Chapter III: Part 3

From the buyer to the seller is the shortest step. The newspaper is a manufacturing concern producing goods to sell at a profit; it is also a department store, and it has some characteristics that suggest the variety show and the brothel. But the newspaper differs from all other commodities in that it does not live by what it receives from the consumer who buys it. Three cents multiplied a million times does not support a newspaper. The valuable part of a newspaper from the manufacturer’s point of view, and also to a great extent from the reader’s point of view, is the advertisements. The columns of “reading matter,” so called, are little more than bait to attract enough readers to make the paper worth while as a vehicle for advertisements. It is of no importance to the management whether a given column contain news from Washington or Moscow, true or false, or a scandal or a funny story, as long as it leads some thousands of human eyes to look at it and so to look at adjacent columns in which are set forth the merits of a safety razor or an automobile tire or a fifty-dollar suit of clothes at thirty-nine dollars and a half. There has to be a good variety and a certain balance of interest in the columns of reading matter to secure the attention of all kinds of people. This accounts for two things, the great development in the newspaper of pure, or impure, entertainment, of more or less clever features, at the expense of space that might be devoted to news, and also the tendency to accentuate narrative interest above all other kinds of interest. A reporter is never sent out by his chief to get information, but always, in the lingo of the office, to get a “story.” This is sound psychology. Everybody likes a story, and there are only a few souls in the world who yearn at breakfast for information. To attack the newspaper for being sensational is to forget that all the great stories of the world, from the amatory exploits of Helen of Troy and Cleopatra to the scandalous adventures of Mrs. Black, the banker’s wife, are sensational and should be so treated. The newspaper manager is indifferent to every quality in his news columns except their power to attract the reader and so secure circulation and so please the advertiser. And the advertiser has as his primary interest only that of bringing to the attention of a certain number of people the virtues of his suspenders, shoes, and soothing syrup.

But the advertiser has a secondary interest. The newspaper willy-nilly deals with ideas, such as they are. No idea inimical to the advertiser’s business or in general to the business system of which he is a dependent part must be allowed in the paper. Therefore all newspapers are controlled by the advertising department, that is, the counting-room. They are controlled negatively and positively. We are discussing general characteristics and have not space for detailed evidence. But one or two cases will suffice.

An example of the coercion of the newspaper by the advertiser was recently afforded by the Philadelphia press. The Gimbel Brothers, owners of a department store, were charged by United States Government officials with profiteering. The only Philadelphia paper that made anything of the story was the _Press_, which was owned by Mr. Wanamaker of the rival department store. The other papers ignored the story or put it in one edition and then withdrew it. If there is an elevator accident in a general office building, it is reported. If there is a similar accident in a department store, it is usually not reported. When the New York _Times_ (April 25, 1921) prints a short account of the experience of four Wellesley college students who disguised their intellectual superiority and got jobs in department stores, the head-line tells us that they “Find They Can Live on Earnings,” though the matter under the head-line does not bear this out. Perhaps it does no harm to suppress, or fail to publish, news of accidents and to make out a good case for the living and working conditions of shop-girls. These are minor matters in the news of the world and their importance would appear only if they were accumulated in their tediously voluminous mass.

The positive corruption of the newspaper by the advertiser goes deeper and proceeds from larger economic powers than individual merchants. There is all over the world a terrific economic contest between the employing classes and the wage-earning classes. The dramatic manifestation of this contest is the strike. Almost invariably the news of a strike is, if not falsified, so shaped as to be unfavourable to the workers. In the New York _Nation_ of January 5, 1921, Mr. Charles G. Miller, formerly editor of the Cleveland _Plain Dealer_, exposes the lies of the Pittsburgh papers during the steel strike. In two weeks the Pittsburgh papers published more than thirty pages of paid advertisements denouncing the leadership of the strike and invoking “Americanism” against radicalism and syndicalism. The news and editorial attitude of the papers coincided with the advertisements and gave the impression that the strikers were disloyal, un-American, bolshevik. They were silent on the real questions at issue, hours, pay, working conditions. And not only the Pittsburgh press but the press of the entire country was poisoned. For the Associated Press and other news services are not independent organizations feeding news to their clients but simply interrelated newspapers swapping each other’s lies. The Denver newspapers control all the news that is read in Boston about the Colorado coal mines. The Boston newspapers control all the news that is read in San Francisco about the New England textile mills. The head of a local bureau of the Associated Press is not a reporter; he is merely a more or less skilful compiler and extracter who sends to the nation, to the whole world, matter which is furnished him by the papers of his district. So that he can usually hold up his hand and swear to the honesty of his service; he is like an express agent who ships a case of what he thinks is canned corn, and it is not his fault if there is opium concealed in the case.

