ii ftMericD^M HlliKili'i.i'tb ^^fliiUfciM'^VKi m '■I ;'! ' HHBwf^l'B CORNELL W LIBRARY Pfl iMi KF8720.W453" "■"""''"'' """'^ The man in court, 3 1924 019 175 177 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019175177 The Man in Court By Frederic DeWitt Wells Justice, Municipal Court of New York City G. P. Putnam's Sons New York and London Jibe "Knlcfterbocftet press 1917 Copyright, 1917 BY FREDERIC DbWITT WELLS 'Cbe IRnfclierliscIier Cress, View ]|2orfe MY FRIEND CHARLES E. GOSTENHOFER OF THE NEW YORK BAR IN ACKNOWLEDGMENT OF HIS AID AND SUGGESTIONS THIS BOOK IS DEDICATED INTRODUCTION nPHE author has tried to show the point -*■ of view of the ordinary man in a law court, as the various proceedings of a trial take shape before him. To the initiated, the whole book may seem too obvious; but it has not been written for them, but for those to whom these proceedings are unfamiUar. There are many who have a certain curiosity about the courts, and at the same time a real respect for justice, mingled with amuse- ment at the panoplies and antiquated forms of legal procedure. F. DeW. W. New York, January, 1917. CONTENTS FAGS Introduction Hi I. — A Night Court ... 3 II. — The Civil Court . . .21 III. — The Judge .... 39 rV. — The Anxious Jury . . -57 V. — The Strenuous Lawyer . . 75 VI. — The Worried Client . . 93 VII. — Programs and Pleadings . iii VIII. — Picking the Jury . . .129 IX. — Opening the Case . . -149 X. — The Confused Witness . . 165 XI. — Those Technical Objections . 183 XII. — The Movements in Court . 201 XIII. — Elocution .... 219 XIV. — The Heavy Charge. . . 235 XV. — The True Verdict . . .251 XVI. — Looking Backward . . . 265 I A NIGHT COURT A NIGHT COURT TN the Night Court the drama is vital and ^ throbbing. As the saddest object to con- template is a play where the essentials are wrong, so in this court the fundamentals of the law are the cause of making it an uncomfortable and pathetic spectacle. The women who are brought before the Night Court are not heroines, but the crimi- nal law does not seem better than they. It makes Httle attempt to mitigate any of the wretchedness that it judges; in many cases it moves only to inflict an additional burden of suffering. The result is tragedy. The magistrate sits high, between stand- ards of brass lamps. His black gown, the metal buttons and gleaming shields of the 3 4 A Night Court waiting police officers, the busy court officials behind the long desks on either hand teU of the majesty of the law. In front of the desk but at a lower level is a space of ten or twelve feet running across the court-room in which are patrolmen, plain- clothes men, detectives, women prisoners, probation officers, reporters, witnesses, inves- tigators, and lawyers. Beyond in the court- room a large crowd is on the benches. There are witnesses, brothers and sisters, friends of the prisoners waiting to see whether they go out through the street entrance or back through the strong barred gate seen through the door on the left. Also there are the "sharks" waiting to follow out the released prisoners, to prey upon them as the circum- stances may favor; and a number of curi- osity seekers watching intently. For them it can be nothing but a morbid dumb show, for they are so far from the bench that not a word of the proceedings covild be heard. Only once in a while the shrieks and impre- cations of a struggling hysterical woman as A Night Court 5 she is hurried out of court can enliven the scene. Fortified with a letter of introduction to the judge and a disposition that will not be too easily shocked at seeing conditions of life as they actually exist, the spectator may find his way past the policeman at the gate in the rail. It clicks behind him ominously and he wonders whether he will have difficulty in getting out. Finally through clerks and officials who become more kindly as they learn he is a friend of the judge, he is seated in a chair drawn up beside the bench. The magistrate is a hearty round- faced man who seems almost human in spite of his gown and the dignity of his surround- ings. The court looks different from this point of view and he may easily watch the judicial enforcement of the law supreme. The organization of these courts is simple. There are not many niles or technicalities. The judges are patient, hard working, understanding, and efficient. The trouble is with the laws they are called upon to 6 A Night Court administer: Laws which are as absurd, as farcical, and as impracticable as the plot of the lightest musical comedy. At first the visitor can hardly understand what is going on. A pale-faced man is in the witness chair, on his left a bedraggled little woman is standing before and below the judge, her eyes just level with the top of the desk. Clerks are coming with papers to be signed : ' ' commitments, " " adjournments, ' ' "bail bonds" ; others