing complexity of such institutions is always per- 
 fectly normal and logical, but there are always two 
 grave results. Trying to make justice perfectly exact 
 ends in making it impossible. In the field of law the 
 growth of such conditions makes technicality almost a 
 science by itself; and casuistry in its worst sense be- 
 
THE LAWYERS AND THE COURTS 55 
 
 comes a part of the necessary equipment of the modem 
 lawyer. In the end there always arises a struggle be- 
 tween logic, which seeks to develop every institution in 
 its own peculiar direction, and common sense, which 
 seeks to give the people what they need in the most di- 
 rect way. So that while logic has gone on consistently 
 with its task, common sense has had to take refuge in 
 evasion and other devices to overcome the elaborate bur- 
 den of logic." 
 
 Here I broke into the stream of his thought. **You 
 have devoted several days to convince me that evasion, 
 technicality and so on, are the roots of all the evil in our 
 judicial system. And now you draw from history elab- 
 orate proof that these devices are necessary to rescue 
 common sense from the snares of logic. It seems to me 
 you have boxed the compass." 
 
 He seemed prepared for this attack, for he turned 
 on me promptly. "Who shall be the judge of what is 
 good and what is bad in these matters of technicality 
 and evasion? When Athens recalled Demosthenes from 
 exile the fine against him was still due. But Plutarch 
 explains that 'they found a method to evade the law 
 while seeming to comply with it. It was the custom, in 
 the sacrifices to Jupiter the Preserver, to pay the persons 
 who prepared and adorned the altars. They therefore 
 appointed Demosthenes to this charge; and ordered 
 that he should have fifty talents for his trouble, which 
 was the sum his fine amounted to.' The Spartans had 
 no naval commander like Lysander; but he had been 
 admiral once and the law forbade that the same man 
 should hold the position twice. A national necessity 
 arose and the nation evaded its own law by making Ara- 
 cus the figurehead admiral and choosing Lysander vice- 
 
56 THE CASE OF THE PEOPLE AGAINST 
 
 admiral with all the real power of command. Thus did 
 Sparta gently bleed the ancient law instead of crushing 
 in its skull for the safety of the nation. 
 
 "In the course of events the United States decided 
 to build the Panama canal. Congress passed the neces- 
 sary law and created a commission of seven men to be 
 appointed by the President. After a year or more of 
 investigation and preparation the commission proved to 
 be a seven-headed institution. There was too much red 
 tape, consultation and delay. The President asked Con- 
 gress to reduce the commission to three. Congress con- 
 sidered the suggestion, but for reasons of its own failed 
 to carry it out. The President got by indirection what 
 Congress had unwisely neglected to give him. By twist- 
 ing the law he made over the commission into a tool 
 competent to carry out the intent- of the law itself. He 
 did by executive order what Congress refused to do by 
 legislative process, and when he got through a good 
 many Congressmen were astonished at what had been 
 accomplished. Roosevelt lived up to the letter of the 
 law, but gave it such a powerful wrench by interpreta- 
 tion as to make practically a new law out of it. He did 
 even more technical things than this in the course of his 
 career as President. Such acts always raised public dis- 
 cussion but in the end the judgment of the people went 
 with him, because the use of technicality accomplished 
 what needed to be done for the pubUc good. 
 
 "But when the House of Representatives tried to use 
 technicality for the private benefit of its members the 
 people took an entirely different view. In the fall of 
 1904 the House adjourned its special session and met in 
 regular session on the same day. In the important mat- 
 ter of the appointment of officers Roosevelt made the 
 
THE LAWYERS AND THE COURTS 57 
 
 assumption that the few minutes between the special 
 and the regular session was a recess. The people ap- 
 proved Roosevelt's act. But when the House did the 
 same thing in order to act on the theory that its mem- 
 bers were entitled to the mileage from their homes to 
 the seat of government for the new session there was a 
 storm. The House, in one of its bills, included an appro- 
 priation of $i90,cxx) to pay the members of Congress 
 the mileage for an imaginary recess. But the attempt 
 to get public money on a technicality raised such a storm 
 of criticism that the Senate promptly struck the item 
 out of the bill. Some of the newspapers were even frank 
 enough to call the Representatives pickpockets. 
 
 "There is a radical difference between a nation's use 
 of technicality to get results by the shortest and surest 
 way and an individual's tricky use of technicality and 
 evasion to gain some private end. Analysis shows that 
 the use of technicality, legal fiction and evasion for gen- 
 eral public purposes is in its nature an effort to give ex- 
 pression to the will of the people, and therefore to all 
 moral intents is the most recent expression of that will. 
 However informal and indirect the process may be such 
 acts have morally the effect of sound law. The use of 
 the same methods by an individual for his own purposes 
 is regarded as an attempt to escape the consequences of 
 the law, the sign of a dishonest purpose. Inflexibility 
 of the fundamental law leads naturally to devices for 
 escaping its injurious consequences, and many times in 
 history the necessary flexibility has been secured in this 
 way. But it has to be admitted that there are always 
 grave dangers involved in the business of making na- 
 tional progress by indirection ; and for this reason there 
 is real danger in inflexible governmental methods." 
 
58 THE CASE OF THE PEOPLE AGAINST 
 
 "It seems to me," said I, ''that you are running very 
 far afield. You have drifted away from the processes 
 of the American courts and even from the laws which 
 underlie them, and are now dealing with questions 
 about the moral views of the people. Although that is 
 a fascinating subject a too informal consideration of it 
 is likely to become confusing." 
 
 For a moment the Burro paid no attention to me. 
 He was intensely absorbed in the doings of a wasp. But 
 he apparently subdued his real feelings and went on: 
 ''You are quite right," he said, stealing my thunder 
 again, "and the more deeply the matter is studied the 
 more clearly it will appear that judicial systems and rules 
 of procedure are not an end in themselves but are in- 
 tended to give safe and steady expression to the moral 
 views of the people, the consideration of which you 
 seem to be afraid of. The worst charge that can be 
 brought against the courts is that they are not readily 
 amenable to the needs and wishes of the community. 
 
 "There are several ways in which maladjustment 
 arises between a system of procedure and the purposes 
 of the people whom the system is intended to serve. The 
 system itself, after it is established, may develop by its 
 own logical momentum and the impelling power of 
 those who feed upon it, in a direction opposed to the in- 
 terest of the people. Or there may be a secular change 
 in the conditions of life, making the system out of date ; 
 or a secular change in the ideals of the people, so that 
 things that once seemed worthy become objects of 
 amusement or contempt. When Fabricius refused the 
 Pyrrhic bribes, and it could be said of many Romans as 
 it was said of him. 
 
THE LAWYERS AND THE COURTS 59 
 
 *thou didst virtue choose 
 
 with poverty, before great wealth with vice/ 
 
 when 'hunger made acorns tasteful,' and when 'the 
 women of old Rome were satisfied with water for their 
 beverage,' conduct was underlaid with moral purpose 
 and power. In later Roman days those old ways were 
 subjects for private laughter and contempt. The rela- 
 tion of conduct to public interest had undergone a com- 
 plete change; appeals could no longer be made to per- 
 sonal character to secure pubUc ends. Such secular 
 changes of moral mood are more easily recognized long 
 afterwards than at the time they are taking place. With- 
 in your own generation, within a period of ten years in 
 your own country, there has been a recognizable swing 
 of the moral pendulum away from cynicism toward a 
 more powerful pubHc moral purpose." 
 
 ''What," said I, "has all this to do with the main 
 point at issue?" 
 
 "The judges of your higher courts," said the Burro, 
 "have for their main task the interpretation of the con- 
 stitution and the laws in their bearing on current events. 
 And the vital question concerning them is whether they 
 will keep abreast of pubHc sentiment and interpret the 
 laws in harmony with that sentiment or stickle to enforce 
 the naked letter of the law upon the people's thought. 
 Vast consequences depend on what the judges happen 
 to be thinking about when they are making their deci- 
 sions. It is as true now as it was two thousand years 
 ago that 'the letter killeth, but the spirit giveth life.' 
 
 "Right now the air is full of the feeling that the 
 chief business of the upper courts is to keep the meaning 
 of the laws within speaking distance of the new needs 
 
60 THE CASE OF THE PEOPLE AGAINST 
 
 of the people. United States Attorney-General McRey- 
 nolds had vigorously prosecuted some of the big trusts, 
 and there was some question whether his spirit was suf- 
 ficiently judicial to harmonize with the standards of the 
 United States Supreme Court. After President Wilson 
 had appointed him as a member of the court one of the 
 great weeklies of this country touched upon the change 
 that had in recent years come over the decisions of the. 
 Supreme Court. It said, 'The Supreme Court has re- 
 cently shown itself so fully abreast of modern sentiment 
 that the appointment of Attorney-General McReynolds 
 will be welcomed by the court itself.' 
 
 "In the fall of 1914 when there was a prospect of the 
 election of Justice Seabury to the New York Court of 
 Appeals the same great weekly was pleased at the pros- 
 pect of having this judge of progressive proclivities 
 placed on the highest bench in the state. Why? Be- 
 cause 'for fifty years the court has been obsessed by the 
 most rigid convictions upon constitutional questions.' 
 One of the most notorious examples of that court's in- 
 difference to modern sentiment was the Ives decision, 
 in which it declared the state Workmen's Compensation 
 Law unconstitutional on the ground that it took prop- 
 erty without due process of law. It was the old cry that 
 had served the cause of so many appeals ; and after all, 
 in the case of the Compensation Act it was only a mat- 
 ter of interpretation. It depended entirely on the social 
 point of view. Nearly every civiUzed country had al- 
 ready adopted such a law, and some of the other states 
 already had very complete and effective compensation 
 laws. These latter had no trouble in flourishing under 
 the old bugaboo clause about taking property without 
 due process of law. 
 
THE LAWYERS AND THE COURTS 61 
 
 "There is a very broad twilight land in which court 
 decisions hang entirely on the point of view of the 
 judges. About twelve years ago a child was killed in a 
 street railway accident. In a suit for the recovery of 
 damages for the child's death the New Jersey judge held 
 that a baby was a liability and not an asset, and there- 
 fore awarded damages of only $i. And now, after 
 twelve years, in 191 4, the same judge, in a similar case, 
 held that $1500 was a reasonable award. We need not 
 assume that the value of babies had increased; the New 
 Jersey judge was merely thinking different thoughts. 
 When men cease to be interested in old views the new 
 ones can easily find a nest in the old constitution. Court 
 opinions, like public opinion in general, change, not 
 merely by argument, but largely by the death of the 
 elders. Old opinions merely lose force in the general 
 shifting of human interest." 
 
 "If what you have said is true," I remarked, "why 
 have a permanent system like ours at all? Why not let 
 judicial procedure and sentiment take their form and 
 color at any time altogether from the passing interests 
 of the hour?" 
 
 "Because," said he, "there will always be a sharp dif- 
 ference between the permanent principles of justice and 
 the momentary interests of any given time." Nothing 
 was said for a while ; and then he moved away as if his 
 going had been decreed when the world was made. 
 There was no explanation or excuse, no hurry; only an 
 atmosphere of the inevitable. And he was going up hill. 
 That meant that if I wanted to see him again soon I 
 would have to climb, too. 
 
62 THE CASE OF THE PEOPLE AGAINST 
 
 VIII 
 Priestcraft and Progress 
 
 THE Talking Jackass had after his fashion backed 
 me away from every position I had taken. But I 
 was still unsatisfied and hoped to make him ex- 
 plain how a great system of judicial principles and pro- 
 cedure could develop logically and finally grow out of 
 harmony with the requirements of justice as they are 
 embodied in the moral needs and desires of a great, pro- 
 gressive nation. 
 
 Early the next morning I sought him in the higher 
 reaches of the North Fork. After two hours of strenu- 
 ous climbing and eye-strain I heard the growl of a piece 
 of rock working its way down the side of the mountain 
 in the distance above me. Then all was as still again 
 as if nature were slowly getting ready for another hot 
 and silent day. By great effort I was able to separate 
 the form of the Burro from the high shelf on which he 
 stood and from the rocks and little trees around him. 
 He had evidently seen me for a long time. When I had 
 seated myself in front of him, wiped the sweat from my 
 forehead, and composed my heaving breath, I said, 
 "Will you indicate how our judicial system has devel- 
 oped logically until it is so largely out of harmony with 
 the moral purpose of the people ?" 
 
 For a while he held the steady, far-away look that I 
 had come to accept as a sign that some great thought 
 was unwinding itself in his mind. So I waited with 
 great patience for something important; and it came 
 abruptly. His first remark seemed altogether irrelevant, 
 
THE LAWYERS AND THE COURTS 63 
 
 but before he had time to develop its meaning my own 
 mind began to trot ahead of his unfolding thought Uke 
 a Uttle dog ahead of a horse. 
 
 "Even as late as 19 14, when there were in all ninety- 
 six members of the United States Senate, sixty-nine of 
 them were lawyers, and some of the others had at some 
 time or other either practiced or at least studied law. 
 Does that have any significance for you? It would not 
 be hard to make an actual count of the lawyers who 
 have acted as federal and state legislators and get their 
 relative numerical strength in legislative halls. But 
 their influence on legislation bearing on the judicial sys- 
 tem has been one of those boundless, insinuating, inde- 
 finable elements which can be measured only by an inti- 
 mate study of the institutions they have helped to shape. 
 
 "Whenever in the history of a nation the legislation 
 has been controlled in a large measure by one class of 
 the population, whose influence, superiority or power 
 rested on that legislation, the secular drift of the laws 
 has always been one-sided. While the patricians main- 
 tained themselves as masters of the Roman law, what 
 did the law do for the plebeians? The plebeians got 
 their rights by pouting, seceding and fighting. The pa- 
 tricians yielded to fear at last ; but as long as they were 
 able to do it they hedged themselves within a mountain- 
 ous wall of special legal, judicial and military privileges. 
 It was a self-sustaining, self-dependent organization. 
 
 "The constitution of the United States prescribed the 
 mode of electing the federal senators. The intention 
 was that they should be the elder statesmen. Their 
 election was not to be entrusted to the fickle populace, 
 but to the wisdom of the state legislatures. In practice 
 the system worked all sorts of public wrong. The 
 ground-work of the election of a United States Senator 
 
64 THE CASE OF THE PEOPLE AGAINST 
 
 was often laid in the nominations of candidates for the 
 state legislatures. State welfare was secondary to the 
 political desires of senatorial candidates. In many in- 
 stances there were deadlocks lasting many months in 
 state legislatures over the choice of a United States sen- 
 ator; and the vast legislative interests of the state were 
 sacrificed. The situation often became a stench in the 
 public nostrils. 
 
 "The system of selection at last produced its own 
 type of senator. Except for some able, experienced 
 senators who were repeatedly re-elected by their states, 
 the rest were practically all the kind of men one would 
 expect to succeed under the system — political bosses or 
 creatures of the bosses, representatives of great special 
 interests which for their own advantage could afford to 
 meddle persistently with the selection of legislators. For 
 a long while after the situation had become offensive to 
 the best political sense of the people that type of senator 
 was immune because any change in method of selecting 
 senators would first have to be approved by the Senate 
 itself. There could be no hope of improvement from the 
 beneficiaries of an evil system. The blow came from the 
 outside. 
 
 "Some of the states provided by law for the nomina- 
 tion of senatorial candidates by a popular vote of the 
 electors of the state. The worst that could happen came 
 to pass. In the state of Oregon the people nominated 
 a Democrat as candidate for the United States senator- 
 ship, but elected a Republican legislature. The individ- 
 ual legislators, when running as candidates, had pledged 
 themselves to confirm the choice of the people. Now 
 the Republican legislators had to break their promises 
 or elect a Democrat. There was much condemnation of 
 the scheme and great uncertainty. All the cunning cas- 
 
THE LAWYERS AND THE COURTS 65 
 
 uistry of crooked politics and partisan feeling was ap- 
 plied to prove that Republicans did not have to keep a 
 promise if it meant the election of a Democrat. 
 
 "But the moral power of Oregon, backed by the 
 moral approval of an on-looking nation, forced for once 
 the keeping of political promises. A Democratic United 
 States senator, the choice of his people, was elected by 
 a reluctant Republican legislature. And on that day was 
 tolled the deep-toned knell of the old system and all its 
 undesirable consequences. And thereupon the doom of 
 the system stalked into the senate itself. Suddenly the 
 system crumbled when the individual senators, in a 
 spirit, not of righteousness but of self-preservation so 
 far as that might still be possible, deemed it advisable 
 to let the people rule. In March 191 1 the senate came 
 within four votes of submitting an amendment to have 
 senators elected by popular vote. At the second session 
 of the sixty-second congress the house and senate 
 passed the concurrent resolution relating to the XVIIth 
 amendment concerning the popular election of senators. 
 The fire had been burning very long, and the final crash- 
 ing of the timbers was spectacular. By the fifteenth of 
 April 1 91 3 thirty-six states had adopted the amendment 
 and it became a part of the constitution. 
 
 "This short and simple tale reveals a number of re- 
 markable things. It shows how a senate built up under 
 an undesirable method of selection was itself the great- 
 est obstacle to improvement. Another important consid- 
 eration is the fact that the people used the baldest kind 
 of legislative evasion to accompHsh indirectly what they 
 could not accompHsh directly. As often before in the 
 long course of history, legislative evasion became a mor- 
 al necessity in order to give expression to the wish of 
 
66 THE CASE OF THE PEOPLE AGAINST 
 
 the people. You were somewhat shocked when I en- 
 forced that doctrine with historical examples." 
 