The power of the advertiser to make the newspaper servile and right in its opinions is not confined to the local department store or the special industry operating through a district press. Nor is it confined to the negative punishment of withdrawing advertising of commodities like hosiery, chewing gum, and banking service from papers that offend their masters. There is another method of exerting this power, and that is to buy advertising space in which to set forth ideas calculated to influence public opinion. Here is a full page from a New York paper containing a cartoon and text, the main idea of which is that Labour and Capital should pull together. It is signed by “‘America First’ Publicity Association” and is Bulletin No. 115 in a series--“be sure to read them all.” This full-page bulletin, of which there have already been more than a hundred, appeared in many newspapers--I do not know how many; and a full page costs a good deal of money. What is the object of this patriotic association? The prevailing theme of the bulletins which I have seen is “Labour be good! Fight Bolshevism! Beware the Agitator!” Who is going to be influenced by these bulletins? Not the workingman. He knows what he wants, and if he is the dupe of agitators and false theories, these sermons can never rescue him. Not the capitalist. He knows what he wants, and gets it. Perhaps the little middle-class fellow may swallow such buncombe on his daily journey between his office and his home in the suburbs. But he is already an intellectually depraved servant of the employing classes, and it is not worth hundreds of thousands of dollars to complete and confirm his corruption. The primary object of the advertisement is to keep the newspaper “good,” to encourage its editorial departments, through the advertising department, not to fall below 99 and 44/100% pure Americanism or admit ideas inimical to the general interests of chambers of commerce, manufacturers’ associations, and other custodians of the commonweal. I suspect that some clever advertising man has stung the gentlemen who supply the money for this campaign of education, but what is a few million to them? The man who can best afford to laugh is the business manager of the newspaper when he looks at the check and meditates on the easy money of some of his advertising clients and the easy credulity of some of his reading clients.

It may be argued that the newspaper, which is a business, ought to be controlled, directly and indirectly, by business interests; and certainly if we allow the commercial powers to manage our food supply, transportation, and housing, it is a relatively minor matter if the same powers dominate our press. In like manner if we tolerate dishonest governments, we are only dealing with an epiphenomenon when we consider the dishonest and inefficient treatment by the press of public affairs, national and international. All the news of politics, diplomacy, war, world-trade emanates from government officials or from those who are interested in turning to their own advantage the actions of officials. Business is behind government, and government is behind business; which comes first is unimportant like the problem of the chicken and the egg. It is a partnership of swindle, and though the details of the relation are infinitely complicated, the relation in itself is easy to understand and accounts quite simply for the fact that world news is the most viciously polluted of all the many kinds of news. The efforts of a merchant to keep up the good name of his department store, or of a group of manufacturers to break a strike are feeble and even reasonable, so far as they use the newspapers, compared to the audacious perversion of truth by the combination of arch criminals, government and international business.

The star example in modern times is the current newspaper history of Russia. The New York _Nation_ of March 6, 1920, published an article showing that in the columns of the New York Times Lenin had died once, been almost killed three times, and had fallen and fled innumerable times. The _New Republic_ published August 4, 1920, a supplement by Lippmann and Merz summarizing the news which the _Times_ printed about Russia during the three years preceding March 1920. The analysis shows an almost unbroken daily misrepresentation of the programme, purposes and strength of the Russian government and continuous false “optimism,” as the writers gently call it, about the military exploits of Russia’s enemies, the “white hopes,” Kolchak and Denekin. The writers expressly state that they did not select the _Times_ because it is worse than other papers but, on the contrary, because it “is one of the really great newspapers of the world.” “Rich” or “powerful” would have been a better word than “great.” The sources of error in the Times were the Associated Press, the special correspondents of the Times, government officials and political factions hostile to the present Russian régime. Among the offenders was the United States Government or the journalistic fake-factory in or adjacent to the Department of State. At this writing the article in the _New Republic_ has been out nearly a year, that in the _Nation_ more than a year. It is fair to assume that they have been seen by the managers of the _Times_ and other powerful journalists, that if there was any misstatement the weekly journals would have been forced to recant, which they have not done, and that if the Ochses of the newspaper world had any conscience they would have been at least more careful after such devastating exposures. But the game of “Lying about Lenin” goes merrily on.

The American government and the American press have not been more mendacious in their treatment of Russia than the governments and the press of other nations, but they have been more persistently stupid and unteachable in the face of facts. The British government has been engaged in an agile zigzag retreat from its first position of no intercourse with Russia, and when the London _Labour Herald_ exposed the trick of Lloyd George which consisted of printing and sending out _from Russia_ propaganda against the Soviet government, the prince of political liars was obliged to stop that fraud. On the other hand one of the first acts of our new administration was Mr. Hughes’s idiotic confirmation of the attitude held by the old administration, and he furnished the newspapers real news, since the Secretary’s opinions, however stupid, are real news, to add to their previous accumulation of ignorance and lies, and thereby encouraged them in their evil ways. If a government is composed of noodles and rogues, the press which reports the activities of the government and the opinions of its officials is only secondarily responsible for deceiving the public. The editors might be more critical in sifting the true from the false. But the newspaper has no motive for trying to correct the inherent vices of business and government; it does not originate those vices but merely concurs in them and reflects them. The newspaper is primarily responsible only for the stupidity and mendacity of its correspondents and editors. It is not an independent institution with its own ethic, with either will or full opportunity to serve the truth, but is only the symptom and expression of the vast corruption that lies behind it and of the dense popular ignorance that stands gaping before it.

