Chapter 2

Between the judge's desk and the jury-box is the witness chair, an ordinary chair placed not quite so high, but beside the judge's and where he can look down on the witness. The position of the witness chair may be accountable for the feeling of protecting the witness that exists in the minds of the judge and jury. There is a natural sympathy for him, as though he were being attacked by the examining counsel. The witness in former times stood in a little enclosed box and in Italy, where court scenes are more intense, the prisoners to this day in criminal trials testify from behind iron bars.

Below the witness chair is the stenographer. The former idea of the aged scrivener or court clerk with white hair and green eye shade has vanished. The modern stenographer, who keeps the record of a trial, is probably an energetic young man, who has passed high on the civil service list, knows something about law, is studying for a better position, or is connected with a very profitable stenographers' business on the outside.

The court proper is divided from the rest of the room by an iron or wooden rail guarded by a jealous court attendant, who is always a strong advocate of court etiquette and very properly maintains the dignity of the court. He is in uniform with a shield or badge of office conspicuously displayed and being taken from the civil service list whereon war veterans and retired firemen or policemen have a preference, is generally of a certain age. Naturally, being old and having to stand so much, he has tender feet, and with the customary effects of all secure and salaried positions, acquires both a slow and shuffling gait and the ordinary characteristics of his class. He is subject to many petty annoyances, foolish questions, repeated inquiries, people talking or arguing, little disorders pursue him on every hand.

The object of the attendant in the court is to maintain order and preserve dignity. They are almost avid in their pursuit of the ignoramus who comes in with his hat on his head or covers himself on going out before he reaches the door. Their salaries are not large but their duties are not arduous. They may seem solicitous to the judge and sometimes overbearing to the litigants and lawyers, but they are only in the position of the supes or ushers in the theater. Yet they are understanding and wise as regards the human drama constantly played before them.

The lighting of the court-room is unusually dramatic. There are no foot-lights, but the best theory of stage lighting is that there should be none. One of the most effective scenes in the modern theater is the court setting in Galsworthy's _Justice_. The lighting is indirect and the spots of red and green lights at the judge's desk, the corners of the jury-box and the shaded ones at the clerk's elbow, give a remarkable impression of mysterious terror.

Whatever may be the cause, there exists a marked resentment against the courts. Not only is there a complaint as to the cloying technicalities of procedure, the long and fatal delays of the law, the absurd forms and mannerisms of the trial, but underneath them all a fundamental distrust of justice itself. The complaint is heard of the inequality of justice. That there is a law for the poor man and another law for the rich. The stage gives expression to the feeling, and modern literature voices it. The high-priced millionaire escapes and the low-browed pickpocket goes to prison.

Cases are cited where the rich woman returning from a debauch of European shopping with a few thousand dollars' worth of pearls sewed in the lining of her winter bonnet is only fined, whereas the little milliner from the lower end of the city is sent to jail for trying to smuggle in a new coat. The impressario of art collections is caught at a gigantic scheme for defrauding the government of thousands of dollars on imported pictures. He hobbles into court and on the ground of ill health escapes a prison sentence and is merely fined, while the little Italian fruit vender is summarily jailed for bringing in a few dried mushrooms. The high financier who wrecks a railroad or a bank serves a light prison term and emerges like a phoenix to buy new steamboat lines or float new enterprises. But the peddler on the East Side who sells a few dollars' worth of stale fish is punished to the limit of the law.

The facts exist and to the popular mind seem unexplainable. There undoubtedly must be a reason, and what it is, is not hard to find. It seems one of the mysteries of judging and of justice, as though there were an unwritten law in the back of the human mind in favor of property rights. There is an explanation and not an inequality of justice. The facts are not as they are popularly stated or supposed to be. The public gets only a portion of the picture, and from an enormous group of cases, a few contrasted ones are picked out for the sake of the dramatic effect. The limelight of public notice is upon them and the softer lights and shadows are omitted. The public does not see the gradation. On the one hand we see the rich woman, the millionaire art dealer, the financial pirate being leniently dealt with, on the other hand we see the little milliner, the Italian fruit vender, and the peddler receiving harsh sentences.

The sharp contrasts make good newspaper stories that are appealing and touching. What the public does not see is the whole picture of all the cases of alleged inequality that come into court. These are only six out of seven hundred cases, chosen because they are melodramatic. There were nearly seven hundred other offenders that were let off with suspended sentences or light fines, of whom nothing is heard, but these three are conspicuous on account of their wealth, and the cases of the milliner, the mushroom vender, and the peddler are reported for the same reason--of being conspicuous. They are unusual on account of the sentences. The harshness of their sentences is remarkable. There may be special reasons. The six hundred and ninety-odd who are punished lightly in the same way as the rich man are not noticed.