 There was a long silence. I shoved a loose stone off 
 the edge of the rocky shelf with my foot and listened 
 while it worried its way down the mountain. Even the 
 A^s leaned his ears forward to catch the fading sounds. 
 I re-opened the talk with an assertion. *'It is true that 
 when a special class dominates legislation that legisla- 
 tion sometimes tends to run to a peak. But in a great 
 and active nation so many elements of a coercive nature, 
 social, religious, political, economic, enter into the activi- 
 ties of legislators, so many cross purposes play upon the 
 situation, that no one of them can finally and completely 
 dominate." 
 
 He seized upon the concession that I had made, and 
 while seeming to agree with me went on to enforce his 
 doctrine. Then he proceeded: "The germs that smite 
 man with dangerous disease may in the end undo them- 
 selves. By their own activity they develop poisons that 
 resist the further activity of the germs themselves. In 
 the same way the by-products of every intellectual 
 movement accumulate until they poison it. Even scien- 
 tific theories are not immune from this dangerous ten- 
 dency. Von Baer, the father of embryology, remarked 
 impatiently on the fact that every step of real progress 
 in a science results in pushing the new principle to the 
 limit of folly. 
 
 "My race has been the same since man first began 
 to use and abuse it. We have been able to stand by and 
 with a steady mind observe the turmoil of men. We 
 know that each human institution seeks to develop itself 
 logically, without serious reference to the changes that 
 are taking place in other social factors ; and after a 
 while it finds itself out of harmony with the general sit- 
 
THE LAWYERS AND THE COURTS dl 
 
 uation. It is not an uncommon thing in human progress 
 to find an institution that has gone on developing along 
 its own Unes until the great purpose for which it was 
 created has become a secondary consideration. 
 
 "The laws of Moses about personal and religious pu- 
 rity had underlying them the common sense born of ex- 
 perience. But these rules had been elaborated and made 
 more and more the end of religious service until at last, 
 in the hands of the later Pharisees, they had become a 
 stench in the nostrils of pure religion. The system of 
 rules was harmonious and logically they fulfilled the let- 
 ter of the law. But in practice they smothered the spirit 
 of pure religion. The rules themselves made men im- 
 mune against true religion. The Pharisees devoured 
 widows' houses and for a pretence made long prayer. 
 They compassed sea and land to make one proselyte and 
 then made him more than ever a child of hell ; they paid 
 tithe of mint and anise and cummin, and omitted the 
 weightier matters of the law, judgment, mercy and 
 faith; they strained at a gnat and swallowed a camel; 
 they made clean the outside of the cup and of the plat- 
 ter, but within they were full of extortion and excess; 
 they were whited sepulchers, beautiful without but with- 
 in full of dead men's bones and all uncleanness. And 
 yet the historic development of the rules was systematic 
 and logical. 
 
 But I protested, "There were noble Pharisees ; Nico- 
 demus and Simon and Gamaliel were noble men. There 
 are evil men in every system. It is also a great truth 
 that hypocrites swarm around every noble system of 
 thought and seek by false pretense to profit by its pro- 
 tection." 
 
 "Yes," conceded the Ass once more, "The moral 
 splendor of worthy men only makes the contrast great- 
 
68 THE CASE OF THE PEOPLE AGAINST 
 
 er. But no system of thought or action that has run 
 away at a tangent from human need ever seems to work 
 out its own cure and salvation. There is no healthy ele- 
 ment left with vitality enough to work itself to the top 
 and re-create the system. The Pharisaic method per- 
 ished and the most prominent of its historic features are 
 the curses that Jesus pronounced upon it. The Flower 
 of the Spirit, which was to fill the world with fragrance, 
 bloomed in Nazareth, the by-word of culture, whence no 
 man thought any good could come. And out of the his- 
 toric gloom there came to meet it the barbaric hordes 
 whom the Romans looked upon as the destroyers of civ- 
 ilization. There was a new faith, a new Hfe, a new civili- 
 zation. The new life came out of the dark earth. 
 
 ''There are already many signs that the American 
 people will not forever let their pharisaic judicial sys- 
 tem smother its sense of justice. If you would but look 
 with unclouded eyes you would find the unheard-of new 
 things sprouting in unexpected places. No vigorous na- 
 tional life will let itself be choked by ancient girdles. 
 Somewhere a rebellious spirit breaks forth and with 
 smooth or violent temper undermines and wrecks the in- 
 stitution. I have my asinine doubts whether the scribes 
 and Pharisees and lawyers who build up and feed upon 
 your judicial system are fully aware of what is being 
 done to it by indirection." 
 
 The land was growing weary with the heat, and he 
 slowly moved away into the shadow of a great rock. I 
 knew there would be nothing more ; but he had hinted 
 at great things and I resolved to draw him into an ex- 
 planation of the things that were being slyly done to our 
 judicial system by indirection. Later in the day I saw 
 him thoughtfully zigzagging his way down over the 
 shale toward running water. 
 
THE LAWYERS AND THE COURTS 69 
 
 IX 
 
 Truth Forever on the Scaffold 
 
 JUST before night I sought my friend again. The 
 level sunbeams barely grazed the slope. The yel- 
 low of the high peak was a richer yellow ; the hard 
 porphyry wall in the east glowed pink and looked as soft 
 as lamb's wool. The Ass stood gazing westward as if he 
 expected the coming sunset to be beautiful. He fore- 
 stalled me by commenting briefly on the historical posi- 
 tion of lawyers, their reputations, their standing in their 
 communities. The sunset must have stirred his poetic 
 impulses, for he went back to the Bible and Shakespeare 
 and the quaint old More of Utopian fame; and seemed 
 more interested in them personally than in the views he 
 was quoting from them. He was very personal toward 
 the lawyers; not patient enough with them to admit 
 that they were the victims of a system, the dupes of the 
 work they have to do. 
 
 "Do you realize the extent to which the lawyer in 
 your own day is regarded as a pubUc enemy, a stickler 
 for rules, a spoiler of good sense, an expert at making 
 the truth look like falsehood and falsehood like the 
 truth? In Utopia 'they utterlie exclude and banishe all 
 attorneis, proctours, and sergeantes of the law; whiche 
 craftelye handell matters and subtelly dispute of the 
 lawes.' If you should modernize the spelling you would 
 think old Thomas More was speaking the mind of the 
 common man today. It is not necessary to consider the 
 lawyer a special form of humanity. His opportunities 
 
70 THE CASE OF THE PEOPLE AGAINST 
 
 for mischief are unlimited ; and opportunity is the gate of 
 guilt. It is an undeniable fact that in practice the law- 
 yer is a laborious casuist. He habitually twists facts out 
 of their proper relations to gain an advantage; and de- 
 liberately cultivates the art of lying. 
 
 **Take the trouble to examine the complaint and the 
 answer in an average civil suit. I have in mind a case 
 in which a Christian lawyer filed an answer for his 
 Christian client. The latter swore to its truthfulness; 
 and both of them knew that the assertions and denials 
 of the answer were unqualified falsehoods. The defen- 
 dant had performed repeated business acts and outlined 
 certain plans in careful correspondence. In the affidavit 
 this was all deliberately denied under oath. If this were 
 an unusual case it would lose its significance ; but to such 
 an extent has the legal mind come to consider every- 
 thing from a technical point of view that truth itself and 
 falsehood are coolly treated as technicalities ; so that a 
 Christian lawyer with a Christian client can file an affi- 
 davit swarming with deliberate falsehoods, merely to se- 
 cure an advantage of technical position in a fight based 
 on technicality. 
 
 "If a man has committed a crime and lies to shield 
 himself, his act is humanly comprehensible; even if a 
 man lies in a civil case to get something that does not 
 belong to him, that also is morally comprehensible on 
 the theory that he is crooked. But when the system of 
 procedure tolerates as an habitual practice cool, deliber- 
 ate falsehoods in official documents, which everybody 
 concerned knows will be exposed when the case comes 
 to trial, the moral boundaries are removed. Practices 
 are tolerated which, among honorable men in the ordi- 
 nary walks of life, would be hooted for their indecency. 
 
THE LAWYERS AND THE COURTS 71 
 
 "When the charges are made in this way they seem 
 bald, crude, exaggerated. But the moral degeneration 
 exhibited in many parts of court practice is a legitimate 
 product of the system. If the trial court were the seat 
 of the people's power, to which both parties were re- 
 quired to bring without excuse or delay all the facts for 
 a real decision, trickery, delay, falsehood, all the bad ele- 
 ments based on technicality, would be eliminated or re- 
 duced to a minimum. They would become dangerous to 
 the party using them. They are always characteristic 
 of a system steeped in a spirit of hypocrisy, of mock 
 morality. 
 
 ''Hundreds of the ablest judges have complained of 
 the situation and have indicated in various ways what 
 is the matter and how it might be cured. Judge Frank 
 Dunne, a bright, able, experienced superior judge, who 
 distinguishes sharply between habitual criminals and de- 
 cent fellows gone wrong, said, in a careful public ad- 
 dress, 'The administration of justice in this country has 
 degenerated into a game. The attorney for the defence 
 is one player, the district attorney is the other; the de- 
 fendant is the pawn and the judge is the umpire. An 
 appeal is decided not on the guilt or innocence of the 
 prisoner, but upon whether or not one of the rules of 
 the game has been violated. Justice has become ob- 
 scured in a cloud of technicality.' There have been 
 numberless declarations, from trial judges to Presidents 
 of the United States, to the effect that so far as the pri- 
 mary purpose of the courts is concerned, your courts are 
 a failure and a disgrace. 
 
 "But the farcical nature of judicial performance is 
 abundantly attested in civil as well as criminal cases; 
 and not only in the state, but in the more important and 
 
72 THE CASE OF THE PEOPLE AGAINST 
 
 dignified federal courts. Judge Maurice T. Dooling of 
 the United States District Court said, in dealing with the 
 involuntary bankruptcy proceedings brought against the 
 Realty Syndicate of Oakland, California, 'It has been 
 my experience since handling bankruptcy matters, that 
 when an enterprise lands on the rocks of bankruptcy 
 marshal's fees, attorney's fees and other expenses eat up 
 the assets and there is nothing left for the creditors.' 
 And again, 'But I feel that it is a big enterprise, and 
 throwing it into bankruptcy should be avoided if pos- 
 sible.' And he refused to let the company be crowded 
 to the wall. 
 
 "Now if a great enterprise involving millions, with 
 a very substantial foundation of high grade property 
 could not be allowed to go through the bankruptcy court 
 without at the same time letting the various processes 
 of the court itself suck the life-blood of the enterprise 
 and beat the owners and creditors out of their natural 
 rights, is it any wonder that the common man has lost 
 faith in and respect for the courts? Is it any wonder 
 that the average litigant realizes that after he has won 
 one law suit he was himself really the loser; that by the 
 time he has won two law suits he is hard up, and when 
 he has won three he is financially broken ? 
 
 "In August 1914 one of the great American weekHes 
 had this heavy but short and pithy editorial: 'Andrew 
 Carnegie, a successful business man of Pittsburgh, re- 
 cently gave out four rather ordinary precepts under the 
 heading: "My rules for manufacturers." The final 
 clause of the second rule deserves attention : "Avoid re- 
 sort to law ; compromise." Remember that this comes 
 from the long experience of a man of wealth and power 
 who was able to enlist for himself litigation's every pos- 
 
THE LAWYERS AND THE COURTS 73 
 
 sible advantage. There is nothing in it. As applied to 
 business the whole apparatus of law, lawyers and courts 
 is slow, expensive, inefficient. We would like to hear 
 some lawyers explain Mr. Carnegie's precept in terms 
 reflecting credit on the dignity and social service of the 
 legal profession. Can it be done?' In the face of such 
 testimony and criticism it is almost unseemly for a des- 
 ert Ass to comment at length on a situation that is prac- 
 tically undenied and undeniable. 
 
 "The difficulty about the judicial system is that its 
 victims have no means of bringing about a change. The 
 dominating power in law making has been the lawyers 
 themselves. The rules of procedure are their handi- 
 work ; the commentaries on court practice and decisions 
 are written by them; litigants, the moment they place 
 their cases in the hands of the lawyers, have practically 
 nothing more to say about the conduct of the cases. 
 And all the time the lawyers feed upon the system they 
 themselves have built up. 
 
 "The outcome is quite sure to be akin to the results 
 worked out by a strongly intrenched priestcraft of any 
 sort. When a priesthood has made the laws and the 
 rules and enforced them, and fed upon their success, 
 what can be the outcome? In ancient Egypt the ripe 
 fruit of the process was a heavy burden of practice and 
 belief loaded upon the people by a priesthood that knew 
 the falsity of the system and for themselves secretly held 
 entirely different conceptions." 
 
 I asked him this question: "If the judicial system is 
 so heavily burdened with frivolous subtleties is there no 
 part of the system for which some one can be held re- 
 sponsible ?" 
 
 "The power," he said, "lies with the appellate judges. 
 
74 THE CASE OF THE PEOPLE AGAINST 
 
 The twining dodder of technicality has smothered the 
 tips and sucked the sap out of the stem of the judicial 
 system. The trial judge is bound up in a snarl of leaf- 
 less yellow threads. What greater absurdity could there 
 be than this? The trial judge cannot help select the 
 jury. In practice he has to bend largely to the wishes 
 of the struggling parties. And yet, after he has been 
 compelled to sit helpless in the choice of the jury, after 
 all the cost of time and money wasted in a trial, he may 
 set aside a verdict if it does not suit him. In practice a 
 suit at law is like the trouble between two tom-cats who 
 fill half the night with inharmonious noise; but the fight 
 itself as a rule lasts less than five seconds. 
 
 **But there are apparent contradictions of what I 
 have said. Judge R. M. Wanamaker of the Ohio Su- 
 preme Court holds the trial judge primarily responsible, 
 instead of the lawyers, for the judicial delays. He goes 
 so far as to urge that the judge shall select the jury, and 
 says in support of this suggestion, that in most states 
 there are no statutes to prevent it. But this only empha- 
 sizes the extent to which in practice the powers of the 
 trial judge have become latent. This has been brought 
 about almost entirely through fear of the higher courts. 
 It is necessary for him to exercise particular care to ob- 
 serve all the formaUties lest some higher court might 
 hold that he had prejudiced the rights of one of the par- 
 ties. Hence also the far-spreading convenience of the 
 lawyer. Under the ridiculous assumption that he is 
 looking after his client's interest continuance after con- 
 tinuance is granted merely because the lawyer is not 
 ready. If the trial judge showed signs of becoming 
 peremptory and an appeal were taken there would be a 
 ready affidavit, likely false in substance, to prove that 
 
THE LAWYERS AND THE COURTS 75 
 
 somebody's interests had been sacrificed. The key to 
 the whole situation is the trial judge's lack of control at 
 any point in the game. If the judge should suddenly be- 
 come a real power in his own court and be bent on ex- 
 pediting the people's business, compelling lawyers to be 
 ready, what a rattling of dry bones there would be." 
 
 Night was falling. The cold gray walls of the oppo- 
 site cliffs turned ashy and then slowly darker, A little 
 crimson cloud hung briefly over the eastern wall; then 
 it too turned ashy gray. A belated crow flapped his som- 
 ber way along the rim of the cliff and cawed an ominous 
 warning of the coming darkness. Night perched on the 
 eastern ridge like a vulture, waiting patiently for the 
 death of its victim Day. The Seven Stars came early 
 over the rim out of Death Valley, and I left the philoso- 
 pher, wondering whither I would next be driven by his 
 battering methods of conversation. 
 
7^ THE CASE OF THE PEOPLE AGAINST 
 
 X 
 
 Medical Science and Legal Casuistry 
 
 WHEN I drifted into the desert I had no purpose 
 at all; but the Ass had now given me one. 
 And like other men with only one intention, I 
 pursued it constantly. I was anxious to find him again, 
 but for days he had eluded me. I made a systematic 
 search and concluded that he must have left the country. 
 There were- other burros in the hills and the only sign 
 by which I could distinguish his tracks from those of 
 the others was the old shoe that still clung to his foot. 
 He must have wrenched it between two rocks since the 
 famous thrust at my knee, for its track was at a curious 
 angle to the direction in which he travelled. There was 
 no sign of the old shoe on the trail over the pass into 
 Hungry Bill's Cafion, nor on the trail over the ridge on 
 the south. He must have gone down and out at the 
 mouth of Surprise Canon. 
 
 I picked up his track a mile below camp. For some 
 distance it indicated a rambling disposition, for he had 
 been feeding indifferently, and had slid into the wash 
 for a drink. But farther on there was a directness in his 
 course that was a sure sign that he had something defi- 
 nite in mind. The track of another burro joined his; 
 then another. At the mouth of the canon there were the 
 tracks of four, and their trail swung north into the stage 
 road. The Talking Jackass had left me. I followed 
 them along the eastern edge of Panamint Valley, east 
 of the little salt lake, across the little stream that comes 
 
THE LAWYERS AND THE COURTS 17 
 
 out of Hall's Valley; and stopped to ask Panamint 
 Charlie, the old Indian, whether he had seen any burros. 
 "Yes, four: one white, black nose; one black, white 
 nose; one gray, white face; one big dark one, old; he 
 was the leader. They went by two days ago. Drank a 
 little at the creek; stood around for several hours on 
 the ridge in the distance on the north. They have gone 
 to Wild Rose Caiion." That was the Indian's judgment. 
 
