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the former no less than the latter. And right here it is well to remember that law, and that includes justice, is effective and potent only as it is applied to the affairs of men; and that, as stated, our profession, is justly judged not by its accumulated knowledge of legal principles but by the result of its practical applications of those principles in the course of its appointed service. Every true lawyer is, therefore, interested in the record which his profession is making as the minister of justice, and anxious that only those who are fully equipped to properly serve in this ministry shall be given its high responsibilities.

The functions of the bar are no less important than those of the bench. It is the practitioner who conceives and advises litigation. It is he who gives it shape, who determines its character, who controls its issues, who conducts it through the courts and makes up the precise question which the bench is ultimately to decide. Upon him rests the duty of preparing the pleadings, of conducting the examination of witnesses, of supervising the making up of the record, of perfecting the appeal and securing a just hearing and determination of the issues by the court of final resort. If the practitioner fails in his judgment as to the proper action to be taken in any stage of the proceedings, the course of litigation is tliereby embarrassed and complicated, the rights of parties are jeopardized, and often actually impaired and lost. The courts are thereby mistrusted, and the profession derided as incompetent to do the service which it claims as its especial prerogative. In other words, it is the practitioner and not the judge who is most largely responsible for the actual results of litigation. If men fail to secure their rights through an appeal to the courts it is principally because the lawyers who are intrusted with the conduct of the litigation fail to present properly these rights to the judicial tribunals, and this failure arises from the lack of a proper understanding of the rules of legal procedure.

It is a deplorable fact, of too general cognizance to require more than a statement thereof in this presence, that year by year the failure of remedial justice to meet the needs of the people becomes more and more conspicuous and disheartening. We know that to a very considerable extent the causes of this failure lie in the imperfect methods of legal procedure prescribod by the legislatures; but I repeat with emphasis born of convincing results of an investigation into the forensic practice of our profession which went deeper than that which it was my privilege to report to you last year, that, as compared with the incompetency of the profession as a whole, upon matters of legal procedure and practice, the just objections to the systems themselves are of minor influence.

It will be recalled that an examination of all the cases reported for the year covered by the General Digest of 1894 resulted in ascertaining that over 48 per cent of the points which were therein submitted to, and determined by, the courts of appellate jurisdiction in this country were upon questions of pleading and practice, in no sense involving the actual merits of the controversies. And it was strongly urged that this great proportion of such questions was monstrously disproportionate to the true province of legal procedure, and was a reproach to our profession, through whose ignorance or indolence, it was insisted, this fact was made possible.

I was desirous of learning how far questions of legal procedure were actually determinative of litigations, deeming that such information would enable us to form an accurate judgment as to the real quality of the work of the bar in the trial of

For this purpose I have examined the cases reported for the year June 1, 1894, to May 31, 1895, with the following results: Total number of cases examined, 26,416. Of these, 1,052 were originally begun in the courts reported, leaving 15,364 which were heard on error or appeal.of these 15,364 cases submitted to the appellate jurisdiction of these courts, 9,523 were affirmed and 5,841, or a little over 38 per cent, were reversed. Of these reversed cases 2,302, or almost 38 per cent, were reversed upon questions of procedure. In other words, of the reversed cases 38 out of every 100 so resulted because of the incapacity of the attorney in charge to properly present the merits of his cause for judicial determination. "In 38 out of every 100 such instances, then, justice was either denied the litigant or to gain his rights he had to submit to the anxiety, delay, and expense inevitable in a new trial or in instituting a new action. And this because the certified member of the bar to whom he intrusted his cause did not know how to practice law.

Is it any wonder that men will hesitate and even refuse to submit their differences and their property interests to the precarious care of the average practitioner of the day when the records of our highest courts show that in 38 out of every 100 instances of reversal the cause is absolutely shipwrecked because of the mismanagement or stupidity of the licensed piloti Men know these facts, if not these figures; and it is because the experience of the people for the last twenty or thirty years has proven to them the degeneracy of the bar, as the efficient servant of justice, that the masses so often regard a surrender of their rights as preferable to an attempt to secure their enforcement by a recourse to litigation.