As a matter of actual experience, the rich man has a harder time in court than the poor man. The inequality of justice, if there be any, is rather against him. Because he is rich and notorious the public prosecutor cannot let him off. If, for example, a poor man who is undoubtedly insane, commits a murder he is not tried, but is sent to an asylum for the insane. If, after several years, he recovers and is released, nothing is said about it; the public does not know. But let it be a rich lunatic and the public prosecutor is bound to bring him to trial. Public attention demands it. He may know him to be insane, but he must still prosecute him. The jury declare him insane. After years he is released from the asylum, the public thinks it a miscarriage of justice, forgetting in the meanwhile the inconspicuous poor man who unnoticed has gone through the same experience, and been released years ago.

The delays of the law are partly due to the system of courts and partly to the dullness of court procedure. The inefficiency of the system of courts and judicial procedure is shown in the practical workings of the civil courts of New York City. The antiquated organization of all the courts is like a patchwork quilt where each additional one has been added or increased as New York has grown from a village below the Indian stockade at Wall Street to its present size. So that there exist within the city limits now seven different kinds of civil courts and five kinds of criminal courts, in nearly each of which there is a separate set of rules, different customs, and distinct methods of procedure, and of them all the most technical and the most complicated are often those where they should be the most simple and easy of understanding.

Wherever the court may be the surroundings are substantially the same. The scene is laid and the carpenters have left. The spectators have found their places. The stage is empty however, there is a sudden bustle and shifting of feet, a rumor has gone abroad that something is about to happen. The court attendants take their places. One of them straightens up and with a commanding voice cries out: "Gentlemen, please rise. Hear ye, hear ye, all persons having business draw near and ye shall be heard." Enter his Honor, the Judge.

III

THE JUDGE

With a rustle of his gown and a bow to the court-room the judge takes his seat on the bench. The trivial pleasures of being heralded and having the spectators rise when he enters have lost their charm, but he would feel uncomfortable without them. The gray-haired clerk hands him the list of the cases for the day. The anxious court attendant asks if he shall open a window. The judge sniffs audibly and orders the steam heat to be turned off. The court attendant does so and brings his Honor a glass of water. When the judge sits down in the revolving chair he is on the bench and the court is in session.

The fact of the matter is the judge is a pretty decent sort of person. The trouble is that the surroundings are all against him. In the first place his whole job is one that makes him live up to a part. For five or six hours a day he has to sit still in a stuffy court-room on a leather chair under a silly canopy of wood or plush and pretend that he is the whole thing, that he knows it all, and that whatever he decides is absolutely right. Let him waiver or be uncertain in his decisions and woe is it to him. No one thinks much of a judge who does not know his business or at least does not pretend to know it.

How anyone who has been long on the bench can retain any sense of proportion is remarkable. Whatever he says and does in court is final and apparently approved. If his decisions are reversed they do not affect him seriously; he has tried so many cases that were not appealed, and the greater proportion of those that have been are affirmed. The reversal comes a long time after and does not hurt his feelings. In any event, he was trying to do the best he could and human nature may be fallible, although, as far as he can see, the whole world of the little court-room where he sits has conspired to show him that he is divinely endowed.

His position is not exactly one of bluff, but he is the central figure of the stage; like the actor's profession the judge's job makes him an egotist. Take for example the essential elements of his knowledge of the law. He is the _Jus Dicens_, the one saying the law, the name of judge being derived from the two Latin words. He is supposed to know the law, at least he ought to know court procedure, and the law of his State thereon by heart. In New York State, for example, the Code of Civil Procedure is five hundred thousand words long. He is bound to take judicial notice without being told of all the statutes of the State Legislature, which are being passed at the rate of six hundred a year.

He is also supposed to know the laws of the United States passed at Washington, and to be thoroughly familiar with the latest decisions of the Supreme Courts of the United States, and those for the past 125 years. He must understand and look as though he knew beforehand any decision of the courts of his own State cited, which are conveniently and neatly printed in 219 New York Court of Appeals Reports, 173 volumes of the Appellate Division Reports, and 96 volumes of the Miscellaneous Reports, to say nothing of the opinions and decisions of other courts that are not printed at all. His knowledge of the law is a fearful and wonderful thing; he must have an oceanic mind.