 I went the long hot way; saw where they had stood 
 about and rolled; where they had meandered along,, 
 each one half forgetful of the fact that he was a mem- 
 ber of a travelling party, while he sought food in slen- 
 der mouthfuls. I met the desert stage coming down the 
 grade, but the driver had not seen that particular bunch 
 of burros. We were both lonesome and chatted desert 
 commonplaces and the somewhat elderly news from the 
 outside. In the canon I passed the stage station ; it was 
 a tent with a man, two cats and a dog ; the stable was a 
 bit of overhanging cliff. Farther up was the establish- 
 ment of Kennedy, the squaw man, who was raising a 
 brood of halfbreeds and a few vegetables near the 
 springs, and traded with occasional passersby. Sho- 
 shone Indians were camping near and they said that the 
 burros had gone up Wild Rose Canon along with a band 
 of theirs. 
 
 I went up to the old charcoal kilns, where years be- 
 fore the meager pines had been cut and the charcoal 
 burned and packed across Panamint desert to the Modoc 
 mine in the Argus range. The burros were feeding 
 close together and I had to wait for a better time ; for 
 my Philosopher never considered me in the presence of 
 others. Next morning, after he had warmed his tail in 
 the sun for an hour and sauntered about another two 
 
78 THE CASE OF THE PEOPLE AGAINST 
 
 hours picking his breakfast, I accosted him among the 
 rocks. He showed a slow eagerness that boded well, 
 and seating myself on a rock while he adjusted his feet 
 among the stones, I said : "Suppose that all the difficul- 
 ties that you have emphasized are as serious as you have 
 pictured them. In every age, in every nation, wherever 
 there has been progress there has always been strain be- 
 tween existing institutions and the changing wants of 
 the people. Instead of being a sign of weakness or cor- 
 ruption or hypocrisy, it is everywhere the sign of vigor- 
 ous growth. Will not the healthy activities of public life 
 eliminate the ineffective machinery and substitute a bet- 
 ter?" 
 
 "Oh, yes," said he, with a quick forward movement 
 of the ears ; "but what we are now interested in are the 
 intellectual and moral activities of the class of men who 
 have made the machinery of justice ineffective. There 
 are nearly as many judges, justices and lawyers in this 
 country as there are soldiers and sailors in the army and 
 navy of the United States. The nation devotes some of 
 its best educational efforts to training them. In their 
 own profession there has been no lack of models worthy 
 to b imitated. But " He never finished the sen- 
 tence ; after a lull he started in a new place. 
 
 "If the medical profession had clung to blood-sucking 
 as the fundamental principle of medical practice, and 
 had developed a luxuriant system of subsidiary rules to 
 bolster up an essentially obsolete practice, the doctor 
 would still be a leech and his profession would have to 
 face hatred and contempt. But the modern doctor has 
 become a highly trained scientific man. He is ready to 
 sweep aside old methods altogether in the interest of ef- 
 ficiency and good health. Thousands used to die of 'in- 
 
THE LAWYERS AND THE COURTS 79 
 
 flammation of the bowels' ; but instead of developing an 
 elaborate therapeutic system of treatment on the prin- 
 ciple of the hot compress for the patient, supplemented 
 with a systematic, thoughtful scratching of the head for 
 the doctor, the surgeon now opens the patient, cuts off 
 the appendix and sews him up again. Most of the vic- 
 tims recover, and when one does die they know what 
 was the matter. 
 
 "The progress of medicine has been such that one 
 woud not need to blush even at the claim that a divinity 
 had guided the doctors and their associate scientists in 
 their hopes and labors. The greatest and best part of 
 the doctor's work now actually consists in helping the 
 people avoid disease, in exposing the causes and con- 
 quering them. In recent years the work along scientific 
 medical lines has been morally as well as intellectually 
 magnificent. There is more than enough hypocrisy, 
 charlatanry, and false pretence, but the forms under 
 which these things appear are themselves a tribute to 
 the power of right thinking and great principles. And 
 as always in the history of the world when men have 
 been under the spell of great principles, there is the qual- 
 ity of sacrifice and martyrdom. Witness the men who 
 calmly risked and gave their lives that yellow fever 
 might be conquered. In the medical profession not only 
 have details been perfected but the very fundamentals 
 of both principle and practice have been modified when 
 progress required it, with the result that medicine now 
 rests on a thoroughly scientific basis and in its intellec- 
 tual quality ranks high among the sciences. It is only by 
 comparison with such professional vigor that the stale 
 and unprofitable quality of American judicial methods 
 can be appreciated." 
 
80 THE CASE OF THE PEOPLE AGAINST 
 
 "It seems to me," said I, "that you confuse two radi- 
 cally different things. Medicine in all its bearings is a 
 physical science and is susceptible of exactness both in 
 definition of principle and in practice. Judicial practice 
 and the principles of jurisprudence fall among the moral 
 sciences, which cannot be subjected to exactness of defi- 
 nition or practice without doing violence to human na- 
 ture. The latter must always depend for their actual 
 substance upon the current condition of the nation, its 
 social and material outlook and its stage of develop- 
 ment." 
 
 The Burro replied: "Your criticism is based on the 
 assumption that I hold the underlying principles of your 
 judicial system unsound. But it is because what you say 
 is true that the system has run out of harmony with this 
 stage of civilization. What was good and necessary at 
 the outset may be a real handicap now. There are ex- 
 cellent examples from among your so-called moral sci- 
 ences that help to understand how a system of thought 
 may develop itself out of harmony with its surroundings 
 by a consistent pursuit of principles that in themselves 
 are not false. The forms of thought are right ; but when 
 you begin to pour into them the infinite and incessantly 
 changing variety of human interest the trouble begins. 
 This is especially true when great thoughts cease to in- 
 terest the nation and the mind centers on petty advantage 
 and convenience. 
 
 "The ancient Hebrew law was believed to be not only 
 sacred and inviolable, but applicable to every conceiva- 
 ble situation that might arise. As soon as this thought 
 came to be thoroughly accepted the old and simple mean- 
 ing of the law was stretched and twisted to fit every 
 kind of case, even such as could not have arisen at the 
 
THE LAWYERS AND THE COURTS 81 
 
 time the law was first made. This process grew into an 
 elaborate system of casuistry that finds its record in the 
 Talmud. But the continued appHcation of great prin- 
 ciples to little things to which they should never have 
 been applied at all, the stress laid upon small matters to 
 the neglect of the great, developed into a hard thick 
 crust of petty, unnatural thought and practice. All 
 through this system of casuistry there run threads of 
 gold, profound thought, spiritual elevation, moral beau- 
 ty; but these did not give their quality to its final form. 
 The drift was wrong." 
 
 I said in answer to his argument, "J^sus dealt ade- 
 quately with this question. He only condemned the false 
 emphasis on Httle things." 
 
 "The results speak for themselves," he said. "The 
 system smothered spiritual life and it never from within 
 brought about a revival of spiritual growth. But there 
 is a still more degrading cause for the growth of cas- 
 uistry. When a people has lost the desire to obey 'the 
 law which it once held supreme, and ceased to find obe- 
 dience tolerable, yet does not dare to deny its authority,' 
 then it wants the law explained away, and casuistry is 
 the ready servant to do it. 
 
 "The practice of casuistry in its morally healthy 
 sense developed naturally out of the necessities of the 
 confessional; and it was doubtless a useful instrument 
 in the task of laying ecclesiastical penalties upon the mis- 
 conduct of men. But the degrading form in which it 
 was developed by the Jesuits in the sixteenth century 
 had its roots in the desire to keep within the pale of the 
 church a generation of men and women who yielded only 
 a nominal obedience to the law of Christian morals, and 
 in practice obeyed the dictates of their passions. The 
 
82 THE CASE OF THE PEOPLE AGAINST 
 
 general method consisted in stating the moral obligation 
 of a precept in terms that were above criticism and then 
 tearing away all its real force by exceptions and qualifi- 
 cations. The general result of the method was to find 
 excuses for nearly every kind of human weakness. 
 
 "Here again a method, useful in its nature, and used 
 upon a set of principles that were entirely sound, and 
 for a purpose which in its origin must appeal to the best 
 of men, ran wild because the pressure from the outside 
 gradually twisted it out of its proper course. Doubtless 
 many of the men who applied the method were rather 
 the victims of an uncontrollable drift. 
 
 "When Christianity came it shattered the Pharisaic 
 method by making a fresh appeal to great principles. 
 When the Jesuitical system had run its ridiculous length 
 Pascal gave it the death blow with his Provincial 
 Letters." 
 
 "It seems to me you have begun to drift," said I. 
 "The historical examples are interesting, but what is 
 their appHcation to the matter in issue? There is noth- 
 ing plainer in history than that a new social or political 
 or religious principle runs its course of usefulness to an 
 apex. The machinery for its application becomes more 
 complicated and important until the main thought itself 
 drops into the background. When a new start is made 
 it is not from the place where activity ceased but from 
 some entirely new point. But what has casuistry done 
 to our judicial methods?" 
 
 The Burro looked across to the other slope of the 
 cafion, where a young jack hurrying down hill was loos- 
 ening stones enough to batter a city with. When he 
 again concentrated his attention on me he answered my 
 complaint thus : "In its youth a nation may believe that 
 
THE LAWYERS AND THE COURTS 
 
 83 
 
 it has been called of God to make the world better ; and 
 in the days of its maturity the people may forget every- 
 thing except their private personal gain. Interpretation 
 of the law and the people's attitude toward it are gov- 
 erned by the kind of thoughts that are running through 
 their minds. When the old emotions have been overlaid 
 with the slime of sordidness, when men no longer believe 
 in their hearts the great things that they profess with 
 their lips, when their thought is out of harmony with 
 moral rules, evasion and casuistry are the weapons with 
 which public morality is undone. 
 
 "Your elaborate system of seeking and executing 
 justice tends to the exaggeration of its own faults even 
 under the most favorable conditions of public morality. 
 But in the end of the nineteenth and the beginning of 
 the twentieth century the condition of commercial and 
 political morality was such as to give a tremendous im- 
 petus to the unrighteous use of technicality, evasion and 
 delay. This period and the attempts at law enforcement 
 on a large scale reveal as well as anything in its history 
 the weakness and lameness of your system. No factor 
 in your national life has done more to bring into promi- 
 nence the weak points of your judicial arrangements and 
 to increase their disrepute than the lawlessness of the 
 great corporations. It became the common understand- 
 ing that they would pluck the public. Instances can be 
 picked up in the records in every corner of the land, 
 from the pine-covered hills of northern Maine to the cac- 
 tus-covered deserts of southern California. With the 
 best intentions the public could not protect itself. 
 
 "As fast as legislation was perfected new devices of 
 evasion were invented. By the time the tortoise-footed 
 courts were ready to deal seriously with a case the aver- 
 
/ 
 
 84 THE CASE OF THE PEOPLE AGAINST 
 
 age monopoly was ready to violate the purpose of the 
 law in some other way. When evasion failed to accom- 
 pHsh the desired end, the law was directly broken in the 
 assurance that with the assistance of the 'best lawyers' 
 and the endless legal devices for cheating the law itself 
 the punishments of the law could be nullified and the 
 people worn out. 
 
 ''Under your system of determining, by endless ap- 
 peals, whether a law is really a law or not, the great 
 business interests will not admit, until compelled to do 
 so, that any of the laws affecting them are just, and they 
 will not voluntarily obey them. This is one of the traits 
 of the brigand and pirate ; but the system itself encour- 
 ages the lawless to fight instead of yielding. The ingen- 
 uity of wrong-doing can triumph because it can take all 
 the time it needs for its purpose. Evasion can keep 
 ahead of legislation and technicality and delay can hog- 
 tie the efforts to enforce the law until time has mini- 
 mized its importance. Whatever improvement may be 
 made will be due not to those who profit by the present 
 conditions, but to the anger of the people." 
 
THE LAWYERS AND THE COURTS 85 
 
 XI 
 Legal Verbosity 
 
 I HAD HOPED," said I, ''that you would make such a 
 declaration. The final responsibility rests with the 
 people." 
 
 ''Certainly," replied the Ass. "The kind of laws, the 
 methods of procedure, the kind of judges and the quaUty 
 of their judgments depend in the end on the people. But 
 they expect their institutions to accomplish the work 
 without perpetual tinkering to undo the wrongs created 
 by interested parties." 
 
 "Let us consider specifications," said I. "When the 
 changes come what will be the most important ones?" 
 
 The wise old Burro chewed a mouthful of food very 
 slowly and then flapped his lower lip gently, as if the 
 itching of it were to him the most important thing in 
 the world. "I think," he said, "that the most attractive 
 change would be a reduction of the verbosity of legal 
 documents. The language used in them typifies as well 
 as anything else the intellectual attitude of the legal 
 world. The hope of perfection is placed in verbosity. 
 Every rat-hole of expression is carefully stuflfed with 
 mediaeval words ; and then each rat-hole and the nature 
 of the stuffing is carefully described. 
 
 "I might say to you that last night just before the 
 moon went down, a coyote murdered a jack-rabbit on 
 the broad gravel flat near the mouth of Wild Rose 
 Canon. You would understand the time, place and na- 
 ture of the act. A lawyer would say the same thing in 
 
86 THE CASE OF THE PEOPLE AGAINST 
 
 an indictment about like this : 'that a coyote, known vul- 
 garly as a dog-like burrowing animal or prairie wolf, 
 and in scientific terms called Canis ochropus estor, being 
 then and there a carnivorous or flesh-eating animal, and 
 having in his possession, with felonious intent, a com- 
 plete set of biting, crunching and cutting teeth set in a 
 pair of interacting jaws equipped with powerful muscles, 
 did, at about the hour of fifteen minutes past three a.m. 
 (ante meridian), on the gravel flat at or near the wide, 
 flat lower end of a mountain caiion known and spoken 
 of as Wild Rose Caiion, in full moonlight, wilfully, fe- 
 loniously, with murderous intent and malice afore- 
 thought, attack, set upon, assault, kill, murder and do to 
 death a full grown jack-rabbit, said jack-rabbit being 
 then and there a male rodent of the genus and species 
 Lepus calif ornicus deserticola; that the said coyote did 
 thus set upon, assault, kill, slay and murder the said jack- 
 rabbit at the aforementioned time and place, by feloni- 
 ously and with maHce aforethought seizing the said jack- 
 rabbit by the rump and then and there breaking his back 
 and his neck and then and there tearing, rending, chew- 
 ing and eating up the said jack-rabbit, hair and all; all 
 of which is contrary to the law for such cases made and 
 provided and against the peace and dignity of the species 
 Lepus calif ornicus deserticola; and to the great harm 
 and destruction of the said rodent.' All the redundancy 
 is a clumsy attempt to define the coyote, the rabbit and 
 the act of murder. There has been no enlightenment, no 
 additional information." 
 
 "Your effort," said I, "is mildly humorous, but it has 
 all the ear-marks of gross caricature. It is more reasona- 
 ble to suppose that the careful attention to detail is the 
 result of long experience in court practice, and necessary 
 
THE LAWYERS AND THE COURTS 87 
 
 in order to avoid trouble later in the prosecution of the 
 case." 
 
 "I admit," said the Burro, "that it is a gross carica- 
 ture of the reasonable methods of sane men; but that 
 caricature can be duplicated from the solemn court rec- 
 ords. The worst thing about it is that it shows how any 
 attempt to attain perfection at the expense of simplicity 
 and directness defeats itself. The only proof needed to 
 show that such methods of expression are unnecessary 
 is the fact that at least in recent English practice and in 
 some states an indictment now states the simple fact. 
 But all through the field of legal documents the same 
 characteristic runs. And the language of the docu- 
 ments is only the written part of the mental processes 
 characteristic of lawyers and the courts. The intent is 
 everywhere apparently to shut out the ordinary play of 
 human intelligence by definition, objection, repetition. 
 
 "No matter what part of the system is examined this 
 same desire to perfect definition, to subdivide, to make 
 minute specifications, ends in the inevitable result, wor- 
 ship of words and forms at the expense of judgment and 
 discretion. Not only does all this in practice infinitely 
 multiply the dangers of error, but often the subdivisions 
 of classification are so minute that no one can tell in 
 what pigeon-hole a given thing shall be put. 
 
 "When a crooked clerk has taken money by manipu- 
 lating a check, has he committed larceny, embezzlement, 
 forged a check or issued a fictitious check? If it is 
 merely a question of the check, has he forged a check or 
 issued a fictitious one? Suppose he is charged with the 
 latter. He proceeds to show that there is a man living 
 with the name he used, and so on. Sometimes neither 
 court nor jury, after they have heard the evidence and 
 
8» THE CASE OF THE PEOPLE AGAINST 
 
 are sure that the man is guilty, can decide exactly what 
 ought to be done because of the minute subdivisions 
 made by the law and appellate decisions. It all reminds 
 me of the problem of the Yellowhammer. In the East 
 he is the Golden-winged Woodpecker; but in the West 
 his wings are red. Maybe they are different species or 
 not. It depends in part on what you call a species and 
 in part on the particular bird you happen to be looking 
 at. I once saw one of these flickers with one wing scar- 
 let and the other yellow. If I were a judge or a jury- 
 man I would have to give it up as a bad job. I would 
 not dare to convict the bird of being anything. But be- 
 ing only a common Ass, I know that he was a competent 
 woodpecker, guilty of both the red and yellow. 
 