[By Justice David J. Brewer, of the United States Supreme Court.]

The lawyer is evermore the leader in society; and by society I do not mean that little coterie which lives simply to dine and wine, but that larger association of all individuals whose mingled labors have achieved the present and will work out the futuro of human life and destiny. In society, in this better sense of the term, the lawyer is the leader.

Temporarily, it is true, he may be displaced by the soldier. In the abnormal and chaotic movements which accompany revolution and war the lawyer is ignored. Inter arma leges silent. The man on horseback becomes the leader, and around his life there is a pyrotechnic splendor which has lifted him into undue prominence, and made him too frequently the central figure in written history. But his leadership is always temporary, and conditioned upon some disarrangement of the normal condition of human society. When life is moving on in peaceful and regular lines the soldier drops to his appropriate place, as simply the representative of force-the one ready to help the lawyer as the true leader in all efforts which make for the bettering of human life and the coming in of a higher civilization.

So, in the early days of New England, the minister, for a while, superseded hiin. Legislation denounced him, and society under its theocratic leadership endeavored to forbid his presence and exclude him from recognition. Washburn, in his Judicial History of Massachusetts, says:

“It was many years after the settlement of the colony before anything like a distinct class of attorneys at law was known. And it is doubtful if there were any regularly educated attorneys who practiced in the conrts of the colouy during its existence. Lechford, it is true, was here for a few years, but he was soon silenced, and left the country. Several of tho magistrates bad also been educated as lawyers at home, among whom were Winthrop, Bellingham, Humfrey, and probably Pelham and Bradstreet. But these were almost constantly in the magistracy, nor do we hear of them ever being engaged in the management of causes. If they made use of their legal acquirements it was in aid of the great object which they had so much at heart-the establishment of a religious commonwealth, in which the laws of Moses were much more regarded as precedents than the decisions of Westininster Hall, or the pages of the few elementary writers upon the common law which were then cited in the English courts."

It is curious to note some of the legislation aimed to dispossess the lawyer from his rightful position, and exclude him from even existence in society. In 1656 the following statute was enacted in that colony:

" This court, taking into consideration the great charge resting upon the colony, by reason of the many and tedious discourses and pleadings in the courts, both of plaintiff and defendant, as also the readiness of many to prosecute suits in law for small matters, it is therefore ordered by this court and the authority thereof that when any plaintiff or defendant shall plead by himself or his attorney for a longer time than one hour, the party that is sentenced or condemned shall pay twenty shillings for every hour so pleading more than the common fees appointed by the court for the entrance of actions, to be added to the execution for the use of the country.”

There was a crafty wisdom in this statute which commends itself to anyone of much experience on the bench, and I venture to suggest that a similar act would to-day be sustained by every court. By an act passed in 1663 “usual and common attorneys” were excluded from seats in the general court, as the Massachusetts legislature was called. But notwithstanding these efforts, it soon developed that the needs of society were stronger than the wishes of the theologic advisers, and little by little the lawyer was lifted in even that theocratic society into his proper and accustomed place, and there, as elsewhere in the land, became the recognized leader.

To-day wealth is striving to dispossess him from his position of leadership, and money is used to secure position and control, but with the ordinary result that place and power acquired alone by such means simply expose the possessor to ridicule and scorn. It takes something more than a $200 silk nightshirt to make a man a leader in social forces, and whatever of prominence and notoriety money may purchase, it never purchases the power to change the currents of life.

1 Address delivered at the meeting of the American Bar Association at Detroit, Mich., August, 1895. From Proceedings of the American Bar Association, 1895.