The _Dunciad_ of the Press does not end in quite universal darkness. There is a little light over the horizon. A new organization called The Federated Press, which endeavours to “get the news in spite of the newspapers and the great news agencies,” announces that already two hundred editors all over the world are using its service. It is too soon to tell how successful this enterprise will be, but it is a ray of promise, because it is an association of working journalists and not a vague aspiration of reformers and uplifters. Until some such organization does become powerful and by practical labour make an impression on the daily paper, we shall have to depend for enlightenment on a few weekly and monthly periodicals of relatively small circulation. Most of the popular weeklies and monthlies are as bad in their way as the newspapers, but they aim chiefly at entertainment; their treatment of the news in special articles and editorials is a subordinate matter, and their chief sin is not dishonesty but banality. The periodicals which do handle the news, always honestly, usually with intelligence, the _Nation_, the _New Republic_, the _Freeman_ and one or two others, must have an influence greater than can be measured by their circulation; for though the giant press laughs at the cranky little Davids with their vicious radical ideas, and though it is too strong to be slain or even severely wounded, yet it cannot be quite insensible to the stones that fly from those valorous slings. It is, however, an indication of the low mental level of America that the combined circulation of these journals, which are, moreover, largely subscribed for by the same readers, is less than that of a newspaper in a second-rate city. Two of them are endowed or subsidized by liberal men of means and none of them is shiningly prosperous. An intelligent populace would buy them by the million. So we leave the responsibility where, after all, it belongs. The American press is an accurate gauge of the American mind.

JOHN MACY

THE LAW

“The first thing we do, let’s kill all the lawyers.” This outcry of Jack Cade’s followers that the disappearance of the whole profession was the initial step in man’s progress toward a better world would be echoed in the United States by the revolutionists of to-day, and also by not a few solid business men who have nothing else in common with the mediæval agitator except perhaps the desire to see the fountains run wine and make it a felony to drink near-beer. Indeed almost every one takes his fling at the law. Doctors and ministers can be avoided if we dislike them, but the judge has a sure grip upon us all. He drags us before him against our will; no power in the land can overturn his decision, but defeated litigants, disappointed sociologists, and unsuccessful primary candidates all join in a prolonged yell, “Kill the umpire.”

Where there is smoke, there is fire. Underneath all this agitation is a deep-seated suspicion and dissatisfaction aroused by the legal profession and the whole machinery of justice. It exists despite the fact observed by Bryce, that our system of written constitutions has created a strongly marked legal spirit in the people and accustomed them to look at all questions in a legal way--a characteristic exemplified when other peoples judged the Covenant of the League of Nations as an expression of broad policies and the aspirations of a hundred years, while we went at it word by word with a dissecting knife and a microscope as if it had been a millionaire’s will or an Income Tax Act. Moreover, although lawyers as a class are unpopular, they are elected to half the seats in the legislatures and in Congress. The profession which cannot boast a single English Prime Minister in the century between Perceval and Asquith, has trained every President who was not a general, except Harding. Perhaps this very fact that lawyers receive public positions out of all proportion to their numbers partially accounts for the prejudice felt against them by men in other professions and occupations.

Hostility to lawyers and case-law is no new phenomenon in this country. Puritans and Quakers arrived with unpleasant memories of the English bench and bar, who had harried them out of their homes. To them, law meant heresy trials, and the impression that these left on the minds of their victims has been set down forever by Bunyan in the prosecution of Faithful at Vanity Fair. The Colonists were no more anxious to transplant some Lord Hate-good, his counsellors, and his law books to our shores, than Eugene V. Debs would strive to set up injunctions and sedition statutes if he were founding a socialistic commonwealth in the South Seas. The popular attitude toward lawyers was re-inforced by the clergy who were naturally reluctant to have their great moral and intellectual influence disputed by men who would hire themselves out to argue either side of any question. The ministers who ruled Massachusetts and Connecticut by the Law of Moses, wanted no rivals to challenge their decisions upon the authority of Bracton and Coke. And everywhere, except perhaps on the Southern plantations, the complicated structure of feudal doctrines, which constituted such a large part of English law well into the 18th century, was as unsuited to Colonial ways and needs as a Gothic cathedral in the wilderness. Life was so pressing, time was so short, labour so scarce, that the only law which could receive acceptance must be so simple that the settlers could apply it themselves. Although Justice Story has spread wide the belief that our ancestors brought the Common Law to New England on the _Mayflower_, the truth is that only a few fragments got across. These were rapidly supplemented by rules based on pioneer conditions. Much the same phenomenon occurred as in the California of 1849, where the miners ignored the water-law of the Atlantic seaboard which gave each person bordering on a stream some share of the water, and adopted instead the custom better suited to a new country of first come, first served. Almost the earliest task of the founders of a Colony was the regulation of the disputes which arise in a primitive civilization by a brief legislative code concerning crimes, torts, and the simplest contracts, in many ways like the dooms of the Anglo-Saxon kings. Gaps in these codes were not filled from the Common Law, as would be the case to-day, but by the discretion of the magistrate, or in some Colonies, in the early days, from the Bible. Land laws and conveyances were simple,--the underlying English principle of primogeniture was abolished outright by several Colonial charters, and disputes of title were lessened by the admirable system of registering deeds. Such law did not require lawyers, and it is not surprising that even the magistrates were usually laymen. The chief justice of Rhode Island as late as 1818 was a blacksmith. Oftentimes a controversy was taken away from the court by the legislature and settled by a special statute. Thus, instead of the English and modern American judge-made law, the Colonists received for the most part executive and legislative justice, and lived under a protoplasmic popular law, with the Common Law only one of its many ingredients.