 "If this process of verbal elaboration at the expense 
 of sound thought and action," said I, "is itself one of the 
 normal processes of human development, it is hardly a 
 matter to scold about but a thing to be studied for its 
 own intrinsic interest." 
 
 The Ass repUed, "As an academic subject of study 
 it has great intrinsic interest ; but in practical life things 
 that seem of small significance are often fatal. The 
 struggle is tense, and small handicaps often destroy all 
 chances of success. They act Hke a strong brake that 
 clutches the hind wheels of a heavy load. The four 
 mules at the front of the wagon know that they are 
 working hard; and everywhere from the ears of the 
 leaders to the king-bolt there is much action, but the load 
 does not move." 
 
THE LAWYERS AND THE COURTS 89 
 
 XII 
 
 The Unanimous Jury 
 
 I MADE a suggestion. "Suppose we consider some one 
 line along which there has been unwholesome devel- 
 opment. There is bound to be friction in the appli- 
 cation of any set of principles, and this would be espe- 
 cially true where the nature of the matters dealt with 
 requires exactness." 
 
 Said the Ass, "Let us take the most sacred institu- 
 tion in Anglo-Saxon history, the bulwark of personal 
 liberty, the strong guard of the helpless, the hope of the 
 innocent — the Jury. What is the feeling of the Ameri- 
 can people toward the jury? Is it not the settled con- 
 viction of the people that the jury is the last and best 
 bulwark of the wrong-doer? In practice the innocent 
 are often willing to leave their fate to the judge, while 
 the guilty, if they fight at all, invariably demand a jury 
 trial. Likewise in civil cases the man with justice on 
 his side is willing to go to trial without a jury. And 
 among sensible men there is an intense dislike for jury 
 service. It is merely another way of stating the univer- 
 sal unwillingness to be subjected to frivolous, searching, 
 irrelevant questions in jury selection, the unnecessarily 
 long and tiresome trial stage and the final crucial con- 
 test of intelligence against stupidity or even crookedness 
 in the jury room. Not alone the laymen condemn it. 
 The most hostile judgment comes from men high in the 
 legal profession. 
 
 "It is out of harmony with the needs of the time; 
 
90 THE CASE OF THE PEOPLE AGAINST 
 
 and this lack of harmony is due, not alone to any recent 
 changes in the jury, but to the fact that it has long in 
 many ways remained unchanged while nearly all other 
 social and political institutions have undergone profound 
 changes. There can be no historical argument against 
 changing the method of selecting the jury because in 
 its early history it underwent many radical changes. 
 Not more than six hundred years ago the twelve men 
 that formed the jury were sworn witnesses. At one 
 time, if the twelve could not agree on the facts, others 
 were added until there were twelve that did agree. 
 From that simple, effective and flexible method of get- 
 ting a decision has developed the slow, uncertain jury 
 system of today. Now the juryman must not only not 
 have been a witness to the facts, but he must not have 
 formed a definite opinion on the merits of the case. The 
 net result of the changes that have come over Anglo- 
 Saxon civilization is that the jury has become a very ex- 
 pensive means of dealing out justice in small cases and 
 a very uncertain and dangerous one in important cases. 
 "When the juryman was a witness he was selected 
 from the neighborhood of the action. Now he must 
 still be from the general neighborhood, and the men 
 best fitted for the service are all likely to be famiHar 
 with the facts. This makes the selection of a jury in 
 important cases a matter of extreme delicacy and dif- 
 ficulty. Certain whole classes of men, all of them spe- 
 cially qualified to weigh evidence, are exempt from jury 
 service. The judge can excuse from service those who 
 can give good excuses ; and one only needs to watch the 
 line of citizens who make successful excuses to realize 
 that the most effective men get off most often. In many 
 states either side may reject a juror if he is not on the 
 
THE LAWYERS AND THE COURTS 91 
 
 assessment roll. Under present conditions what earthly 
 relation has this to a juror's efficiency? The fact is ig- 
 nored in practice and is used only to get rid of a tnan 
 toward whom one side or the other holds objections too 
 vague to be otherwise enforced. 
 
 "Under the present trying conditions the best men 
 will do anything except commit perjury to escape jury 
 service. Almost the only man who does not protest 
 against serving is the professional juryman, the Jack-in- 
 the-Jury-Box, who, is perforce a man without a regular 
 calling, a floater on the sea of circumstance, the least 
 certain of all men in his moral convictions and most sus- 
 ceptible to influences of an improper kind. Out in the 
 world he only clings to the hem of civilized society, but 
 in the jury room he cannot be overridden. Where the 
 jury's verdict has to be unanimous he is equal in strength 
 to his eleven colleagues together. If he has any moral 
 defects or mental twists or evil purposes he cannot be 
 coerced. He does not even have to give any reasons for 
 his attitude if he does not wish to do so. 
 
 "In the struggle to get a jury there is a constant pro- 
 cession of capable men out of the jury-box and tremen- 
 dous effort to prevent the dismissal of unworthy men. 
 By the time a jury is selected weariness and disgust are 
 already sitting in the box with the jury. It is not un- 
 common, even in a justice court, and in civil cases in- 
 volving not more than $ioo, that the court uses up a 
 day and the time of a roomful of men to get a jury. To 
 one familiar with the practice in the United States the 
 declaration of an eminent Canadian judge that he never 
 saw it take more than half an hour to select a jury is so 
 startling as to be practically incredible. All this tremen- 
 dous waste of energy has no relation to the quality of 
 
92 THE CASE OF THE PEOPLE AGAINST 
 
 justice; it is necessary only because the rules make it so. 
 
 ''But the most serious factor of the jury system is 
 the moral uncertainty and strain due to the unanimous 
 verdict. In some states there has been a belated recog- 
 nition of this difficulty and, as in California, three- 
 fourths of the jury can render a verdict in civil cases. 
 The very fact that jury service calls for intelligence and 
 good judgment and integrity should of itself be fatal to 
 the doctrine of the unanimous verdict. Even twelve 
 reasonable men are likely to disagree, and the verdict is 
 very commonly brought about by breaking down the 
 judgment of one or more of the jurors. But under the 
 present rules for the selection of the jury there is a very 
 great likelihood that one or more will prove themselves 
 incompetent after the jury is locked up. The compro- 
 mise judgments in civil cases and the recommendations 
 to the extreme mercy of the court in criminal cases are 
 quite commonly due to the necessity of placating some 
 juryman, who first after they are locked up reveals his 
 prejudice or inefficiency or his unwillingness to abide 
 by the instructions of the court. 
 
 "The unanimous verdict makes it almost impossible 
 to enforce laws against which there is any sort of oppo- 
 sition. The clumsiness of jury selection, its delay and 
 cost, and the great uncertainty of its decisions make the 
 jury as an institution almost a complete protection to 
 criminals in certain classes of crimes. When the poUce 
 in large cities make raids on gambling and disorderly 
 houses and capture large numbers of persons who have 
 violated the law it is a well recognized practice for every 
 one of them to demand a jury trial, with the result that 
 the courts are clogged with the cases. The uncertainty 
 of securing convictions coupled with the Herculean la- 
 
THE LAWYERS AND THE COURTS 93 
 
 bors compels the court to compromise with the criminals 
 and agree to inflict very light punishment in the form of 
 a nominal fine if they will plead guilty. This in turn re- 
 acts by creating contempt for law among criminals and 
 a feeling on the part of police officers that it is not worth 
 while to make arrests." 
 
 I reminded my friend the Ass that jury action was 
 specially intended to eliminate all doubtful cases, and for' 
 that reason a unanimous verdict of twelve men with dif- 
 ferent points of view, training and experience seemed an 
 ideal method of separating justice from cruelty and cap- 
 rice. But he promptly attacked the whole theory of un- 
 animity, slipping in another illustration as an argument. 
 He said : 
 
 "A more nearly unanimous vote can be secured when 
 men are swayed by their emotions than when they are 
 governed by their reason, because the feelings are more 
 surely touched than the reason can be convinced. In 
 August, 1905, the Norwegian people voted on the question 
 whether they should remain in the Union with Sweden 
 or become entirely independent of the Swedes and the 
 house of Bernadotte. Out of a vote of over 321,000 only 
 161 were cast against independence. The majority was 
 2,000 to I in favor of freedom. 
 
 "Had they been asked to decide by vote whether or 
 not their country is cold, there would have been far 
 ^fcater disagreement, because it would be a question of 
 e^ence. Most of them might vote that it is cold ; but 
 when the snow goes off and the ice goes out of the fiords 
 and the sheep and cattle move into the mountains and 
 the country is sun-kissed above almost any other land on 
 earth, who then among them would vote that his country 
 is cold? The evidence of their own senses would be 
 
94 THE CASE OF THE PEOPLE AGAINST 
 
 against them. A reliable judgment would require the 
 weighing of evidence, the balancing of facts against each 
 other, and a general knowledge of world conditions. 
 Tens of thousands would vote their conviction that Nor- 
 way is an ideal country, and cold only to the thin-blooded, 
 frost-bitten weaklings of other countries. 
 
 In other affairs of men a majority of two thirds is 
 regarded as striking proof that the facts are plain and 
 the arguments convincing; and that the minority is ac- 
 tuated by reasons and motives that have no direct bear- 
 ing on the principal issue. When the question at issue 
 is one of great importance, the small minority is largely 
 composed of a residuum of voters, doubtless honest, but 
 either prejudiced, or unfit by nature or training to form 
 independent judgments, or of vacillating minds that can- 
 not keep a steady course but veer with every breath of 
 opinion. As you approach unanimity the little minority 
 more and more clearly takes on this special character of 
 an irreducible element that is insoluble in normal reason 
 and feeling. 
 
 "There is an interesting discussion of the principle of 
 unanimity in the Federalist. Hamilton voiced the recent 
 and bitter experience through which the Confederation 
 had gone. When he came to the old rule that required 
 the vote of nine of the thirteen colonies to carry any im- 
 portant matter he said, 'A rule destructive of vigor, con- 
 sistency or expedition . . . must always make the spirit 
 of government a spirit of compromise and expedience, 
 rather than of system and energy.' In another place he 
 said, 'the necessity of unanimity in public bodies or of 
 something approaching towards it, has been founded upon 
 a supposition that it would contribute toward security,' 
 but he showed that the resuhs are the reverse of what 
 was expected." 
 
THE LAWYERS AND THE COURTS 95 
 
 I interrupted him to say that Hamihon was dealing 
 with questions of future public policy, in which there is 
 always legitimate difference of opinion; while the jury 
 is expected to deal only with thoroughly established his- 
 torical facts. 
 
 "Evidence," he replied, "even as it is presented to ju- 
 ries, is not the simple thing it is supposed to be, but in- 
 volves the same qualities of probability as the facts on 
 which men in the outside world base their judgments. 
 What Hamilton said of the principle of unanimity in po- 
 litical history is true as it is applied to the jury. The 
 history of every political establishment in which the prin- 
 ciple has prevailed is a history of impotence, perplexity 
 and disorder.' 
 
 "There is a curiously false assumption in the suppo- 
 sition that present methods of selecting the jury eUm- 
 inate the usual elements of moral and intellectual uncer- 
 tainty. The chances of securing a mistrial or a compro- 
 mise verdict are so great that as one who is himself a 
 great jurist said, 'lawyers almost invariably seek jury 
 trials in causes which they regard as doubtful, and shun 
 them in causes which they regard as strong.' One of 
 the most nearly indefinable and yet one of the most pow- 
 erful circumstances that brings undesirable elements into 
 the jury in spite of the most careful application of for- 
 mal rules of selection, is the fact that the ordinary mind 
 is under severe constraint while undergoing examination 
 for fitness as a juror. He does not need to be dishonest 
 to deceive both himself and his examiners as to what he 
 will do about evidence that he has not yet heard. This 
 constraint in a large measure continues through the 
 trial. When he enters the jury room, especially after a 
 long, hard trial, there is a tremendous reaction of wilful- 
 
96 THE CASE OF THE PEOPLE AGAINST 
 
 ness. For the first time he is at liberty to break loose 
 mentally; and whether it is pleasant to consider or not, 
 it is an unfavorable time for the exercise of calm judg- 
 ment. For very many men, it is the time when individ- 
 ual peculiarities of mind and opinion, instead of being 
 subdued, break out almost resentfully. This, while not 
 true of all men is true of so many that the unanimous 
 verdict is one sure way to avoid justice. But being only 
 a common ass, I merely recommend the mind of the 
 juryman to the practical psychologists as a most inter- 
 esting subject for practical study. 
 
 "Ex-President Taft, who was himself a federal judge 
 before he was President, in an address to the graduating 
 class of the Yale Law School in June 1905 summed up 
 in a few simple, stinging sentences the condition of your 
 judicial procedure. He said, *It is by no means clear 
 that in our jurisprudence trial by jury in civil cases is an 
 unmixed good. ... I grieve for my country to say 
 that the administration of criminal law in all the states 
 of the Union (there may be one or two exceptions), is a 
 disgrace to our civilization.' He explained that the dif- 
 ference in efficiency between this country and England 
 is due to the fact that in England the judge is a real 
 judge, who has complete control of the case; and after 
 the conviction there is no appeal in criminal cases unless 
 the judge himself wants certain questions of law passed 
 upon by the higher court. He said further. The insti- 
 tution of trial by jury has come to be regarded as a fetish 
 to such an extent that state legislatures have exalted the 
 power of the jury and diminished the power of the court 
 in the hearing of criminal cases. The function of the 
 judge is limited to that of the moderator in a religious 
 assembly. The counsel for the defense, relying on the 
 
THE LAWYERS AND THE COURTS 97 
 
 diminished power of the court, creates by dramatic art 
 and harping on the importance of unimportant details, 
 a false atmosphere in the court room which the judge is 
 powerless to dispel and under the hypnotic influence of 
 which the counsel is able to lead the jurors to vote as 
 jurors for a verdict which, after all the excitement of the 
 trial has passed away, they are unable to support as men/ 
 Taft believed that the enormous increase in crime is 
 traceable to the inefficiency of criminal procedure,, and 
 said, 'Murder is on the increase and so are all offenses 
 of the felony class, and there can be no doubt that they 
 will continue to increase unless the criminal laws are en- 
 forced with more certainty, more uniformity, more. se- 
 verity than they are now.' Did you know that there 
 were nearly 132,000 murders and homicides in the Unit- 
 ed States in the twenty years 1885-1905? If the slaugh- 
 ter, instead of being indiscriminate, had been confined to 
 lawyers, there would not be a lawyer left in the country." 
 We agreed to adjourn with the understanding that 
 His Highness would receive me later in the day if I 
 chose to seek him out, and if he had nothing more im- 
 portant on his mind. 
 
98 THE CASE OF THE PEOPLE AGAINST 
 
 XIII 
 Jury Stories 
 
 I FOUND him late in the afternoon at a Uttle spring, 
 where he and another burro were deHcately nipping 
 each other on the shoulders. I sought to have him 
 devise changes in the jury system that would do away 
 with the objections which he and Taft had raised against 
 it. But his mind had become too playful to work so 
 hard, and he began to tell stories about the performances 
 of juries. Among the tales he told were the following: 
 
 "A juror in KaUspell, Montana, accepted a bribe to 
 influence his action in a murder case. He stood out alone 
 against the other eleven and forced a disagreement. But 
 he bragged about it to his wife. Even that would have 
 caused him no trouble because a wife cannot testify 
 against her husband in a criminal action. But she got 
 a divorce from him; and that made her a competent 
 witness. She testified against him and he was undone; 
 he was found guilty and sent to the penitentiary for two 
 years for taking a bribe. But for every juror that brags 
 and then is divorced there are a good many that hold 
 their tongues. All the public ever knows is that there 
 has been a disagreement and that the unanimous verdict 
 is a serious matter. 
 
 "In 1905 a jury in Oakand, California, after seven 
 hours of deliberation, brought in a verdict of 'not guilty' 
 in the case of a man charged with embezzlement of his 
 employer's funds. The public has no right to know what 
 goes on in the jury room, but even American good na- 
 
THE LAWYERS AND THE COURTS 99 
 
 ture sometimes revolts, and after the trial it transpired 
 that the jury had stood eleven for conviction and one for 
 acquittal. The twelfth man could not understand a 
 point of law and the other eleven spent the seven hours 
 explaining it to him. He would not yield, so they, being 
 sensible men, and knowing that a disagreement of the 
 jury would mean a new trial and a heavy burden on the 
 public treasury without any assurance of a better result, 
 settled the matter for good by bringing in a verdict of 
 acquittal. 
 
 'Tn Reno, Nevada, after being out sixty-four hours 
 and standing eleven for conviction of murder in the sec- 
 ond degree and one for acquittal, a jury was discharged 
 from custody. The twelfth man claimed that he had 
 learned by inspiration from God that the defendant was 
 innocent." 
 
 "Your cases," said I, "are all from the wild West. 
 Perhaps east of the Rockies the juries are less freakish." 
 