This leadership of the lawyer is not accidental nor enforced, but natural, and resulting from his relations to society. That which binds society together and makes possiblo its successes and its blessings, is the mystic force which we call “law." It is that which transforms humanity from a mere aggregation of individuals, each by his own strong arın asserting his rights, into an organized society, the rights of whose individual members, as against one another, are enforced by the united strength of all, and in whose conseqnent freedom of personal action has been wrought out all the achievements of the past and rest all the possibilities of tho future. He, therefore, who voices the law, who is its interpreter, must inevitably stand in tho front as the leader in the social organization, the one to direct tho movement of all its uplifting forces. Sneer at it as anyone may, complain of it as anyone will, no one can look at American society as it is to-day, and has been during the century of national existence, without perceiving that the recognized, persistent, and universal leader in social and political affairs has been the gentleman of the green bag. A distinguished member of onr profession said to me the other day in Nashville: “It is a curious fact that though there is no express authority therefor in any constitution or statute in the land, the lawyers have always been the rulers of this nation.” We speak of our Constitution as the wise organic instrument under whose provisions the nation has moved on to strength and glory, but that Constitution was the handiwork of lawyers. They framed it, and they have interpreted it. Think how we should have drifted and what a helpless mass of people we should have been without its grants, limitations, and distributions of power. And, in a general way, the same may be said of every State constitution and of every statute. it is the brain of the lawyer which fashions them, and his brain that applies and makes them useful. As a general rule, made more conspicuous even by the few brilliant exceptions, the lawyer has been the legislator, the judge, and the executive.

The power which alone permanently controls and lists upward is brain power, and brain power applied in such a way and to such forces as regulate life in its daily action. Leadership, however, does not attend on the mere name of lawyer. It will continue in him and become more or less potent as his capacity therefor improves or wanes, according to his increasing or lessening fitness for interpreting the rules of human conduct and directing the movements of society. There is no physical force to compel his supremacy. Ile lias no inherited right, and he must always stand intellectually in front if he would lead. Civilization lifts all men up. The schoolroom places each man on a higber level than his father occupied. Knowledge is not only more wisely distributed, but also moving on a higher plane. And the lawyer of the future, to continue the leader must be a wiser man than the lawyer of the past or present.

The thought of somo is to dispossess the lawyer by giving to each man a knowl. edge of tho rules of law, and you will find on many bookshelves such volumes as these: Every Man His Own Lawyer, The Business Man's Guide-books aimed to place before all men the common rules for interpreting and controlling business transactions. Some fancy that with this diffusion of knowledge the need for the lawyer will cease. They who indulge in such fancy forget the fact that the many never keep pace with the few, that social and business relations become more complicated as civilization advances, and that with the complexity of those relations comes a multiplicity of rules and laws beyond the reach of the ordinary education of the many. There is as much difference between the few primitivo rules that controlled society in its early stages of development and those which are now required for the management of its great and interlaced interests, as there is between the hatchet, the saw, and other ordinary tools of the carpenter, and the marvelous and intricate machinery of our great manufacturing establishments. It may require but little time and effort to learn how to use a plane or a handsaw, but to construct and keep in motion and order all the involved machinery of a great manufacturing establishment requires years of patient stndy and careful attention. So it may be that a little knowledge will enable ono to go into a primitive society and advise as to the rules of law controlling its few transactions, but he who would stand in one of our great commercial cities as a power and a leader, advising and directing all its multiform affairs, must be a man of superior knowledge and large wisdom.

Wo hear many suggestions to-day as to the means necessary to make the law keep paco with the needs of advancing society. Law reform is a great cry. Simplicity in mode of procedure is thought by some to be the one thing needful. Far be it from me to belittle this demand. I do not wonder that the lawyer fell into disrepute when the highest effort seemed to be put forth in solving mere questions of pleading and practice, when the pride of the lawyer was in tripping his adversary through a mere technicality, and when the outcome of too many a lawsuit was not the determination of the relative rights of the litigants, but simply how nearly the pleadings on the one side or the other conformed to a technical and arbitrary system. Chief Justice Taney, writing of his professional experience, says: “In that day strict and nice technical pleading was the pride of the bar, and I might also say of the court.