The training of the few Colonists who did become lawyers may be judged from that of an early attorney general of Rhode Island:

“When he made up his mind to study law, he went into the garden to exercise his talents in addressing the court and jury. He then selected five cabbages in one row for judges, and twelve in another row for jurors. After trying his hand there a while, he went boldly into court and took upon himself the duties of an advocate, and a little observation and experience there convinced him that the same cabbages were in the court house which he thought he had left in the garden,--five in one row and twelve in another.”

The natural alienation of such attorneys from the intricacies of English law was increased by occasional conflicts between that system and Colonial statutes or conceptions of justice. An excellent Connecticut act for the disposal of a decedent’s land was declared void by the Privy Council in London as contrary to the laws of England, and the attempt of the New York governor and judges to enforce the obnoxious English law of libel in the prosecution of Peter Zenger in order to throttle the criticism of public officials by the press, would have succeeded if the jury had not deliberately rejected the legal definitions given by the court.

The Common Law became somewhat more popular when the principles of individual rights which had blocked Stuart oppression were used against George III. After the Revolution, however, it suffered with all things English. Many lawyers had been Loyalists. The commercial depression turned the bar into debt collectors. The great decisions of Lord Mansfield which laid the foundations of modern business law were rejected by Jefferson and many other Americans because of that judge’s reactionary policy towards the Colonies. Many States actually passed legislation forbidding the use of English cases as authorities in our courts. The enforcement of the Common Law of sedition and criminal libel by judges, many of whom had been educated in England, identified the Common Law with the suppression of freedom of speech. Nevertheless, the old simple Colonial rules were insufficient to decide the complex commercial questions which were constantly arising, especially in maritime transactions. Aid had to be obtained from some mature system of law.

At this moment a rival to the Common Law presented itself in the Napoleonic code of 1804, attractive to the populace just because it was French, and to many of the bar because of its logical arrangement and because unlike English lawyers they were widely read in Roman and modern Continental law. For a time it was actually doubtful whether the legal assistance which American judges needed would be drawn from England or France. French writers were cited in the courts and Livingston drafted a code on the Napoleonic model for Louisiana. The English law had, however, one great advantage. It was written in our own language. Furthermore, a group of exceptionally able judges such as Joseph Story and James Kent, by their decisions and writings, virtually imported the great bulk of the Common Law into this country and reworked it to meet American conditions. Nevertheless, this law was something that came from outside and had not grown up altogether from the lives and thoughts of our own people, so that it has never meant to Americans what English law means to Englishmen, for whom it is as much a product of their own land as parliamentary government or the plays of Shakespeare.

Another reason for American hostility to law was found at the frontier. The pioneer, imbued with the conviction that he was entitled to the land which he had cleared, ploughed and sown, often thrown by crop failures into debt to the tradesmen in the town, resented law as something which was forced upon him by people who led easy lives, who took his land away for some technical defect of title, foreclosed mortgages, compelled him to pay for goods of high prices and low quality, suppressed hereditary feuds, and substituted a mass of book learning which he was too ignorant or too busy to read, for the simple principles of fair play which seemed sufficient to him. Habitual obedience to law was a spirit which could not develop in men who were largely squatters, and who, from the outset of our national history, disregarded the Congressional statutes which required that public lands must be surveyed before they were settled. Sometimes, as in this instance, the settler’s resistance to law was successful. More often they were overpowered by the strength of civilization and submitted to the law sullen and unconvinced.