 "Very well," said the desert Burro, "I speak so much 
 of the West because I love it over much. The air is dry 
 and there is a fine spirit of fair play that one would think 
 is the best foundation for a sound system of justice. But 
 let us take Minnesota. It is cold enough there to make 
 the blood bound freely. The people are all of cold tem- 
 perate origin, not given to violence of feeling, but gifted 
 with the power to act together. The population is great- 
 ly mixed, so that there has been a great grinding of 
 ideas and a steady forward look. 
 
 "Mayor Albert A. Ames of MinneapoHs had during 
 his term of office corrupted men high and low in city 
 poHtics, violated every rule of honor by which decent 
 men control themselves and judge their fellow-men, and 
 debased his beautiful city to a condition of moral un- 
 
100 THE CASE OF THE PEOPLE AGAINST 
 
 cleanness that made her an object of derision to her sis- 
 ters in the Mississippi Valley. The worm turned at last. 
 He was driven out of office, brought to trial for corrup- 
 tion, and convicted. He appealed the case and the Su- 
 preme Court of the state reversed the lower court on a 
 technicaUty. Then began a famous legal chase for re- 
 sults. He had in all five trials. Once he ran away to 
 Vermont. The question of his sanity was raised. 
 
 "Convicted at the first trial, the Supreme Court 
 granted a new trial. The second trial ended in a disa- 
 greement of the jury; the third trial also ended in a dis- 
 agreement. In this third trial the defendant owed the 
 result to one juror, who stood by him for sixty-nine 
 hours and refused to let the eleven other men vote Ames 
 into the penitentiary. Those eleven had voted for con- 
 viction from the first. The fourth and fifth trials ended 
 in disagreements. Then the test of endurance was com- 
 pleted. The county attorney moved that all the indict- 
 ments against the defendant for bribery and corruption 
 be dismissed, and the district judge granted the motion. 
 Exhaustion, not justice, had triumphed. Ames was a 
 free man; and the record of his public career will be a 
 purple blotch on the city's fame for years to come." 
 
 I was attracted by the human interest of his stories, 
 but suggested that it is generally admitted that the state 
 courts are less effective than the federal courts and that 
 perhaps federal juries might well be imitated by the state 
 juries. The suggestion roused my friend the Ass. 
 
 "Oh, yes," he said, "they are just enough better to 
 show clearly how much they both need improving. Dur- 
 ing 1904 and 1905 enormous frauds in connection with 
 the private acquisition of public lands were unearthed 
 in several of the western states, notably in California, 
 
THE LAWYERS AND THE COURT^Sf . . * V '',*• ! ''. i'-ilbl' 
 
 Oregon and Montana. Among those prosecuted was a 
 man who had tried to bribe a former United States dis- 
 trict attorney to hush up the land fraud cases in Oregon. 
 The trial was a long and very careful one; but the jury, 
 after being out a long while reported that it could not 
 reach an agreement. They stood ten for conviction and 
 two for acquittal. When the presiding United States 
 district judge dismissed the jury he stated the merits of 
 the case and called the attention of the prosecuting at- 
 torney to the fact that the jury had disagreed in the face 
 of evidence that warranted but one verdict, and that was 
 conviction. He urged the district attorney to summon 
 the members of the jury before the federal grand jury 
 in order that a thorough investigation might be made. 
 Two of the jurors were friends of the defendant. 
 
 ^'Several other important- trials were held in Oregon 
 in connection with the same series of land frauds. A 
 jury did convict one man, a United States senator, but 
 recommended him to the mercy of the court. He had 
 celebrated his seventieth birthday during the trial, and 
 out of consideration for his great age the presiding 
 judge imposed the light penalty of $i,ooo fine and six 
 months imprisonment. He appealed the case to the Su- 
 preme Court of the United States, went on drawing his 
 salary as senator, and died without serving any part of 
 the sentence or paying the fine. 
 
 '*A representative in Congress, and ly^ partner in the 
 sheep business, and a United States land commissioner 
 were put on trial for subornation of perjury in the same 
 series of frauds." The trial lasted two weeks. The jury 
 was out forty-six hours and took^rty-two ballots, and 
 stood ten for conviction and two for acquittal. The two 
 stubborn jurymen who voted so persistently against 
 
1G2 THE CASE OF THE PEOPLE AGAINST 
 
 conviction offered to vote the other two defendants 
 guilty if the rest of the jury would vote for the acquittal 
 of the Congressman. Stop long enough to consider 
 carefully this proposition in all its bearings. The case 
 was tried three times. The Oregon Congressman was 
 found guilty; but he appealed the case, and the stars 
 alone can tell what finally became of it. 
 
 *'A calm analysis of the results in this series of cases 
 puts in a pitiable light the desperate efforts of the gov- 
 ernment of the United States to convict a crowd of 
 thieves whose guilt was patent to all the rest of the 
 world. At one stage of the work, after many months 
 of the most strenuous effort on the part of many capa- 
 ble public servants, and the expenditure of tens of 
 thousands of dollars, the record showed the conviction 
 of one old man, with a petty sentence hanging over him 
 which the law of probability indicated beforehand would 
 never be executed. In this series the cases were all im- 
 portant, the evidence was good, the prosecution was vig- 
 orous, the judges w^ere as able as any in the country, and 
 the conditions in the government land business at that 
 time required drastic measures to set matters right. 
 There was no special reason why the results should have 
 been what they were except that the defense was able and 
 powerful, and fought hard. 
 
 "Many other important prosecutions were underta- 
 ken by the general government against individuals and 
 corporations at about this time and as a rule the trials 
 revealed the same general characteristics as those I have 
 been talking about. They show what a great and pow- 
 erful government cannot do — bring guilty men to 
 prompt and adequate punishment when those men are in 
 a position to make a vigorous fight to prevent it." 
 
THE LAWYERS AND THE COURTS 103 
 
 I asked, "Why are you so greatly interested in cases ? 
 They are interesting, but difficulties in detail are bound 
 to occur in so great a system." 
 
 He looked at me with a smile of sympathy and 
 flavored his words with a tone of sarcasm. Why should 
 not an Ass make a careful study of cases in order to de- 
 cide what to do next? Lawyers do it, judges do it. In 
 fact the whole system of judicial philosophy is now la- 
 boring under an endlessly increasing collection of cases. 
 Because not all jury cases reveal the traits that I have 
 described is no argument against my position. The 
 comparatively few jury cases that are commendable 
 only make the general darkness visible. 
 
 "The cases I have given fairly typify the workings 
 of the jury system. But the most grievous thing about 
 it all is, not that now and then the results are so foolish 
 as to startle the public, but that the products of the sys- 
 tem as a whole constitute so poor a quality of perform- 
 ance. In my asinine opinion the gravest result is not the 
 large number of miscarriages of justice and the enor- 
 mous friction, cost and delay, but the general conclu- 
 sion about justice which the American people have ar- 
 rived at. Both the increase of crime and the growing 
 indifference to the enforcement of law have doubtless 
 been due to the feeling that law cannot be enforced. 
 And in its present form the jury contributes largely to 
 the demoralizing result." 
 
 "But do you not think," said I, "that there is a faint 
 light on the horizon? In some states the law now pro- 
 vides for verdicts by four-fifths or five-sixths of the 
 jury. What have these slight changes accomplished?" 
 
 "Wonders," said the Burro. "The interests of jus- 
 tice have been fully protected, the baneful power of a 
 
104 THE CASE OF THE PEOPLE AGAINST 
 
 single unjust juror has been crushed, the chances of 
 successful bribery have been greatly diminished, and the 
 tendency to unanimous agreement has actually been in- 
 creased. This last result is due to the fact that men of 
 weak or warped or ill-trained intellect, when honest, 
 do not wish to be left out in the cold, and more readily 
 join their comrades in a verdict. When the unanimous 
 verdict is forever done away in the interest of common 
 sense, it will be possible for the jury to express the sen- 
 timent of the community without first bowing the knee 
 to the forces of evil and stupidity." 
 
 The last interviews left me in a state of depression. 
 Dynamiting at the foundations of one's convictions, 
 sweeping assaults on forms and principles to which the 
 mind has been accustomed from childhood and to which 
 it always reverts in times of distress, are likely to create 
 mental anxiety. The Anglo-Saxon method of dealing 
 out justice, of giving every man what is coming to him, 
 seemed to me the best that could be devised, even with 
 all its admissible faults, because it had been worked out 
 in a long struggle for personal rights, by a people gifted 
 with practical sense, and with infinite care. The more 
 theoretical and complete the criticism, the less likely, it 
 seemed to me, would it stand up under the test of prac- 
 tice. But instead of devising a counter-attack, I retired 
 from the scene. 
 
THE LAWYERS AND THE COURTS 105 
 
 XIV 
 A Successful Revolt in California 
 
 NEXT MORNING long before the sun began to warm 
 the western slopes, I cHmbed out of the canon to 
 the top of the Panamint Range. The spiritual 
 pulse bounds vigorously when the legs are doing uphill 
 work ; and I strongly recommend, as a result of my ex- 
 perience, that the defeated, mentally exhausted, spiritual- 
 ly dejected, let their minds alone and work their legs up- 
 hill a mile or two skyward. This flanking movement will 
 rout the most stubborn depression. By the time I had 
 reached the broad area north of Baldy the warm October 
 sun had prepared a time for sleep. I lay for an hour, 
 dozing and brooding lightly on the general futility of 
 human institutions. The God-made things, the peaks 
 with their snow-caps, Death Valley with its quivering 
 heat, the trickling water and the burning sancj, the cloud- 
 bursts in the mountains and the dust clouds in the deserts, 
 these help to set new standards of value. None of these 
 ever submit kindly to criticism, but are great feeders of 
 contemplation. The critic's place in nature looked piti- 
 fully small from up there. Both spiritual and physical 
 weariness oozed out of my legs while I lolled in sleepy 
 comfort; and took in great courage through the lungs. 
 I wondered why it might not just as well be everlasting. 
 I rose and stretched myself, and climbed to the top of 
 Telescope Peak. On my left was the deadly heat of 
 Death Valley and on my right the deadly cold of Mount 
 Whitney, both within easy range of the eyes. I felt equal 
 
106 THE CASE OF THE PEOPLE AGAINST 
 
 to it all. Here I plotted the undoing of the Ass. I would 
 seek him again and ask him to furnish the specifications 
 for some constructive plan by which the American people 
 could get prompt, cheap, and effective justice. 
 
 After an hour of world-gazing from the top of Tele- 
 scope, I ploughed southward through the sHding shale 
 on the southern slope of that' desert chief. GrowUng 
 shale, laborious snow-fields, clinking plates and thunder- 
 ing blocks of rock, and contentious mountain shrubs all 
 gave me work to do on the long southward drop into 
 old, deserted Panamint. 
 
 After a day's rest I gathered up my scant equipment 
 and put it on the little black burro, which made no com- 
 plaint about her burdens and cared nothing for our intel- 
 lectual doings. I was going to leave the desert. When I 
 got back to Wild Rose I learned from the Indians that 
 when last seen the band of burros was headed north, 
 gathering numbers as it went. I assumed that Emigrant 
 Springs would be their next stamping ground ; and that 
 night I found them at the iron water trough at the lower 
 Emigrant Spring, munching stray bits of straw and pick- 
 ing up scattered barley kernels that some hard-working 
 burro had not had time to finish before his pack was put 
 on. 
 
 I finally came upon the Ass the next morning high 
 up on the flank of Pinto Peak. He gave me a look of 
 friendly interest, mixed with a mild wonder at my per- 
 sistence in pursuing so one-sided a contest. I told him 
 that I had spent a good deal of thought on his contentions, 
 and then went on : "Assuming that all the criticisms you 
 have levelled at the judicial methods of this country are 
 sound, it is still true that the system is the product of a 
 long historical development based on elementary prin- 
 
THE LAWYERS AND THE COURTS 107 
 
 ciples of justice which no one disputes. It is no violent 
 assumption that an instinctively practical people worked 
 out one of their most important institutions by applying 
 those principles to the problems of life. What safer me- 
 thod can there be ? What imaginable substitute, founded 
 either on experience or sound principle can you suggest ?" 
 
 "I have already pointed out," said the Ass, ''how a 
 consistent development of an institution, in the hands of 
 a special class of men who control all phases of that de- 
 velopment and at the same time feed upon the proceeds 
 of the system, may land the whole process in the bogs of 
 shallowness, formality, and ineffectiveness. As for a 
 substitute, history again shows the direction from which 
 relief always comes. Practical necessity devises a way 
 to accomplish the necessary business. The new way is 
 usually destructive of the old one merely by shouldering 
 it to one side. It is always simple and direct, relatively 
 swift in action, and effective. And more often than not, 
 those most interested in preserving the old system are 
 unconscious of the fatal blow that has been struck at their 
 Beloved until it is too late. Commonly the blow comes 
 from an under-water torpedo." 
 
 I interrupted him to say, "I had hoped that without 
 further reference to historical principles and data you 
 might be able to furnish a key to the present problem." 
 
 'That is unnecessary," he replied. "The fatal sug- 
 gestion has already been made and is working itself out. 
 Did you ever hear of the PubUc Utilities Act of the state 
 of California? It covers more than fifty closely printed 
 pages, and is apparently long enough to lose its purpose 
 in endless flounderings in an ocean of verlDOsity. But if 
 the lawyers of the state should study that law and its 
 ultimate significance as that has been worked out in the 
 
108 THE CASE OF THE PEOPLE AGAINST 
 
 decisions that have been made under it, they might rec- 
 ognize the fact that, instead of being one more mess of 
 legal complexity, it is a torpedo of highly explosive gun- 
 cotton, directed as straight as an arrow by the gyroscope 
 of pubHc intention, at the very vitals of the whole com- 
 plex system of judicial procedure. In its every aspect it 
 violates the most sacred judicial tenets, and tumbles into 
 confusion all the legal thimble-rigging, delay, cost, and 
 complexity on which the financial support of the legal 
 profession so largely depends. It has solved the problem 
 of cheap, swift and effective justice of a very high 
 quality. 
 
 "The first and mortal sin of that law is that the ma- 
 chinery for its enforcement is as simple as a buzz-saw, 
 and just as effective. It constitutes the Railroad Com- 
 mission of five members appointed by the governor for 
 six-year terms, provides for a secretary, and authorizes 
 the commission to hire whatever professional experts 
 and employes it may need, gives it control of all the pub- 
 lic utilities in the state outside of incorporated cities, re- 
 moves practically all the so-called reasonable limits to its 
 power, and religiously fences off the judicial powers of 
 the state from interfering with the work of the commis- 
 sion. But in 1914 the people of the state adopted an 
 amendment to the constitution placing all utilities, both 
 in and out of incorporated towns, under the jurisdiction 
 of the commission. 
 
 ''In its field of activity the commission exercises leg- 
 islative, administrative and judicial powers. It exercises 
 the powers of superior courts, including judge and jury, 
 the superior courts are forbidden to interfere with the 
 commission, but the law compels them to enforce the de- 
 crees of the commission. The theory of the jury is shat- 
 
THE LAWYERS AND THE COURTS 109 
 
 tered to atoms. The people of the state first adopted an 
 amendment to the state constitution estabUshing the 
 power of the Railroad Commission over public utilities, 
 and giving the legislature authority to grant to the Com- 
 mission any additional similar or different powers not in- 
 consistent with those already granted in the amendment 
 itself. They first put their general intention into the con- 
 stitution, where the courts cannot touch it, and then give 
 the legislature plenary power to make any laws it pleases 
 on the subject, and practically notify the Supreme Court 
 of the state in advance that any such laws which the leg- 
 islature may pass will be in harmony with the constitu- 
 tion and beyond the scope of the court. 
 
 "All through the plan there runs the spirit of a spe- 
 cial dispensation reUeving the commission from the 
 force of restrictive rules, and, as it were, unbinding and 
 turning loose the old, instinctive spirit of Anglo-Saxon 
 justice. The powers of the commission are so great that 
 even the political parties in their platforms admit that it 
 ranks second only to the Supreme Court; and its effec- 
 tiveness has proved so great that in the political cam- 
 paign of 1914 no one who valued his political life dared 
 to advocate openly the abolition of any of its powers.'' 
 
 'The qualifications of the commissioners," I re- 
 marked, *'are doubtless such that only judicial experts 
 can be appointed." 
 
 "Oh no," repHed the Ass, after rubbing his nose on 
 his leg, "those qualifications are also a seven days' won- 
 der. With such tremendous powers, traversing the 
 whole field of court and jury, law and equity, a commis- 
 sioner does not have to be a judge or even a lawyer, no- 
 thing more than a plain, qualified elector of the state. 
 Actually, most of the members of the new commission 
 
110 THE CASE OF THE PEOPLE AGAINST 
 
 were lawyers, two of them young men, and none of them 
 had ever served on the bench, even as a justice of the 
 peace. In many phases of its work, such as determining 
 the value of pubHc utilities for condemnation purposes, 
 it assumes the powers of a jury, but it curiously ignores 
 the unanimous rule. The act of a majority of the com- 
 mission is an act of the commission ; worse still, any in- 
 vestigation, inquiry or hearing which the commission 
 has power to undertake may be taken by a single com- 
 missioner designated by the commission, and every find- 
 ing, order or decision made by that commissioner, when 
 approved and confirmed by the commission, is the find- 
 ing, order or decision of the whole commission. 
 