And every disputed suit was a trial of skill in pleading between counsel, and a victory achieved in that mode was much more valued than one obtained on the merits of the case." I am glad that law reformers have swung ponderous blows against the common-law system of pleading and practice, and are striving to givo the utmost simplicity to modes of procedure. Once in while we see one of those technical devotees of ancieut ways, whose delight is simply in the maneuvers of the court

I remember one, who, employed to defend a chancery suit, wearied the court by the inultitude of his dilatory, evasive, and technical pleas and motions. Finally, the judge, in his impatience, said to him, “Why do you take up my time with these frivolous and technical matters; why do you not come to the merits of the case at once " And his reply, which illustrates so well the spirit of the old practitioners, was, “The moment I get to the merits of the case I lose all interest in it." No thoughtful man can doubt that simplicity in modes of procedure is of the utmost importance. The mere tools of the profession should be easily handled. Writing a pleading, or any other document, in a dead language is not the best evidence of the highest practical learning, or the greatest capacity. And it is to the credit of our profession that its members are rapidly coming to appreciate this truth; to realize that mere form is of trifling moment, and that substance of right and justice is the one thing to be striven for. God speed the day when a victory won by a trick shall ruin the lawyer who wins it.

Again, auother demand is for more speed in the dispatch of litigation. A slow procedure, with free right of appeal from court to court and abundant license of indirect collateral attack, was barely tolerable when life itself moved slowly, when business transactions were few, when travel was by canal boat or stage coach, when the mail was weekly or at best triweekly, and when leisure was abundant. The pure gold of truth and justice was finally separated, it is said, after being sifted through many judicial sieves. “Jarndyce v. Järndyce” expressed even then the contempt of thoughtful minds. The law's delay became proverbial. Now, when travel is by steam, and correspondence by electricity, when business transactions challenge the seconds in their flight, when men grow rich or poor in a fortnight, and all life moves in the hot haste of a Kansas cyclone, something must be done to bring the movements of the courts into harmony with the speed of other things. It is not strange that business men are compelling the members of their various commercial bodies to settle their controversies through comunittees rather than by lawsuits. Lawyers are proverbially conservative, and they do not change their habits or notions as easily or as quickly as some might wish. Precedent is an awful tyrant in our profession. What has been is to many the sacred law of what must be, and an iconoclast on the bench is a sacrilegious judicial monster. Even that tribunal of the nine black gowns glories in the past, and follows in its traditions, and the agonizing cry of the despondent dissenter, even in the income-tax case, is that stare decisis is being stabbed in the house of its friends. Et tu, Brute! When the court had little to do, the justices were wont to spend the morning hours of each Monday in reading at leugth what they had written during the prior weeks. What has been must be, and so, although the great stress of accumulating business demands every hour, thé customs of the past still largely control. Someone has denounced in language too strong for me to quote the waste of time in reading to an audience of 100 or so that which is the interpretation of the law for 70,000,000 of people, who learn what has been decided not from the lips of the justices but from the pages of the press. And, I may add, the acoustic properties of the court room are so imperfect, and the voices of the justices generally so low, that scarcely half the scanty audience hear what is said. And when one speaks so that all in the room do chance to hear, the press dispatches announce to the world that the audible justice has made a stump speech from the bench. But "great is Diana of the Ephesians," and so for “about the space of two hours' every Monday morning the reading must go on.

Yet speed of itself may be more of a vice than a virtue. Important questions are not rightly decided unless fully considered, and the administration of justice would soon be pronounced a mockery if first impressions controlled every case. But greater expedition can be obtained without detracting from fullest examination and consideration. Shorten the tinie of process. Curtail the right of continuance. When once a case has been commenced deny to every other court the right to interfere, or take jurisdiction of any matter that can be brought by either party into the pending litigation. Limit the right of review. Terminate all review in one appellate court. Reverse the rule of decision in appellate courts, and instead of assuming that injury was done if error is shown, require the party complaining of a judgment or decree to show affirmatively not merely that some error was committed in the trial court, but also that if that error had not been committed the result must necessarily have been different. It may be said that this would make reversals difficult to obtain. They should be difficult. The end of litigation should be almost always in the trial court. Business men understand that it is best that the decisions of their committees of arbitration should be final and without any review; while some of our profession seem to think that justico is more likely to be secured if by repeated reviews in successive courts, even to the highest in the nation, the fees of counsel can be made to equal if not exceed the amount in controversy between the clients. In criminal cases there should be no appeal. I say it with reluctance, but the truth is that you may trust a jury to do justice to the accused with more safety than you can an appellate court to secure protection to the public by the speedy punishment of a criminal. To guard against any possible wrong to an accused, a board of review aud pardons might be created with power to set aside a conviction or reduce the punishment, if on the full record it appears not that a technical error has been cominitted, but that the defendant is not guilty, or has been excessively punished.