The old frontier is gone, a new frontier has arisen. The meeting place of unfriendly races has moved Eastward from the Missouri to the Merrimac. The pioneers of to-day came often from autocratic lands where law was something imposed on them from above, and they were slow to regard our law as different in kind. It was not a part of themselves. Moreover, they did not find in America the energetic police organization which had compelled their obedience in Europe. The men who framed our system of laws were taught by Puritanism that duties declared by those lawfully in authority should be voluntarily performed. A statute once on the books got much vitality from this spirit and from the social pressure of the homogeneous settled communities, whatever the difficulties of enforcement at the frontier. These forces behind law became weaker when the population was split into numerous and diverse races by the great tide of immigration. Obedience to law, never automatic among us, now became liable to cease altogether whenever a person thought the law unreasonable or felt fairly certain that he would not be found out.

This belief that a law ceases to have obligation when it becomes inexpedient to obey it, extends far beyond the recently arrived elements in our population. For instance, a wealthy man with several American generations behind him, who was serving on the jury in an accident case, stood up on a chair as soon as the jury got into the consultation-room and urged them to disregard everything which the judge had instructed them about the inability of the plaintiff to recover if he, as well as the defendant, was negligent. “This doctrine of contributory negligence,” said this educated juryman, “is not the law of France or Germany or any country on the Continent of Europe. A number of eminent writers agree that it is a thoroughly bad law. Let’s have nothing to do with it.” Needless to say, the plaintiff recovered. This conception of a higher law than that on the books may owe something to the Abolitionists’ belief that they were not bound by the laws protecting the inhuman institution of slavery. Many conscientious persons still hold that a man ought not to be punished for disobeying a law which he believes to be morally wrong. Fortunately, a corrective to this dangerous doctrine of the inner legal light is found in the words of a leading Abolitionist, Judge Ebenezer Rockwood Hoar, in charging the Grand Jury on riotous resistance to the fugitive slave law, although he himself regarded it as vicious legislation:

“A man whose private conscience leads him to disobey a law recognized by the community must take the consequences of that disobedience. It is a matter solely between him and his Maker. He should take good care that he is not mistaken, that his private opinion does not result from passion or prejudice, but, if he believes it to be his duty to disobey, he must be prepared to abide by the result; and the laws as they are enacted and settled by the constituted authorities to be constitutional and valid, must be enforced, although it may be to his grievous harm. It will not do for the public authorities to recognize his private opinion as a justification of his acts.”

Disrespect for law has been aggravated by the changing function of the lawyer since the Civil War. In the forties and fifties, he stood out as a leader in his community, lifted by education above the mass of citizens, often before the public gaze in the court-room and chosen because of his forensic eloquence to deliver many of those set orations which Americans constantly demand, brought forward by the litigation of those days as the avenger of crime, the defender of those unjustly imprisoned, the liberator of the escaping slave, or upholding some great public right on behalf of his city or State--the construction of a toll-free bridge across the Charles, the maintenance of the charter of Dartmouth College. After 1870, this pre-eminence was challenged by the new captains of industry, and their appearance was accompanied by an alteration in the work of many an able lawyer, which soon obscured him to the popular imagination. The formation of large businesses required more and more the skill which he possessed. Rewards for drafting and consultation became greater than for litigation, which was growing tedious and costly, so that his clients avoided it whenever possible. Consequently, he changed from an advocate into a “client care-taker,” seldom visible to the people and often associated in their minds with the powerful and detested corporations which he represented. Much of the prejudice against “corporation lawyers” was unjust, and the business development of to-day would have been impossible without the skill in organization and reorganization of great enterprises which they displayed during the last half century. However, popular opinion of a class is inevitably based, not on all its members, but on a conspicuous few, and the kind of legal career described in Winston Churchill’s “Far Country” was common enough to furnish data for damaging generalizations. In any case, the decline in the public influence of the bar was inevitable, especially as certain businesses retained the exclusive legal services of a staff of men, so that it could be said: “Lawyers used to have clients; now, clients have lawyers.”

Of course, during this period there were many lawyers who made a notable success by conducting cases against corporations. These accident lawyers were, however, no more popular than their opponents, even with the workingmen whom they represented. The small means of their clients made any remuneration from them improbable unless damages were recovered. Consequently, the lawyer agreed to take nothing if defeated, but to even matters up insisted on a large fraction of the amount awarded, usually one-third or even more, if he won. Therefore, he fought not merely for justice and his client, but for his own fee, and the temptation to win by every possible means was great. Business men were quick to label him unscrupulous, while workingmen resented it when a large slice of the money which the jury gave to them as a just measure for suffering a lifelong disability vanished into some lawyer’s pockets.