 " 'The railroad commission is hereby vested with 
 power and jurisdiction to supervise and regulate every 
 public utility in the state and to do all things, whether 
 herein specifically designated or in addition thereto, 
 which are necessary and convenient in the exercise of 
 such power and jurisdiction.' The commission may do 
 all these things upon complaint of some one else; but it 
 may also do them of its own motion. To this end it has 
 power to administer oaths, subpoena witnesses, order the 
 production of books, papers, or any other material evi- 
 dence bearing on the matter at issue, enter the premises 
 of a public utility to make its investigations, and commit 
 for contempt. In addition, the courts of record are re- 
 quired to do these things for the commission when called 
 upon to do so ; but these same courts are forbidden to 
 interfere in any way with the work of the commission. 
 
 "All the hearings and investigations of the commis- 
 sion are governed by the provisions of the public utilities 
 act and by such rules of practice and procedure as the 
 commission itself may adopt ; and in the conduct of their 
 
THE LAWYERS AND THE COURTS 111 
 
 investigations and hearings neither the commission nor 
 any commissioner is bound by the technical rules of evi- 
 dence. When the commission first began active work 
 the lawyers representing the parties busied themselves 
 raising objections to the introduction or exclusion of evi- 
 dence, and in general conducted themselves as they were 
 accustomed to do in the courts. The commission waved 
 them aside, and not only let witnesses tell their stories 
 in their own way, but often when a witness got tangled 
 up, the commission helped him get started again. The 
 parties to an investigation shall be heard; but the com- 
 mission may and does investigate the facts independent- 
 ly and it has the power to consider every fact that does 
 or may have a bearing on the issue. No informality of 
 procedure or in the manner of taking testimony can in- 
 validate the orders or decisions of the commission. Let 
 us both be content with the suspicion that this brutal 
 overthrow of the technical rules of evidence is intended 
 to increase efficiency. All matters upon which a com- 
 plaint may be founded may be joined in one hearing, and 
 there can be no motion against the complaint on the 
 ground of misjoinder of causes of action or misjoinder 
 or non-joinder of parties. 
 
 "The commission has power to ascertain the value of 
 the property of every public utility in the state and every 
 fact which in its judgment may or does have any bear- 
 ing on such value. Any city, town, county or water dis- 
 trict may initiate condemnation proceedings in a court 
 of competent jurisdiction to take over a utility at the 
 value set upon it by the commission. This finding of 
 value on the part of the commission is conclusive as be- 
 tween the parties. If after the money has been paid the 
 public utility fails to execute a deed the commission may 
 execute the deed as the trustee of the public utility. 
 
112 THE CASE OF THE PEOPLE AGAINST 
 
 ''Parties affected by the orders and decisions of the 
 commission may ask for a re-hearing. If it is denied, or 
 if it is granted, within thirty days after the decision at a 
 re-hearing, the parties may ask the Supreme Court for 
 a writ of review for the purpose of having the lawful- 
 ness of the commission's decision inquired into and de- 
 termined. The commission's record is certified to the 
 court and the cause is heard on that record. No new evi- 
 dence may go before the court. Thirty days are given 
 for the return of the writ and the cause must be heard 
 on the return day unless good reason is shown for a con- 
 tinuation. All actions and proceedings in court under 
 the public utilities act have precedence over all civil 
 cases except election cases, irrespective of their position 
 on the calendar. 
 
 " 'The review shall not be extended further than to 
 determine whether the commission has regularly pursued 
 its authority, including a determination of whether the 
 order or decision under review violates any right of the 
 petitioner under the constitution of the United States or 
 of the state of California. The findings and conclusions 
 of the commission on questions of fact shall be final and 
 shall not be subject to review.' 
 
 "No court in the state (except the Supreme Court, 
 and that only to the extent specified), has any jurisdic- 
 tion to review, reverse, correct or annul any order or de- 
 cision of the commission, or to suspend or delay the exe- 
 cution or operation of such an order or decision, or to 
 enjoin, restrain or interfere with the commission in the 
 performance of its official duties ; 'provided, that the 
 writ of mandamus shall lie from the supreme court to 
 the commission in all proper cases.' Ah, that deUcate, 
 Satanic touch. Even the Supreme Court may only com- 
 
THE LAWYERS AND THE COURTS 113 
 
 pel the commission to act if it proves unwilling, but can- 
 not stop it when it is started. 
 
 "The pendency of a writ of review does not of itself 
 stay or suspend the acts of the commission; that must 
 be done by direct order of the court. And such an order 
 cannot be issued casually as a mere formality to block 
 the work of the commission until the court finds it con- 
 venient to look the matter over. If an order or decision 
 of the commission is suspended the court's order must 
 contain a specific finding based upon evidence submitted 
 to the court *that great or irreparable damage would 
 otherwise result to the petitioner and specifying the na- 
 ture of the damage.' " 
 
114 THE CASE OF THE PEOPLE AGAINST 
 
 XV 
 The Railroad Commission at Work 
 
 THE. FIRST writ of review under the public utilities 
 law was issued by the Supreme Court in the 
 case of the Pacific Telephone and Telegraph 
 Company against Eshleman (president of the Railroad 
 Commission). In its opinion the Supreme Court, with 
 apparent bitterness of spirit, acknowledged the validity 
 of the law and pointed out its remarkable peculiarities. 
 Among other things of great interest it said, Tn this con- 
 sideration the first established fact is that section 67 of 
 the public utilities act does, in violation of all precedent 
 and decision, seek to enlarge the purview of the writ of 
 review. . . . The second fact, which cannot be 
 blinked and must be faced, is that the legislature has 
 with deliberation restricted and curtailed the jurisdiction 
 vested in the superior courts of this state by the consti- 
 tution.' The court went on to say further, Tn view of 
 these considerations we regard the conclusion as irresis- 
 tible that the constitution of this state has in unmistaka- 
 ble language created a commission having control of the 
 public utilities of the state, and has authorized the legis- 
 lature to confer upon that commission such powers as it 
 may see fit, even to the destruction of the safeguards, 
 privileges and immunities guaranteed by the constitution 
 to all other kinds of property arid its owners. And while 
 under our republican form of government ... it 
 is perhaps the first instance where a constitution itself 
 has declared that a legislative enactment shall be su- 
 
THE LAWYERS AND THE COURTS 115 
 
 preme over all constitutional provisions, nevertheless this 
 is but a reversion to the English form of government, 
 which makes an act of Parliament the supreme law of 
 the land. ... So here the State of California has 
 decreed that in all matters touching public utilities the 
 voice of the legislature shall be the supreme law of the 
 land. This constitutional decree is, of course, binding 
 upon this court, and under it, it becomes the duty of this 
 court to lend its aid in giving effect to every power and 
 prerogative with which the legislature may vest or clothe 
 the railroad commission. This, however, is subject to 
 one all-important limitation. There is still the constitu- 
 tion of the United States.' 
 
 "Could there be a more complete wrecking of an 
 elaborate system of judicial procedure?" In answer I 
 suggested that probably the powers granted the railroad 
 commission were after all greater than were really in- 
 tended. But the Ass repHed: "The Supreme Court it- 
 self emphasizes the deliberation which the people and 
 the legislature exercised. And no one can read the law 
 itself without coming away with the impression that not 
 only was all this done deliberately, but with the definite 
 purpose of making the commission so powerful that no- 
 thing could stop it from accomplishing results. Appar- 
 ently careful attention was given to every device by 
 which the independence of the commission could be 
 strengthened. As the court itself pointed out, the com- 
 mission exercises all three functions of government; 
 it has legislative, administrative, and great judicial 
 powers." 
 
 I asked, "Why was there such a jumble of powers? 
 The very foundations of our state and federal govern- 
 ments rest on the principle that the three great divisions 
 
116 THE CASE OF THE PEOPLE AGAINST 
 
 of government shall not only be exercised separately, 
 by distinct departments and individuals, but that there 
 shall be a system of checks and balances, an interlocking 
 dependence of each on the others. It is hardly to be 
 wondered at that the Supreme Court of California spoke 
 with some energy when it discussed the utilities law." 
 
 The Ass gazed for a long time in the direction of 
 Emigrant Wash, as if he were expecting intellectual re- 
 inforcements, and then rephed: 'The purpose to give 
 these great powers to the commission could not have 
 been made plainer if it had been written down in words. 
 It was evidently done to destroy those very checks and 
 balances which have practically destroyed the efficiency 
 of the system. What has hitherto always happened when 
 an administrative board issued orders or rendered deci- 
 sions which a corporation did not want to obey? All 
 that was needed was an injunction. That was the first 
 step in a long and usually futile legal contest ; futile be- 
 cause it suspended the power of the board ; and even if 
 the board won the victory, that victory was often too late 
 to be of any value." 
 
 I said that I had once suggested fewer illustrations 
 and more general analysis, but now I wanted him to give 
 cases that would actually prove the superior worth of 
 the new California way. He appropriately chose the 
 case of the city of Palo Alto because it was the first mu- 
 nicipality to commit the control of its public utilities to 
 the hands of the state railroad commission. He said, 
 "The Palo Alto Gas Company bought its gas at whole- 
 sale from the big Pacific Gas and Electric Company, and 
 charged $1.50 a thousand feet. The outrageous price 
 was tolerated for several years, but after a while the city 
 council started an investigation with a view to fixing a 
 
THE LAWYERS AND THE COURTS 117 
 
 gas rate. Its efforts to secure information from the 
 company about the distribution of gas pipes, value of 
 plant and other items was truly pathetic ; but still 
 typical of what always happened in such cases. 
 The company turned the investigation into a farce; 
 but the council, after securing such facts as it could, 
 set the gas rate at $1.25. The company promptly 
 got a writ of injunction from the superior court and the 
 case promised to run the usual endless course. The rate 
 could easily be held up for a year, the company mean- 
 while collecting what it chose; at the end of the year the 
 rate would have to be fixed anew, and would be subject 
 to a fresh injunction. 
 
 "But the community adopted a brilliant course. 
 While the injunction was hanging fire in the court, the 
 town, by a vote of thirteen to one, decided to give over 
 the control of its pubHc utiUties to the railroad commis- 
 sion, filed a complaint about the price of gas and asked 
 for a hearing. It was as if some one had broken a plate 
 glass window. The commission ordered a hearing. It 
 came promptly and was held by a single commissioner. 
 All the evidence was promptly forthcoming. It was 
 serio-comic, the grace and kindness with which lawyers 
 and gas officials submitted to control. There were no 
 technical rules to interfere. In a remarkably short time 
 the one commissioner who conducted the investigation 
 had heard all the evidence that either side wanted to in- 
 troduce ; the commission's experts had made a thorough- 
 going independent investigation of the facts; the hear- 
 ing was adjourned to the city of San Francisco and the 
 big producing gas company had to submit to an investi- 
 gation which included the value of its plant; and there 
 was a prompt decision. The city council had been will- 
 
118 THE CASE OF THE PEOPLE AGAINST 
 
 ing to let the company collect $1.25 a thousand feet, but 
 the company blocked proceedings with an injunction. 
 The commission set the rate at only $1.20 and the rate 
 went into effect without any ado when the commission 
 said it should. Was not that whole performance a ju- 
 dicial curiosity? That, I fancy, was what the people of 
 California had in mind when they tied the hands of the 
 courts and gave the railroad commission practically un- 
 limited authority to deal out prompt, cheap and effective 
 justice." 
 
 I admitted that the case was a curiosity, and predict- 
 ed that in the long run there would be the usual and in- 
 evitable and justifiable delay and struggle. But the Ass 
 appealed to the record of the commission's work for 
 proof of his general contention and the wisdom of the 
 people. He said: 
 
 "In about two and a half years from the time it be- 
 gan its work the California Railroad Commission dealt 
 with more than 1500 formal cases and more than 
 3600 informal matters. Many of these cases were 
 of the most vital and far-reaching importance, involving 
 elaborate investigations of rates, unfair practices, dis- 
 criminatipn, the value of great public utilities and their 
 financial methods and needs. It has been fairly claimed 
 that the commission has saved each year to the people of 
 the state at least $6,000,000; and it has forced better 
 service, set higher standards, and done all this without 
 real injury to the corporations. In fact, by forcing the 
 water out of their securities it has done much to streng- 
 then their value as investments. 
 
 "It is easy to calculate the rate at which decisions 
 were made by the commission. After allowing for Sun- 
 days, holidays and legitimate vacations, it is generous to 
 
THE LAWYERS AND THE COURTS 119 
 
 say that the members of the commission could work ef- 
 fectively two hundred days in the year. Even the formal 
 cases alone would furnish an average of six hundred a 
 year, or three cases a day for five men to consider. This, 
 to my mind, is one of the most astounding results of the 
 disorderly pubUc utilities law." 
 
 "Such speed," I observed, "will ultimately lead to 
 premature decisions and confusion. The utilities law 
 may turn out to be the mother of tumult." But he re- 
 plied, "The effect of the enforcement of that law for less 
 than three years has been such that the people of Cali- 
 fornia regard their railroad commission as one of the 
 most powerful and beneficent institutions in the whole 
 nation. Its labors have not only rectified many specific 
 wrongs, but have created an atmosphere in which it is 
 no longer profitable for pubUc utilities to pursue unfair 
 practices. They are assured protection in all reasonable 
 activities and there is a lessening desire to exploit their 
 opportunities unfairly. After two years and a half, in a 
 political campaign of great bitterness, there was not a 
 political party, there was not a candidate, that dared to 
 suggest openly that the commission ought to be ham- 
 pered or hamstrung. And as if to set the seal of their 
 highest approval on the work of the commission, the 
 people of the state, in the general election of 1914, adopt- 
 ed two more constitutional amendments to extend and 
 strengthen the powers of the commission." 
 
 I offered the opinion that the plunging activity of the 
 commission would be steadied after a while by the de- 
 cisions of the state supreme court and the federal courts 
 in the cases that would be taken up on review. But he 
 was ready with a reply. 
 
 "Of the more than 1500 formal decisions and orders 
 
120 THE CASE OF THE PEOPLE AGAINST 
 
 issued by the commission in the first two and a half 
 years, only eight had been carried up to the supreme 
 court of the state for review. Six of these had been 
 acted upon. And there is nothing in the judicial history 
 of the state that so plainly exposes the obstructive rela- 
 tion of your courts of appeal to the actual wants of the 
 people and to the great drift of modern thought. The 
 first case to go before the supreme court was that of the 
 Pacific Telephone and Telegraph Company against 
 Eshleman (president of the railroad commission). The 
 local telephone companies of Glenn county and Tehama 
 county petitioned that the Pacific Telephone and Tele- 
 graph Company be compelled to let them connect their 
 systems with its long distance wires, so that their patrons 
 might have the benefit of long distance service. They 
 agreed to pay the cost of making the connections and 
 that they would pay a reasonable rate for the long dis- 
 tance service. 
 
 "The commission ordered that the connections be 
 made. The case was carried to the Supreme Court of 
 California on a writ of review, and the court held that 
 in effect the order amounted to a taking of property 
 without compensation, contrary to the rights guaranteed 
 by the state and federal constitutions. The order of the 
 commission was annulled, and as the law did not pro- 
 vide that the commission itself might appeal to the fed- 
 eral courts, the annulment was final. 
 
 "But the laborious reasoning of the state Supreme 
 Court ended where it began. The Supreme Court of the 
 United States had frequently upheld state railroad com- 
 missions in forcing railroads to make physical connec- 
 tions with each other ; but the California court held that 
 there was some difference between the telephone case 
 
THE LAWYERS AND THE COURTS 121 
 
 and the railroad cases. But its laborious attempt to 
 draw a distinction came to naught. In an Oregon case 
 before three federal judges, Wolverton writing the de- 
 cision, the same question came up in a case of the same 
 telephone company. The company relied on the Califor- 
 nia decision in its argument before the federal court, but 
 the federal court specifically rejected the view of the 
 California court and the telephone company lost its ap- 
 peal. The Supreme Court of Idaho likewise has refused 
 to adopt the view of the California court. Thus was the 
 very first decision of the CaHfornia Supreme Court re- 
 lating to the public utilities law discredited in both the 
 federal courts and the courts of other states. And as if 
 Fate itself had become malicious, on the very day that 
 the California court rendered its decision, the Bell Tele- 
 phone Company, the parent company of the Pacific Tele- 
 phone and Telegraph Company, agreed with the federal 
 government that it would make physical connections 
 with other telephone companies without any pay other 
 than its share of the tolls. 
 
 'Tn its effort to undo the work of the commission 
 the California court had only done what commonly hap- 
 pens in the tangles of judicial interpretation; it merely 
 blocked for a while a necessary, legitimate and inevitable 
 step in the development of public utility practice. This 
 time, at least, the decision of the court, so solemnly 
 worked out, was utterly ineffective because time, pro- 
 gress and business sense were all opposed to it. This epi- 
 sode of the court's first decision is especially interesting 
 because it enforces the doctrine that judicial service can 
 never effectively conserve the interests of the people un- 
 less it interprets the principles of government in the light 
 of present needs and future outlook." 
 