It is told that one of the leaders of the bar had formerly a young man in his office who with advancing years and reputation was elected to the bench. Before the first of January when he was to take his oath of office, the old employer and friend sent for him. When he arrived he was greeted as follows: "Joe, I've sent for you because I wanted to see you before you become a judge. I am very fond of you and I wanted to see you once again as you were, because after you go on the bench you are bound to become a stuffed shirt, for they all do."

That so many escape is one of the wonders of human nature. That they retain their humanity is due to a disposition of Providence to temper the wind to the shorn lamb. The position necessarily takes away all initiative. In politics the judge is recognized as being a "dead one." After a few years on the bench only the exceptional man can fling off the shackles of his profession and get back into real life. He ceases from fighting, he is not energetic.

As a good judge he must be firm but restrained. He may not be too emphatic. Every inducement is toward making him lazy, fat, and easy. Before him everyone bows and waits for him to speak. He is the absolute boss within the four walls of his court-room. The only restraining influences are the reactions from the lawyers and spectators who are before him. Their opinions can not be openly expressed; they are reserved until afterwards. If a judge really has any idea of the high esteem in which he is held, let him find out what is being said of him after the case is over, as the clients and lawyers are going down in the elevator, or what the rear benches have been whispering.

He probably has a suspicion of this, but no matter how tolerant he desires to be, there is the temptation to show that his authority is supreme; that when the lawyers begin arguing a point on which he has formed an opinion to cut them off; when the witness is trembling on the stand as to whether the accident happened on a Thursday or a Friday, to ask her, "Don't you know that Thursday was on the 16th of April last year," which of course she does not. There is the temptation to feel that he can never be wrong; that a question may be reargued, but that he is not going to change his opinion.

The possibility is that the judge is a mild sort of bully. But it is not always safe to go on the assumption that being a bully he is also a coward. He may be, but on a trial the odds are too much in his favor. If the lawyer wants to fight the judge, he has a great deal at stake; he may awaken so strong a prejudice that the judge knowing the rules of the game better than he does, may beat him on a technicality. On the other hand it is a mistake for the lawyer to be subservient and too cringing. Being a bully, the judge is apt to take advantage of his position. The best policy is to appeal to his human instincts as a man. He may be decent in spite of critics of the courts to the contrary notwithstanding. If he is kindly treated he will respond.

In New York judges were appointed until about 1846, when there was a popular upheaval and the constitution was changed, and they have ever since been elective, with the exception of some of the minor courts. The advantages of the two methods is an open question. The arguments in favor of appointment are that it makes for an independent judiciary and that it secures better men for the bench, whereas the other does not, because the highest class lawyer will not go through the turmoil and supposed degradation of a political campaign. These arguments are not sound.

The argument for the election of judges is that it keeps the bench more humane, modern, and in touch with the will of the people. The one is the aristocratic idea, the other the democratic. A court as at present constituted is an autocratic institution but the judges should be democrats. A feeling prevails that the man who has gone through a course of political sprouts involving the training of election campaigns, is more understanding of the wants of the people whom he is to serve, also that courts should be arranged on a business basis.

An amusing aspect of an elective judge is that he is in an anomalous position. If he plays politics, endeavors to make friends either by his decisions on the bench or obeying the mandates of a superior political boss as to appointment of referees and receivers, he immediately becomes a corrupt judge. The stench of his unjust decisions will sooner or later come to the nostrils of the community and his chances of reëlection are forfeited. He runs the hazard of charges and removal.

If, on the other hand, he forgets the organization that has elected him either in the matter of patronage or the refusal of some desired court remedy, and so conducts his court that there shall be neither fear nor favor, he is a political ingrate and deserves neither reëlection nor promotion. Of course these are the two extremes; fortunately human nature is not what the sociologists and political theorists would make it.

The political boss is not the unscrupulous ogre that the muck-rakers picture. He does not order the judge to decide the hundred-thousand-dollar-contract case in favor of his hench man. He might like to have him do so but he does not ask. Neither does the judge lean over backwards in the other direction and imprison the contractor because he is a friend of the boss. The movements for the non-partisan election of judge show the recognition of some of these incongruities.

The fierce bright light that plays about a throne also makes the judge conspicuous. If he sneezes, if he coughs, if he takes a glass of water he is probably feverish and cross. If he keeps still he is going to sleep and not paying attention. If he gets up or sits down it is noted as indicative of how he is going to decide the case. Every movement is watched. The position of a judge is not enviable. He is the concrete object to which the evils of the court-room attach. To the popular mind he is the court, the law, the method of procedure, the source of all the technicalities, and the delays. The beaten side will bear him a grudge, and the winning side think they ought to have got more.