No satisfactory substitute for the contingent fee was suggested, but the prejudice created by the system and by the dislike of corporation lawyers was too great to be dispelled by the many members of the bar whose practice lay in neither of these two fields. And indeed, the profession as a whole cannot free itself from blame for some very definite evils, soon to be discussed. Unfortunately, the long-standing antagonism between lawyers and laymen has distracted the thoughts of both sides from wrongs which ought to be and can be cured, and turned them to never-ending disputes on problems of relatively small importance. For instance, almost any layman will open a discussion of the function of the lawyer by condemning the profession because it defends criminals who are known to be guilty. The solution of this problem is not easy, but it is not worth a hundredth of the attention it receives, for it hardly ever arises. The criminal law is a small part of the whole law, and lawyers who have spent their whole lives in that field have declared that they were not certain of the guilt of a single client. A far more important problem is whether a lawyer should advocate the passage of legislation which he personally considers vicious. Indeed, the underlying question, to which lawyers and laymen ought to be devoting themselves, is this. How far can the State ascertain the proper course of action by limiting itself to hearing paid representatives of the persons directly interested, financially or otherwise; or should the State also call in and pay trained men to investigate the question independently? The solution of this question will affect not only lawyers, but other professions as well. Medical experts, for instance, might cease to be hired by millionaires to prove them insane, or by the prosecuting attorney with the opposite purpose, but might be employed by the court to make an impartial inquiry into the mental condition of a prisoner. In short, it may be that we have carried the notion of litigation as a contest of wits between two sides so far that the interests of society have not been adequately safeguarded.

If laymen have erred in concentrating on minor points, lawyers have been far too ready to deny laymen any right to discuss law at all. It is just as if school-teachers should maintain that parents and citizens in general have no concern in the problems of education. The time has come to close the gulf in American life between the legal profession and the people who are ruled by laws. Law is the surface of contact where the pressure of society bears upon the individual. Doubtless, he attributes to the law many of the features in this pressure to which he objects, whereas they actually result from the social structure itself. The man who feels wronged by a prosecution for bigamy, or for stealing bread when he is starving for lack of employment, cannot expect to change the law without also changing the views of the community on monogamous marriage and the organization of industry. These institutions of society show themselves in the law just as the veins in a block of marble show themselves at the surface, but it is as futile for him to blame the law for “capitalism,” private property, or our present semi-permanent marriages as to try to get rid of the veins by scraping the surface of the marble. On the other hand, there are aspects of law which do not correspond to any existing social requirements or demands, and the layman has good cause to offer his opinion. And it may be worth listening to. The onlooker often sees most of the game. Although the layman may lack technical knowledge, he can appreciate the relation of law to his own department of human activity--business, social service, health--in ways that are difficult for the lawyer who is absorbed in the pressing tasks of each day. Moreover, the lawyer’s habitual and necessary obligation to conform to existing laws naturally inclines him to overlook their defects, which are obvious to those who can spend in detached criticism the same time which he requires for practical application. Modern medicine was created by Pasteur, who was not a doctor; modern English law by Bentham, who was a lawyer to the extent of arguing one case and who was edited by Mill, a philosopher and economist.

Knowledge is no longer a matter of water-tight compartments. “All good work is one,” says Wells in “Joan and Peter.” Law touches psychology in its treatment of the defective and insane, medicine and surgery in industrial accidents and disease, political science in municipal corporations, economics in taxation, philosophy in its selection of the purposes it should strive to accomplish. And this is a meagre list. The greatest need of American law is the establishment of means for intelligent mutual understanding and effective co-operation, not merely between lawyers and experts in such other fields as those mentioned, but between lawyers and the mass of our population, who fill the jails, pay the taxes, drink city water, get hurt in factories, buy, sell, invest, build homes, and leave it all to their children when they die.

For these men and women have a right to complain of our law. Its evils are not those commonly decried, lawyers to defend the guilty, reliance on precedents instead of common sense, bribed judges. The real defect is failure to keep up to date. Many existing legal rules have the same fault as New York surface-cars before the subway or Hoboken Ferries before the tubes. They were good in their day, but it has gone by and they cannot handle the traffic. The system formulated by Story and Kent worked well for the farms, small factories, and small banks of their time, but the great development of national resources and crowded cities presented new situations unsuited to the old legal rules, and kept men too busy for the constructive leisure necessary for thinking out a new system. The law became a hand-to-mouth affair, deciding each isolated problem as it arose, and often deciding it wrong. Yet lawyers were satisfied with law, just as business men with business. Then came the agitation of the last fifteen years, which has at least made us discontented about many things. The next task is to stop calling each other names, sit down together, think matters through to a finish, and work together to complete the process which is farther along than we realize, of making over the common law system of an agricultural population a century ago to meet the needs of the city-dwelling America of to-day.

A first step toward co-operation would be more discussion of law in the press. Several years ago Charles E. Hughes in a public address said that one reason why courts and lawyers were so unpopular in this country was the unfamiliarity of the people with what they were doing. Outside of criminal prosecutions, divorces, and large constitutional cases, newspapers give very little attention to legal questions, and even these cases are presented fragmentarily with almost no attempt to present their historical background and the general principles at issue. There is nothing to compare with the resumé of trials and decisions which appears from day to day in the London _Times_, no popular exposition of legal problems such as Woods Hutchinson has done for medicine or numerous writers for the achievements of Einstein. Surely law can be made as intelligible and interesting to the ordinary educated reader as relativity. It enters so intimately into human relationships that some knowledge of it is very important, not as a guide in specific transactions as to which a lawyer ought to be consulted, but as part of the mental stock-in-trade of the well-informed citizen. Wider realization of the difficulties of the work of judges and lawyers would bring about a friendlier and more helpful popular attitude.