122 THE CASE OF THE PEOPLE AGAINST 
 
 XVI 
 Commission and Court: A Contrast 
 
 AFTER a short rest my friend the Ass went on: *'An 
 unbiased examination of the few decisions which 
 ^ the Supreme Court of CaHfornia has handed 
 down in the cases that have come before it under the 
 public utilities law might set not only the people but the 
 lawyers to thinking seriously about the true relation of 
 that court to actual conditions of life as they exist in 
 California. In the case that we have examined the judg- 
 ment of the railroad commission has been completely 
 justified by time and the courts of the nation, and the 
 judgment of the court has been utterly discredited. 
 But the court had done only what had been done thou- 
 sands of times before in the decisions of the appellate 
 courts. There was merely an over-nice anxiety to pre- 
 serve the letter of an ancient rule and a general disre- 
 gard of the changes that have already taken place in the 
 views of the people. The decision of the court is further 
 interesting in that it has turned out to be, in spite of its 
 labored solemnity, not a necessary judgment founded on 
 sound principles, but merely an opinion which has been 
 proved worthless both in theory and practice. 
 
 *Tn this case the great corporation used the courts 
 to thwart the will of the people, and the argument that 
 its property was being taken without due process of law 
 was proved false by the act of its own parent company. 
 It will be well to consider a railroad case that illustrates 
 this serious assertion. The Southern Pacific Railroad 
 
THE LAWYERS AND THE COURTS 123 
 
 charged a rate of $1.20 a ton on lumber for the twenty- 
 four mile haul from San Pedro to Los Angeles. A com- 
 plaint was filed with the railroad commission, which, 
 after a careful investigation, pronounced the rate un- 
 reasonable and fixed a new rate of $.80 a ton to become 
 effective on a certain Monday afternoon at three o'clock. 
 The commission was informed that the company would 
 file a contest. The railroad officials suggested that the 
 commission arrest the freight agent at San Pedro for 
 disobeying the order of the commission. The commis- 
 sion repHed that it was not arresting freight agents or 
 any other subordinates ; if the rate did not go into effect 
 at the time set, the president of the road would be ar- 
 rested and prosecuted. 
 
 "All the amenities of judicial contests between the 
 state and the big corporations had been forgotten. Here 
 was a coarse disregard of official dignity, precedent and 
 decency. But the new rate went into effect at the ap- 
 pointed time. All this, however, was only the prelimin- 
 ary playfulness of heat-lightning. Much of the lumber 
 came from Oregon and Washington ; thus there was in- 
 volved a question of interstate commerce, and the railroad 
 took a case into the federal courts, making oath that the 
 new rate was confiscatory. But the federal court was 
 not impressed and upheld the state railroad commission. 
 
 "But that was not the worst thing that could hap- 
 pen. Sometimes a skilful hunter misses his mark be- 
 cause a little gnat flies into his eye and spoils his aim. 
 The wagon road was good, and some private citizens 
 decided that they could compete with the railroad by 
 hauling lumber from the wharf directly to the jobs in 
 Los Angeles on automobile trucks. And so it befell that 
 very shortly after the railroad had filed its protest with 
 
124 THE CASE OF THE PEOPLE AGAINST 
 
 the commission and made its oath about confiscation in 
 the ear of the federal court, that same railroad company 
 appeared before the commission again, but this time 
 with a request for permission to reduce the rate still 
 further to $.60 a ton. Once more the stubborn commis- 
 sion refused to listen, and forbade the reduction on the 
 vulgar ground that lumber could not be hauled at that 
 rate without loss, and the commission would not give its 
 consent to the practice of hauling freight at a loss in one 
 place to crush competition, and then make up the loss 
 by excessive charges somewhere else. 
 
 ''In another case that went to the Supreme Court of 
 California on a writ of review the commission had for- 
 bidden the Oro Electric Company to exercise the fran- 
 chise which the city of Stockton had given it to build 
 and operate an electric light system in addition to the 
 one already furnishing light in the city. The commis- 
 sion did this on the ground that it was against pubUc pol- 
 icy to let a light company invade territory already pro- 
 vided, because in the end the taxpayers are the ones who 
 have to bear the burden of such duplicate systems. Prac- 
 tically every city in the nation has at some time or other 
 been sweated by some corporation in its effort to get 
 back the money it spent in buying out some rival, whose 
 coming into the game at all was probably little more 
 than gigantic blackmail. But the order of the commis- 
 sion was annulled on the ground that under the law the 
 city retained control of its utilities in every respect un- 
 til it voted control into the hands of the commission. 
 The commission asked a re-hearing and proved that the 
 Stockton charter, on the powers of which Judge Shaw 
 relied when he annulled the order of the commission, 
 had not gone into effect when the commission made its 
 
THE LAWYERS AND THE COURTS 125 
 
 order. The court thereupon vacated its own order of 
 annuUment. 
 
 "The commission had ordered a water company to 
 lay pipe and furnish water to an outlying resident of 
 Del Mar. The company carried the case up for review, 
 claiming that it was not a public utility. Two judges 
 of the Supreme Court handed down an opinion that the 
 company was not a public utility, and four other judges 
 hinted that the company was not a public utility but held 
 that in any case the company was not under any obliga- 
 tion to serve the territory in question. The conditions 
 under which this company operated were typical of more 
 than half of the water companies in the state, and this 
 annullment would have removed all of them from the 
 jurisdiction of the commission. The commission asked 
 for a re-hearing, and this time the court ruled that the 
 original opinion that the company was not a public util- 
 ity could not be used as a precedent, but again annulled 
 this particular order because the commission itself had 
 not proved that the company's water was dedicated to 
 this particular territory. 
 
 "The two water companies of Glendale charged $15 
 for the installation of meters and service connections. 
 The commission gave a decision that the companies 
 must make the installations at their own expense, but 
 with the understanding that consumers must pay such 
 rates as would cover the investment. The companies 
 appealed and the Supreme Court again annulled the 
 order of the commission. It held that the order was 
 reasonable, but that it should have been enforced by 
 Glendale itself, because the order was not a service reg- 
 ulation but incidental to the fixing of rates. Justice 
 Shaw, who wrote the decision, held that sec. 11, art. xi, 
 
126 THE CASE OF THE PEOPLE AGAINST 
 
 of the state constitution, conferring upon municipalities 
 the power to enact police regulations, gave to the cities 
 and towns of the state the state's entire power to super- 
 vise and regulate public utilities within their limits, in- 
 cluding not merely power over rates but also service, ex- 
 tensions, finances, and the issue of securities. The rul- 
 ing was unnecessary to the decision in the case, and is 
 for that reason all the more significant. For the effect 
 of it was to oust the railroad commission completely of 
 any jurisdiction whatever within any incorporated city 
 or town in the state. 
 
 "The commission asked for a re-hearing and showed 
 that the ruling was contrary to the views of legal writers 
 of authority, contrary to a unanimous line of decisions 
 in other states, and that such an interpretation of that 
 particular section of the constitution turned many other 
 constitutional, statutory and charter provisions into sur- 
 plusage, in violation of a fundamental principle of ju- 
 risprudence. The court denied the commission a re- 
 hearing, but at the same time struck out of its former 
 opinion all that part relating to its construction of sec. 
 II, art. xi, of the constitution. 
 
 "Some property owners in Otay Valley asked the 
 commission to compel the city of San Diego, as the suc- 
 cessor of a private water company, to furnish them with 
 water for their land. The commission denied the re- 
 quest on the general ground that the city and other ac- 
 tual consumers needed all the water that could be sup- 
 plied, and under those conditions it would not require 
 that additional consumers should be added. The com- 
 mission was upheld by the Supreme Court. 
 
 "On complaint the commission undertook to regulate 
 the passenger rates by water between San Pedro and 
 
THE LAWYERS AND THE COURTS 127 
 
 Avalon on Catalina Island. The Wilmington Trans- 
 portation Company carried the case to the Supreme 
 Court and argued that although both places were in Los 
 Angeles county and the boats did not stop anywhere on 
 the way, they were engaged in foreign commerce while 
 passing over the twenty-one miles of intervening open 
 sea, and that therefore Congress alone had jurisdiction 
 over them. They had a judicial argument to support 
 their position. Justice Fields, of California, then a mem- 
 ber of the Supreme Court of the United States, and sit- 
 ting in 1883 as presiding justice of the federal Circuit 
 Court for the district of CaUfornia, held that vessels of 
 the Pacific Coast Steamship Company, because they went 
 outside of the three-mile limit between the ports of San 
 Francisco and Los Angeles, were under the exclusive 
 jurisdiction of the federal government. The state Su- 
 preme Court upheld the order of the commission, and 
 the case was appealed to the United States Su- 
 preme Court. Early in 191 5 the United States Supreme 
 Court rendered a decision sustaining the state railroad 
 commission. 
 
 "Thus the state Supreme Court had acted on six 
 cases that were taken up for the purpose of overthrow- 
 ing the orders and decisions of the commission. In the 
 telephone case the federal court and the courts of other 
 states have repudiated the opinion of the California 
 court, and the telephone authorities themselves have 
 agreed with the federal government to do the thing that 
 the commission had ordered them to do in California. 
 The general doctrine which the commission sought to 
 make effective has triumphed. In the Del Mar water 
 case the court practically ousted the commission from 
 jurisdiction over most of the water companies of the 
 
128 THE CASE OF THE PEOPLE AGAINST 
 
 state, and then repudiated its own doctrine. In the Oro 
 Electric-Stockton case and the Glendale case the court 
 went to great lengths to cut off entirely the jurisdic- 
 tion of the commission within corporate Hmits, and then 
 withdrew its own doctrine in both cases. 
 
 "The net result to date of the Supreme Court's exer- 
 cise of jurisdiction over the railroad commission is that 
 in the little town of Glendale, the town itself instead of 
 the commission should enforce a rule which the com- 
 mission laid down and which the court itself admits is 
 reasonable; and that in the little town of Del Mar the 
 man who wanted water connections lived too far out to 
 make his desire enforceable. Did the mountain labor 
 and bring forth a ridiculous mouse? The railroad com- 
 mission has yet to meet its first definite defeat on any of 
 the very important propositions and rules for the con- 
 duct of public utilities that it has promulgated. Its for- 
 ward-looking doctrines have been endorsed by the fed- 
 eral courts and other state courts, by the best legal opin- 
 ion, by the California court itself, by one of the great 
 corporations that contested a case, and by Father Time 
 himself. As if there were no depth of judicial humilia- 
 tion from which the Supreme Court of the state should 
 be exempt, the people of California have now adopted 
 another constitutional amendment which gives the com- 
 mission the same jurisdiction over public utilities with- 
 in incorporated cities and towns that it already had else- 
 where in the state, and thus removes the last question of 
 the commission's authority. In this prolonged contest, 
 with precedent, history, and the powers of a great judi- 
 cial system against it, the commission has brought out 
 more sharply than has ever been done before in the his- 
 tory of the state the fact that the courts are not serving 
 the future and that the commission is. The commission 
 
THE LAWYERS AND THE COURTS 129 
 
 has made fewer errors than the Supreme Court. The 
 latter repudiated in full or in part its own opinions in 
 three out of the six cases. 
 
 "The people of California were not in a ruthless 
 mood when they revolutionized the whole method of 
 dealing with the utilities, the most law-defying elements 
 in the state. The courts had proved themselves utterly 
 'incompetent' ; the people went the rest of the way and 
 made them 'irrelevant and immaterial.' The constitu- 
 tional amendments and the utility law have broken down 
 constitutional guarantees, shattered the powers of the 
 courts, wiped out the rules of evidence, and removed the 
 boundaries of trial by jury. They spared nothing. And 
 it was all done so deliberately that no one in California 
 is recorded to have lost a night's sleep over the changes. 
 There has even been a kind of hallelujah spirit, like that 
 of a man who sings 'Once I was blind, but now I can 
 see'; a political fervor born of oppression and release. 
 
 "These radical changes of procedure were made be- 
 cause there was a present and desperate need. For 
 more than a generation the state had been dominated by 
 the corporations and the courts had been their hand- 
 maids. No amount of eloquence or historical prece- 
 dents or political and judicial philosophy can carry as 
 much conviction as the former and the present condi- 
 tion of affairs in the relations between the people and 
 the pubUc utilities. All the radical innovations of prin- 
 ciple and procedure were intended to secure directness, 
 speed and efficiency; and the results have justified the 
 course pursued. The change in this field of the people's 
 interests only makes more vivid the conditions of delay, 
 cost, uncertainty and exasperation that accompany the 
 old judicial forms of thought and procedure." 
 
1'30 THE CASE OF THE PEOPLE AGAINST 
 
 XVII 
 Virile Commissions and Impotent Courts 
 
 ' ¥ s IT NOT likely," I asked, "that this California ex- 
 I periment, so unique, so out of line with the normal 
 ■■• course of public thought in the nation, will in the 
 end be smothered under the pressure of general opinion ; 
 the more so when the people of the state have had time 
 to realize what has happened to their governmental 
 forms?" The Burro replied, *'It is too late in the day to 
 call the performance unique. The state has merely per- 
 fected a thought that has found expression in a variety 
 of ways in many of the states of the Union, and even in 
 the federal government. A few years ago Congress es- 
 tablished a Commerce Court to sit in watchful soHcitude 
 and pass upon the doings of the Interstate Commerce 
 Commission. A short experience with the court and its 
 backward-looking performances cured the nation of the 
 desire for such a court and it was summarily abolished. 
 Many of the states have laws similar to those of CaHfor- 
 nia. The movement has gathered such momentum that 
 there can never be a reversion to the old way of leaving 
 the settlement of problems affecting the whole public to 
 the inefficient methods of the old judicial procedure. 
 
 "CaUfornia herself has done other things involving 
 the same revolutionary notions. The public utilities law 
 deals only with corporations and persons which, by vir- 
 tue of their services, have a general public interest. All 
 questions affecting their relations to the people have 
 been practically removed from the jurisdiction of the 
 
THE LAWYERS AND THE COURTS 131 
 
 courts in the interest of prompt and certain results, on 
 the theory that justice, to be of any value, must be 
 prompt, for meanwhile the victims die. But the image- 
 breaking process has been applied, both in California and 
 in other states, to the relations between private individ- 
 uals and between individuals and corporations. 
 
 "The California Workmen's Compensation Act takes 
 another large class of cases out of the jurisdiction of 
 the courts and places them under the control of a com- 
 mission of common men. Before its day there were 
 cases of the death of workmen in which the employer 
 was clearly responsible. The widow brought suit for 
 damages while her children were little, and those same 
 children were grown up and able to support themselves 
 before the mother finally got what she was entitled to 
 through the courts. Under the old system the injured 
 and their dependents got nothing but the husks, they had 
 to feed on theory ; and if they recovered anything, a large 
 part of it went as attorney's fees. On the other hand, 
 employers were harassed by the most cruel uncertainty. 
 When the doctrine of compensation first began to be en- 
 forced in California one of the great corporations of the 
 country voluntarily placed itself under the jurisdiction 
 of the law. It had been incessantly harassed by black- 
 mailing lawyers who worked up damage cases; and 
 when it insured itself against damage suits in indemnity 
 companies, those companies made a practice, when there 
 was a case of injury, of fighting the claim in the courts 
 instead of paying it. The net result was a feeling of 
 chronic bitterness among its employes. Under the new 
 law, with the courts and their methods eHminated, the 
 employes have been certain of compensation, the com- 
 pany has known what to provide against, and both it and 
 
132 THE CASE OF THE PEOPLE AGAINST 
 
 its employes have known that the money would not ul- 
 timately pass into the hands of the lawyers. 
 
 'The Compensation Act authorizes the commission 
 to ignore judicial practice both as to procedure and evi- 
 dence ; and by a set of rules concerning character of in- 
 jury and for fixing compensation, leaves the commission 
 to ascertain the facts in its own way. Damage suits are 
 eliminated, and certainty of compensation takes the 
 place of suffering and bitterness or interminable law 
 suits with the injured always at a fighting disadvantage. 
 The commission acts as judge and jury under the ma- 
 jority rule. As if to add insult to the ousting of the 
 courts from jurisdiction over this whole class of cases, 
 the act declares invalid any lawyer's claim or agreement 
 for legal services in excess of a reasonable amount ; and 
 then leaves it to the commission to decide what is a rea- 
 sonable attorney's fee for legal service to an injured 
 party. 
 
 *Tt seems like an uneasy dream, but this is how the 
 commission exercises its authority. An injured employe 
 entered into a contract agreement with a lawyer to give 
 him twenty per cent of whatever compensation he might 
 receive. The commission refused to recognize the con- 
 tract, as the law provides it may do, and declared it in- 
 valid. It allowed the lawyer twenty dollars for his ser- 
 vices, declared that sum a liberal allowance, and an- 
 nounced its intention to allow only ten or even five dol- 
 lars. So simple are the formalities by which an employe 
 may secure compensation that the commission has de- 
 clared that there is no necessity for a lawyer at all to 
 bring a case before it ; and that it will itself recommend 
 the employment of one when that is desirable for the 
 consideration of points of law. Is it any wonder that 
 out of far Nebraska came the report that when in 1914 
 
THE LAWYERS AND THE COURTS 133 
 
 the state sought to pass a constitutional amendment pro- 
 viding workmen's compensation, lawyers organized op- 
 position to it because it would destroy a source of their 
 income? See Acts 19, 24-28. 
 