The truth of it is, brethren, in our desire to perfect a system of administration, one which shall finally extract from confused masses of facts and fictions the absolute and ultimate verities, we forget that tardy justice is often gross injustice. We are putting too heavy burdens on our clients, as well as exhausting the patience of the public. Better an occasional blunder on the part of a jury or a justice of the peace, than the habit of protracted litigation.

The idea of home rule and local self-government is growing in favor. Thoughtful men more and moro see that the wise thing is to cast upon each community full responsibility for the management of its local affairs, and that the great danger to free government is in the centralization of power. Is it not in line with this thought that as far as possible the final settlement of all controversies which are in themselves local shall be by the immediate friends and neighbors of the litigants? Was not that the underlying thought of the jury as first established? And while we boast that the jury system is the great bulwark of our liberties, are we not in danger of undermining its strength and impairing its influence by the freedom of appeals ? Is not the implication therein that the jury and the trial judge can not be trusted, and is not thò sense of responsibility taken away from both when they understand that no matter what they may decide some superior and supposedly wiser tribunal is going to review all their decisions and correct whatever of mistake they may make?

We boast of the educating influence of the ballot box, and say that only as each citizen realizes that the responsibilities of government rest upon him is possible the development of a perfect system of popular government. Is it not also true that the jury room has its educating influence, and that we ought so to adjust our system of jurisprudence that each juror shall coine to feel that the responsibility for the administration of justice rests largely upon him?

But whatever of help may be in these suggested reforms, they are impotent of themselves to create the leader. They are simply a matter of machinery. The power must be in the man. The lawyer must be fitted to lead. For that a thorough education is necessary. And so I come to the thought which I wish to impress upon you; and that is, if our profession is to maintain its prominence, if it is going to continue the great profession, that which leads and directs the lovements of society, a longer course of preparatory study must be required. A better education is the great need and the most important reform. The door of admission to the bar must swing on reluctant hinges, and only he be permitted to pass through who has by continued and patient study fitted himself for the work of a safe counselor and the place of a leader.

I do not propose to discuss the different methods of legal education, or compare tho law school with the office, the case with the text-book. These are questions which others can and doubtless will discuss with far more ability and with the benefit of a larger experience. That which I wish alono to emphasize is the need of securing in some way to everyone admitted to practice the benefit of a preparation therefor far surpassing that which most young lawyers now enjoy. I speak with the utmost freedom, for I did that which I now condemn. I hastened through my legal studies and was by the diploma of a law school and a certificate from a court declared fit to advise as to all rights and liabilities, and to carry on any litigation before I was old enough to be intrusted with the right to vote. I appreciated the mistake when I attempted to practice, and I fear some of my clients became equally aware of the fact.

But why is a higher education to-day the special need of the profession? Because, first, the law is a more intricate and difficult science than heretofore. The very complexities of our civilization and the multiform directions of human enterprise havo not only increased the number, but have also given greater variety to the rules controlling business transactions. He who would become qualified to counsel and guide must therefore have a larger legal lore, and that is only obtained by a more extended study and training. While it is true that the practice of the law is becoming divided into specialties, and we have the insurance lawyer, the railroad lawyer, etc., yet no man can become a successful specialist without a general knowledge of the rules obtaining in other departments than his own.

ED 95-40*

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