The public might understand, for example, why law does not progress so conspicuously and rapidly as medicine or engineering. Part of the blame rests, no doubt, upon lawyers, who have been less active than other professions in discussing and applying new ideas, but the very nature of the subject is an obstacle to quick change. In law, progress requires group action; the individual can accomplish little. The physician who discovers a new antitoxin, the surgeon who invents a new method of operating for gastric ulcer, can always, if his reputation be established, find some patient upon whom to test his conception. Its excellence or its faults can be rapidly proved to his own mind and that of any skilled onlooker. And new ideas, if sound, mean a larger practice and money in his pocket. The lawyer gets no such rewards for improving the law, and has no such opportunities for experiment. If he is convinced by observation, wide reading, and long thinking, that arrest for debt should be abolished, or the property of a spendthrift protected by law from his creditors, or trial by jury abandoned except in criminal trials, he cannot try out these theories upon some client. He must sacrifice days from his regular work to persuade a whole legislature to test his idea upon thousands of citizens, and if the idea is a bad one, the experiment will be a widespread disaster. Consequently law reform always faces an instinctive and discouraging legislative opposition. Even after every State except two had adopted the Uniform Negotiable Instruments Law, the Georgia legislature refused to do so because the Act abolished days of grace, the old custom allowing a debtor three days beyond the time of payment named in his note. They said that when a man had promised to pay a debt on May 1, it was un-American not to let him wait till May 4. Again, a committee of very able New York lawyers recently drew a short Practice Act setting forth the main requirements for the conduct of a law-suit, and leaving the details to the judges, who may be supposed to know more about their own work than the legislature. Similar laws have long been in successful operation in England, Massachusetts, and Connecticut, whereas the existing New York Code of Civil Procedure with its thousands of sections has been a vexatious source of delay and disputes in the press of urban litigation. The new measure was an admirable and thorough piece of work, endorsed by the Bar Associations of New York City and the State. Yet it was killed by the age-long opposition of the country to the town. Upstate lawyers, less harassed by the old Code because of uncrowded rural dockets, objected to throwing over their knowledge of the existing system and spending time to learn a new and better one. The legislature hated to give more power to the courts. As a result, the new bill was scrapped, and nothing has been done after years of agitation except to renumber the sections of the old Code with a few improvements.

Another factor in law reform is the existence of fifty legal systems in one nation. Even if the law is modernized in one State, the objectionable old rule will remain in the other forty-seven until their legislatures are persuaded by the same tedious process. On the other hand, this diversity has its merits. Some of the progressive Western States serve as experiment stations for testing new legal and governmental schemes. Still more important, the limitations on legal experimentation are somewhat offset by the opportunities for observation of the workings of different legal rules in neighbouring States. The possibilities of this comparative method for judging the best solution of a legal problem have not yet been fully utilized. For example, a dispute has long raged whether it is desirable to compel a doctor to disclose professional secrets on the witness-stand without the patient’s consent. About half the States require him to keep silent. The reasons given are, that patients will seek medical aid less freely if their confidences may be disclosed; doctors would lie to shield their patients; some doctors are hired by employers to treat workmen injured in accidents and will try to get evidence on behalf of the employers if they are allowed to testify. So far, the discussion has turned on the probability or improbability that these arguments represent the facts, and neither side has collected the facts. The discussion could be brought down to earth by an investigation in New York which has the privilege, and Massachusetts, where secrecy is not maintained. Are doctors less consulted in Massachusetts, do they perjure themselves, do they ingratiate themselves with workmen to defeat subsequent accident suits? Statistics, personal interviews with judges and physicians, and examination of the stenographic records of trials ought to give valuable assistance in determining which half of the States has the better rule.

Since law reform requires highly organized group action, some individual should be charged with the responsibility of organization. At present, it is everybody’s business. Judges are hearing cases all day and writing opinions at night, and they have no legislative position as in England, where they can draft bills and present them in the House of Lords. Individual lawyers carry little weight. The Bar Associations have accomplished much, but the work of their members is done without pay in the intervals of practice, and they have no official standing. The Attorney General is necessarily a partisan, representing the State’s side in litigation, with neither the time nor the duty to improve the law in general. The United States and the larger States badly need a Minister of Justice. All complaints of legal inefficiency would come to him, and he would be constantly collecting statistics of the cases in the courts and their social consequences, observing procedure personally, or through a corps of expert assistants, conferring with the judges and the Bar Associations, drafting or examining measures affecting the administration of justice and giving his opinion about them to the legislature, and charged with the general duty of ascertaining whether every person can find a certain remedy from the laws for all injuries or wrongs, obtaining right and justice freely and without purchase, completely and without denial, promptly and without delay.