 " Tor a certain man named Demetrius, a silversmith, 
 which made silver shrines for Diana, brought no small 
 gain to the craftsmen ; whom he called together with the 
 workmen of like occupation, and said, Sirs, ye know 
 that by this craft we have our wealth. Moreover ye see 
 and hear, that not alone in Ephesus, but almost through- 
 out all Asia, this Paul hath persuaded and turned away 
 much people, saying that they be no gods, which are 
 made with hands: So that not only this our craft is in 
 danger to be set at naught; but also that the temple of 
 the great goddess Diana should be despised, and her 
 magnificence should be destroyed, whom all Asia and 
 the world worshippeth. And when they heard these say- 
 ings, they were full of wrath, and cried out, saying, 
 Great is Diana of the Ephesians.' " 
 
 "But," said I, "the classes of cases that have been 
 taken away from the courts and placed in the hands of 
 commissions with plenary powers can be clearly defined. 
 The utilities exercise functions in which all the people 
 are interested. The industrial accidents also constitute a 
 fairly distinct group, and doubtless the reason they are 
 specially provided for is a social reason: sympathy to- 
 ward the helpless and a desire to lend the strength of the 
 community to the weakest. But these reasons cannot be 
 fairly applied to judicial problems in general, even if it 
 were possible to throw all cases into special groups and 
 provide special arrangements for dealing with them." 
 
 My friend the Ass replied : "Is there any moral, so- 
 cial, political or financial reason why the same facilities 
 of speed, economy and certainty that have been so bril- 
 
134 THE CASE OF THE PEOPLE AGAINST 
 
 liantly applied to public utilities and industrial accidents 
 should not be applied to all other judicial problems? 
 Now that an eminently satisfactory solution has been 
 found for two classes of cases, does not the responsibil- 
 ity rest on the community to bring the same measure of 
 relief to the average citizen in civil cases and to the com- 
 munity as a whole in criminal cases? 
 
 "Judicial procedure and the courts as they stand now 
 are damned by their own records. Time cuts no figure 
 in the courts. It is almost a criminal waste of energy to 
 make an exhibit of the time it takes to get cases through 
 the courts, but here is a summary for two volumes of Su- 
 preme Court Reports before the Appellate courts were 
 established and for two volumes after they were estab- 
 lished. Before the Appellate courts were organized it 
 took from seven to nine months in the superior courts 
 throughout the state to get a case to trial after the com- 
 plaint was filed ; from a year and four months to two 
 years and two months to get a judgment in the superior 
 court; and from three years and seven months to 
 five years and six months from the filing of complaint 
 in the superior court to final decision in the state Su- 
 preme Court. These cases remained in the Supreme 
 Court itself from about a year and a half to nearly three 
 years. It should be said that the data are taken from 
 the reports of the Commonwealth Club of San Francisco, 
 and that the extremes represent, not individual cases but 
 groups of cases from San Francisco, Los Angeles and 
 Alameda counties separately and from all the other 
 counties in a single group. And the cases dealt with are 
 only those that were sent up on appeal from the superior 
 courts. 
 
 "After the Appellate courts were organized it took 
 
THE LAWYERS AND THE COURTS 135 
 
 from three years and five months to nearly six years 
 from the fiHng of the complaint to the final decision in 
 the Supreme Court. These cases remained in the Su- 
 preme Court itself from a year and a half to a year and 
 nine months. The groups of cases dealt with naturally 
 are the more important and hard- fought cases. 
 
 "Time cuts no figure in the courts, but in human life 
 it is the great variable on which the sum of results al- 
 most entirely depends. As for cost — ^the cost of crim- 
 inal cases to the community itself is nothing short of 
 criminal, and in civil cases it is so serious that not infre- 
 quently, according to the testimony of Judge Wanama- 
 ker of the Ohio Supreme Court, it is greater than the 
 amounts involved in the suits. And as for the interests 
 of the litigants, the following remark should become a 
 classic : 'Pardon me for mentioning the litigants. All 
 procedure eliminates consideration of the litigants, but 
 sometimes we have to think of them.' 
 
 *'You expressed a doubt that any general measures of 
 relief could be applied. Some insist that the elective 
 judges are incompetent; that they are chosen upon 
 every consideration except fitness. It is true that many 
 judges are selected when better men are available, be- 
 cause they happen to be familiar with the trails to all sa- 
 loons, or because they are socially active and keep them- 
 selves prominently before the people by devices that 
 would be scorned by the best lawyers. Experience in 
 England and this country proves beyond question that 
 judges appointed by the proper authorities to serve dur- 
 ing good behavior, thus relieving them of the necessity 
 to do politics either to get the appointment or to keep 
 the office afterwards, are far better judges than those 
 who are elected. But the experience of England also 
 
136 THE CASE OF THE PEOPLE AGAINST 
 
 shows that the method of selecting the judges does not 
 reach the root of the evil. 
 
 "There was a time when the English courts were as 
 bad as the American courts are now. Their methods 
 were ineffective, slow, expensive and uncertain. But the 
 judges were appointed then as they are now. There is 
 no material difference between the laws of the two coun- 
 tries ; the courts of the two nations deal with practically 
 the same material. But in the fateful year of 1873 the 
 English completed the radical changes in their court pro- 
 cedure. The English judge is the master of his court. 
 A competent American observer of the English courts 
 has recorded the fact that 'the most important action can 
 be tried, judgment given, appeal taken, argued and oral- 
 ly decided as counsel sit down, all in ninety days.' It is 
 cruelty to compare this with the three and a half to six 
 years which a case has to spend in the courts of Cali- 
 fornia. The bare statement of the fact makes it ludi- 
 crous and incredible. But another phase of the matter 
 is still more astonishing. In England, where no new 
 trials are granted on technical grounds at all, 'the court 
 of appeals, acting for 32,000,000 people, grants only 
 about twelve new trials a year. In contrast to this, in 
 one county alone in the United States, with a population 
 of less than 100,000, there were thirty-eight appeals in 
 one year, of which seventeen were reversed for technical 
 errors.' 
 
 'Tt is interesting to compare the delicate, tentative 
 efforts that have been made to secure simplicity, speed 
 and certainty in the courts, with the violent and bone- 
 crushing methods involved in the public utilities law of 
 California. Amendments to the state constitution have 
 been adopted in recent years providing that a verdict 
 
THE LAWYERS AND THE COURTS 137 
 
 may be reached by three-fourths of the jury in civil 
 cases ; and that in both civil and criminal cases a court 
 of appeal shall not set a judgment aside or grant a new 
 trial on account of misdirection of the jury or violation 
 of the rules of evidence or for errors as to pleadings or 
 procedure unless after examining the whole record, the 
 court shall find that there has been a miscarriage of jus- 
 tice. But these are only straws; they have greatly im- 
 proved the morals of the situation, but do not touch the 
 root of the issue. 
 
 *'At present the judge cannot exercise any important 
 influence in the selection of the jury; even the instruc- 
 tions he gives to the jury are largely muddled by the 
 partisan demands of the opposing sides, until as has been 
 often said, even a jury of lawyers could not themselves 
 understand the instructions. The judge, the only im- 
 partial expert in the court, can not analyze the evidence 
 or point out its bearings and help the jury to understand 
 it ; but the very worst and most incompetent shyster that 
 can get into court with a case has the privilege of ad- 
 vising the jury and befuddling the evidence. 
 
 "The people themselves have already put into action 
 the principles upon which the changes will be based. 
 All that is now left to do is to remove the inconsistency 
 of doing business in an incompetent way in one part of 
 the field and effectively in the rest of the field. Not a 
 single new or untried rule of action need be introduced 
 in the courts of California to accomplish the revolution. 
 Would the powers given to the railroad commissioners 
 be any more dangerous in the hands of experienced 
 judges? 
 
 "Imagine the change that would come over the 
 dreams of lawyers and litigants if a judge could control 
 the presentation of evidence, calling out every fact that 
 
138 
 
 THE CASE OF THE PEOPLE AGAINST 
 
 may have a bearing on the issue and making the tech- 
 nical rules subordinate to efficiency; if he could force 
 each side to lay its proofs on the table instead of allow- 
 ing the lawyers to higgle and spar and play for position ; 
 if Hke a railroad commissioner he could even make an 
 independent investigation of the facts without consider- 
 ing the partisanship of either Htigant; if he had real 
 power to exercise in the selection of a jury; if when the 
 evidence is in, and he gives instructions to the jury, he 
 could do the thing that every right-minded juror would 
 appreciate greatly — make an analysis of the evidence^ 
 point out the bearings of the law on each phase of it, 
 point out the indications of untrustworthiness ; and then 
 tell the jury the final decision rests with them. Most of 
 the trouble in the jury rooms is made by men who have 
 no really defensible positions of their own, but resent 
 as partisanship and unfair pressure the efforts of the 
 others ; and would consider gravely the explanations of 
 an impartial expert. What to them seemed an all- 
 important matter would be relegated as a mere detail,, 
 and they could readily join their associates in a verdict 
 without any loss of self-respect. 
 
 "If complete power to deal with facts and the details 
 of procedure were placed in the hands of the trial judge 
 as has already been done to such great advantage in the 
 case of the railroad commissioners, and appeals were 
 strictly limited, the hounding and snarling and petty con- 
 duct of the trial courts would disappear, as it has done 
 in the public utility business. Instead of incessant at- 
 tempts to trip and trick the court, respect for the power 
 of the court would work in the direction of solid results. "^ 
 
 The Burro rested from his labors and I dropped into 
 the cafion to get a drink at the nearest little spring. 
 
THE LAWYERS AND THE COURTS -139 
 
 XVIII 
 The Power of the Judge 
 
 WHEN I returned I said, "The same Judge Wana- 
 maker whom you have quoted in other things 
 charges a large part of the inefficiency of the 
 courts against the trial judges instead of the lawyers, 
 because they do not exercise all the powers which the 
 laws and rules of procedure already give them." 
 
 He answered me with a question, "What would hap- 
 pen if a judge undertook to make himself master of his 
 own court? In the atmosphere of uncertainty produced 
 by the elaborate system of appeals, when a judge can- 
 not be sure that any step he takes will not be used against 
 him, when he is watched by both sides for such open- 
 ings, when he has no ultimate authority whatever con- 
 cerning either the law or the facts, and he is constantly 
 open to attack, where will the power of control rest? 
 With the lawyers who make the trouble. Just where the 
 power is needed, where the facts, the witnesses, the liti- 
 gants and the lawyers are handled, there the constant 
 pressure of latent threat has taken away initiative, which 
 always rests on mastery. 
 
 "You failed to touch the most interesting of the Ohio 
 judge's suggestions. He declared that there are alto- 
 gether too many trials ; and that is woefully true. Just 
 now the American people are more interested in trying 
 to humanize justice than in perfecting their court ma- 
 chinery. In various parts of the country juvenile courts, 
 courts of domestic relations and so on have been estab- 
 
140 THE CASE OF THE PEOPLE AGAINST 
 
 lished to deal with special classes of cases, and at the 
 root of all these efforts lies the desire to ignore, to a 
 greater or less extent, the old legal machinery, and give 
 great power to the judge to deal out a mixture of jus- 
 tice, mercy, good sense and advice. The doctrine of pro- 
 bation before death has been set up. After the machin- 
 ery of justice has rattled its utmost, the judge is given 
 power to turn the victim loose on trial. He takes a 
 promise instead of inflicting punishment; it is coming 
 to be more clearly reaHzed, but as yet only in isolated 
 spots, that hand-made justice has a better quaUty than 
 anything made by complex machinery. 
 
 "At the root of every lawsuit there Hes hatred, or 
 spite, or stubbornnesss, or selfishness or misunderstand- 
 ing — all of them soluble in the aqua regia of common 
 sense and sympathy. If the trial judge were master of 
 his position a good many of the cases that come before 
 him need never come to trial at all. As matters stand 
 any preliminary attempt on his part to bring the parties 
 together would endanger his position; he might dis- 
 quahfy himself to preside at the trial. With real con- 
 trol, his moral authority would in many instances bring 
 the parties to a mutual understanding before the trial 
 starts. That would be justice, with the great additional 
 satisfaction that comes of the consent of both parties. 
 And no man can measure the full meaning of such tri- 
 umphs of the spirit in the cultivation of better human 
 relations. 
 
 "At present people are at liberty to litter the courts 
 with spitework and trickery by means of suits which 
 they have no serious intention to press. Practically all 
 suits of that nature could be eliminated entirely if the 
 plaintiffs were forced to go into court when the suit is 
 
THE LAWYERS AND THE COURTS 141 
 
 filed. The innocent parties are made to suffer so serious- 
 ly that the result is for them a practical denial of justice. 
 Not only the judge whom you quoted but many of the 
 ablest men in the legal profession believe that in many 
 cases the judge or jury should be allowed by the law to 
 add to the judgment a reasonable sum for attorney's 
 fees. This would not only put at least a reasonable share 
 of the punishment on the party responsible for the trou- 
 ble, but what is far more important, would be a power- 
 ful deterrent to those itching with a desire to make 
 trouble. 
 
 "After a case has been tried with all formality by a 
 judge and jury, with the help of the litigants and their 
 attorneys, and judgment has been handed down, why 
 should either party to the suit be allowed to decide for 
 himself whether the case shall be appealed? Here is a 
 simple example, typical of thousands. A hard fought 
 case for the payment of machinery occupied the court 
 for fifteen days ; both sides presented every shred of 
 evidence available; the judge was extremely careful of 
 the rights of both parties ; the jury took unusual interest 
 in the case, and at the end, after twenty-two hours of 
 careful study of the evidence, brought in a verdict of 
 about $10,000 for the plaintiff. The judge privately ex- 
 pressed the opinion that it was a just verdict. The attor- 
 ney for the defendants was an able lawyer of long ex- 
 perience, and when the case was lost he refused to carry 
 it to the higher court on appeal. But the defendants 
 stubbornly employed another lawyer and carried the case 
 up. A year after judgment in the trial court it had not 
 even reached a hearing in the appellate court. Why 
 should any lawyer working for a fee be allowed to de- 
 cide the question of appeal at all after it has been heard 
 
142 THE CASE OF THE PEOPLE AGAINST 
 
 and determined in a superior court, any more than he 
 could do it from the decision of a railroad commission- 
 er? If appeals were no longer allowed at all on ques- 
 tions of fact and procedure, as is the case already in mat- 
 ters under the jurisdiction of the railroad commission, 
 or were confined mostly to questions of law, why should 
 not the right to send the case up be entrusted to the trial 
 judge himself for his own information on points of law, 
 or a litigant be compelled to go before the upper court 
 and make a showing so that the case may be ordered up 
 under a writ, as is now the practice in public utility 
 cases ? 
 
 "Backward-looking men have raised a political out- 
 cry against the multiplication of commissions. But these 
 are devices for getting necessary work accompUshed. 
 When the courts, with their highly trained experts, are 
 given the power already given to men who never even 
 sat on a judicial bench, the great problem of the Ameri- 
 can courts will be solved. In a court with real power, 
 the trickery and cunning of the immoral lawyer will be 
 at a discount. Strong and capable men will seek instead 
 of avoiding judgeships. Shysters cannot live in an in- 
 tellectual atmosphere of that kind. Fewer lawyers, and 
 those the ablest ones, would be called upon to do the 
 heavy work in the trial courts. With the quickening sen- 
 sitiveness of social justice the judicial system looms up 
 more clearly than ever as a spiritless machine, that 
 moves and creaks along on rusty rails toward the places 
 of the dead, whence living men have long since departed. 
 The need of a final decision before the exhaustion or 
 death of the litigants is the driving throught. Watch 
 curiously henceforth and see how the power and spirit 
 of the pubHc utilities law of CaUfornia will affect the 
 
THE LAWYERS AND THE COURTS 143 
 
 people's purpose concerning their courts. Every doc- 
 trine needed is already embodied there." 
 
 "The words of the Desert Ass are ended." 
 
 The Talking Jackass came closer to me and rubbed 
 his nose against my shoulder, the sign of both friendship 
 and farewell. He turned his face up hill and slowly 
 climbed the mountain, as if all time were his. I went 
 down along the ridge, but did what we all do when a 
 friend is going on a long journey. I stopped and looked 
 back once more; he showed no sign that he had ever 
 known me. I stayed a long while where I was, and he 
 went farther and farther up. At sundown I saw him 
 far up on Pinto Peak ; and it seemed as if he were about 
 to disappear in the great band of pale, softly glowing 
 pink of the mountain wall behind him. As the level sun- 
 beams swung up the mountain, touching its hard sides 
 with infinite softness, I strained my eyes to keep him in 
 sight. His outline slowly grew faint and fainter. He 
 never moved, and a doubt came whether I saw him still, 
 or was it only the persistence of his form in my tired 
 eyes? There could be no doubt; he was gone. The 
 mountain turned cold and gray. I went down to the 
 water, and crawled into my sleeping-bag; but gazed 
 long at the stars and wondered at the way in which hu- 
 man institutions change, while the instinctive human 
 wants remain so much the same. 
 
UNIVERSITY OF CALIFORNIA LIBRARY 
 BERKELEY 
 
 Return to desk from which borrowed. 
 This book is DUE on the last date stamped below. 
 
 \50ec'493G 
 
 m 
 
 JAN 9 1952 
 7Jan'52LI! 
 
 LD 21-100to-9,'47(A5702s16) 
 
 REC'O ' r> 
 APR 27 mi 
 
YB 08352 
 
 
 THE UNIVERSITY OF CALIFORNIA UBRARY