If he be lenient in interpreting the law, he may be called to account for inability; if he be too strict, he is accused of irritability. If he be too polite, he may seem to be extending favor. A justice of one court, wishing to be kind, once asked a young counselor whose case had been dismissed through a technicality to come up and sit on the bench with him. The young man afterward complained to his friends that the judge wanted to shame him and make him conspicuous.

There are few judges who dare to cut short the examination of a witness, although the length and direction of a trial are supposed to be within the discretion of the judge. He is hindered by the technicalities of those who insist, hoping for a reversal on appeal, and sometimes the same technicalities are used to prevent the actual facts being brought out. The solution probably lies in extending the powers of the judges over the conduct of a trial.

He has a position of interest and authority and one that commands respect. In England he dresses for the part in silk stockings and is next to the king in importance or about equal to a bishop. In Germany he is a little better than a Herr Pastor or a doctor, but inferior to a young lieutenant in the army. In France the salaries of the judges are pitiable. The highest, the president of the Cour de Cassation, gets $5000 a year and the lower judges only a few hundreds, with no possibility of earning anything by practicing law, but there the judges are persuaded to take out the balance of what they should have in salaries in the honor of their position.

We are so shockingly frank and matter of fact, that we believe that the conventionality of pomp and circumstance have been too much regarded in courts and court procedure, that dignity is not accomplished by wearing a wig, knee breeches, or gowns of ermine and silk. It is consistent with a plain-spoken people to feel a contempt for state and symbols. Any attempt to return to the conventionalities of Europe is met by the contempt of a democracy.

In rebelling at form we have been so occupied that we have not been awake to a change in substance that has been demanded by modern conditions. The courts are gradually reaching a simpler basis. Formerly they may have been surrounded by more pomp and magnificence, but the work is now being better laid out and the course of the proceeding is on more modern lines. Changes in practice acts will revolutionize trials. People smile at the dignity of their courts and judges. The modern spirit is for greater frankness, simplicity, and directness.

If he is a sane and reasonably simple man the judge tries to do his duty according to the light that is in him. He knows some law, has seen a quantity of human nature and passions flowing before him. The court-room, his position of authority, the respect of the community, the human drama, the abstract and intangible demand of something above the actual awakens in the judge that passion for justice which is a quality almost divine. The man himself becomes patient, understanding, and humane. Nearly every man, no matter how small he may be at the beginning, rises to the responsibilities of his position. So it is with the judge.

It is undecided whether the judge is entitled to more respect from the lawyers and laity or whether the laity is entitled to more respect from the judge. The judge sits indolently crumpled up in his easy chair; before him a leader of the bar is arguing. In an eloquent manner he is pleading for a young attorney who is about to be punished for "Contempt of court."

"And so your Honor will realize that in the heat and excitement of a trial, in the turmoil of the legal battle, in the intensity of a forensic struggle, the young man may well have forgotten the respect and deference which is ever due from a member of the bar to the representative of high-minded justice."

The judge seems unaffected by the appeal. The young man had been rude and impertinent, the fine of $250 must stand as punishment for his misbehavior.

Suddenly the pleader with a wave of his hand and a twinkle in his eye says: "Look at the difference between the position of a lawyer who, alert with restless energy, momentarily forgets his manners in fighting for his client, and on the other hand the calm"--pointing to the judge who is still half reclining in his chair--"the calm, I repeat, of complete judicial repose."

There is a smile through the court-room. The judge straightens up, sees the humor of the situation, and the fine is remitted.

There is a constant play of opposing influences upon the judge. As an upholder of the law he becomes a formalist and a reactionary. The insistent demands of humanity which the statute law can never satisfy, tend to make him a revolutionist. The saving element for him is that he is only a part of a system for which he is not responsible.

When the judge has had the list of cases for the day called and has disposed of the applications for adjournments, he turns to the clerk who begins to call the roll of the men who are to act an important part on the stage--the jury.

The solution of the matter so far as the judge is concerned is to give him greater power. Let him be absolutely responsible for the conduct of a case in court. His position should not be that of an umpire who remains quiet until a dispute arises, but rather that of a head enquirer into merits, assisted by the two lawyers and the jury.

IV

THE ANXIOUS JURY