Until we establish such an official, we can rely on three instruments of legal advance, each of which may be a point of co-operation between lawyers and laymen. Of the first, the Bar Associations, something has already been said. The second is the judiciary. Unfortunately, the tendency of the American antagonism to law to concentrate on personal topics has warped the prolonged discussion of this branch of our government during the last ten years, and, indeed, since 1789. Charges of corruption and incompetency against individual judges, and methods of getting a bad judge off the bench, have entirely obscured the problem of getting good judges on the bench. The power of judges to declare statutes unconstitutional and void makes them the controlling factor in our government, yet there is no country where less attention is paid to their selection and training. It is of no use to recall a poor judge by popular vote if the people are eager to put one of the same type in his place. Nothing need be added to the estimate in Bryce’s “Modern Democracies” of the unevenness of judicial personnel. The most obvious need, if the inferior judges are to be brought up to the level of the best men, is for higher salaries. But that alone is not enough to induce leaders of the bar to become judges. No salary could be so high as the income of successful metropolitan lawyers. The time has come for greater willingness on their part to retire from a large practice in middle life and devote their talents to judicial work. And even this will be useless, unless selection is based on merit. Our system of an elective judiciary is probably too deeply rooted to be entirely abandoned, though it is clear that legal talent is not a quality, like executive ability, readily capable of being appraised by the electorate. On the other hand, it is not altogether certain that State governors would appoint judges without regard to partisan considerations. An interesting compromise plan has been suggested, that there should be a Chief Justice, elected by the people, who should be in effect the Minister of Justice already described. All the other judges would be appointed by him, for life or for long terms, while his responsibility for wise selections would be secured by a short term or even by the recall. A governor does so many tasks that his judicial appointments do not play a large part in the popular judgment of his record, but the Chief Justice would stand or fall on the merits of the administration of law under his management.

Moreover, we do not deal fairly by the judges chosen under existing systems. After they have been selected, they should have more opportunity to study the special duties of their position before beginning work, and more leisure amid trials and opinions for general legal reading and for observation of the complexities of modern life which are inevitably involved in their decisions, especially on constitutional questions. Most litigation grows out of urban and industrial conditions, with which State supreme court judges may easily get out of touch, if they remain continuously in the State House in a small upstate city like Springfield, Albany, or Sacramento, with little opportunity to visit the factories and tenements of Chicago, New York, and San Francisco. It may also be doubted whether our usual system which restricts some judges to trials and others to appellate work is wise; an occasional change from one to the other is both refreshing and instructive. Judges frequently complain of the monotony of their work, cooped up with a few associates of similar mental interests, so that the atmosphere may acquire the irritability of a boarding-house. It is not generally understood how much judges are cut off from other men. Close intimacy with their former friends at the bar or with wealthy business men who may have cases before them, is sure to cause talk. Graham Wallas’s suggestion of an occasional transfer to active work of a semi-judicial character, like Judge Sankey’s chairmanship of the English Coal Commission, seems valuable. Our Interstate Commerce Commission would provide such an opportunity. Finally, the existing gulf between courts and law schools might be narrowed by summer conferences on growing-points in the law, where each side could give much out of its experience to the other.

The remaining instrument of progress is the law schools. “Legal education,” says Bryce, “is probably nowhere so thorough as in the United States.” The chief reasons for this success are two, the professional law teacher, who has replaced the retired judge and the practising lawyer who lectured in his spare hours; and the case-system of instruction. This method is not, as is popularly believed, the memorization by the students of the facts of innumerable cases. It imparts legal principles, not on the say-so of a text-book or a professor, but by study and discussion of the actual sources of those principles, the decisions of the courts. The same method in the Continental Law would result in a class-room discussion of codes and commentators, which are there the sources. One of the most interesting signs of its success is its spread from law into other sciences such as medicine. Books based on the study of concrete situations are used in public schools for the study of geography and hygiene, and charitable societies work out the general needs of the community from the problems of individual families. This system has superseded in all the leading law schools the old methods of lecturing and reading treatises. Its most conspicuous service is, of course, vocational, the training of men whose advice a client can safely accept. Already some States have required a law-school degree as a condition of admission to the bar, and the old haphazard law-office apprenticeship will eventually disappear, although the question of how far a man who is earning his living should be allowed to study law in his spare hours at a night law school whose standards must usually be lower than a full-time school remains as a difficult problem in a democratic country. Efficiency of training conflicts with equality of opportunity. A second service of the leading law schools is the modernization of the law through the production of books. A great example of this is the “Treatise on Evidence,” by John H. Wigmore, dean of Northwestern Law School, which is every day influencing courts and renovating the most antiquated portion of the common law.