are trying to engage his attention. In the meanwhile the case proceeds. "I inform you," says the judge to the woman, "of your legal rights, you may retain counsel if you desire to do so and your case will be adjourned so that you may advise with him and secure witnesses, or you may now proceed to trial. Which will you do?" She murmurs something. She is pale- faced with sullen eyes, drooping mouth, an over-hanging lip. A sad red feather droops in her hat^ "Proceed," says the judge; and to the A Night Court 7 policeman who is called as a witness, "You swear to tell the truth, the whole truth mm- mm-mm — you are a plain-clothes man at- tached to the 1 6th Precinct detailed by the central office, what about this woman?" "At the comer of Fifteenth Street and Irving Place, " says the witness, "beween the hours of 10:05 and 10:15 this evening I watched this woman stop and speak to three different men. I know her, she has been here before your Honor. " "What do you say?" the judge asks the woman. She is sUent. "What do you work at?" "Housework, your Honor." "Always housework; it is surprising how many houseworkers come before me." She smiles a sickly smile. "Take her record. Next case," says the judge. Outside it is a cold sleeting night in early March. "Witnesses in case of Nellie Parrel," calls the clerk. Nellie Parrel stands before the desk beside 8 A Night Court a policeman ; she is tall with fair waving hair. She must have been pretty once; even now there is a delicate line of throat and chin. But her eyes are hard and on her cheeks there are traces of paint that has been hastily rubbed off. She looks thirty; she is probably not more than twenty. A callow youth, who seems pretematurally keen, swears that on Thirteenth Street be- tween Fifth Avenue and University Place the woman stopped and spoke to him; and he tells his story as though it were learned by rote. "Do you know the officer who made the arrest?" the judge asks him. " I do. " A suspicion arises that there may be an interest between the witness and the policeman. A dark-haired, smooth-faced woman who is standing by the prisoner says: "Your Honor, she's my sister. I'm a respectable woman, my husband is a driver. I have three chil- dren. It's disgrace enough to have the likes of her in the family. If you'll give her another A Night Court 9 chance I'll take her home with me; my hus- band is here and he's willing. " The accused looks down piteously. "Discharged on probation," says the judge, and the family go out/ "That's the third time that's happened to her," whispers a clerk. "Every time the sister comes up Hke a good one. " A horrible old woman with straggling gray hair, shrivelled neck, and claw-like hands grasps a black shawl about her flat chest. "Mary, " says the judge, "thirty days on the island for you." ' ' Oh, your Honor, your Honor, not the work- house. Oh, God, not the workhouse," and she is borne out screaming and fighting and invoking Christ to her aid. The judge turns and says in explanation, "an old case, an example of what they all may come to." A dark-haired little French woman, is brought in with crimson lips, bold black eyes, and expressive hands. A detective testifies that he went with her into a tene- ment house on Seventeenth Street west of 10 A Night Court Sixth Avenue. Charge: Violation of the Tenement House Law. "Qu'importe, " says the woman. "I go in ze street. I am arrested. I stay in ze house. I am arrested. I take ze room. I am arrested. Chantage — Blackmail. C'est pour rire. " Who are these women who are brought in a crowd together? One of them older than the rest is a foreigner plainly dressed in black silk with a gold chain. She does not seem particularly evil, but rather respectable. The others are in long cloaks or waterproofs hastily donned and through which are glimpses of pink stockings. They have hair of that disagreeable butter color which speaks of peroxide. There has been a raid on a west-side street of a house of ill repute. Some testimony is given and the older woman, the "Madam" is held in bail for the action of the Grand Jury while the rest are held for further evidence. The judge tells us there will probably not be enough testimony and they will be released in the morning. A Night Court ii But unless bail is found they will spend the night in cells. A nervous, excited woman comes in — two policemen are with her. She has been arrested for disorderly conduct on Sixth Avenue near Thirty-first Street. She has been fighting with a man who has also been arrested and taken to the men's Night Court. Hers is a hard, tough face of the lowest type. "Why should you try to scratch the man's face? What did he do?" the judge asks. "Is he your husband?" "My husband, your Honor? Yes, I guess you can call Al that. We lives up town and when I went out he says to me, 'Hustle, kid, you got to hustle, the rent's due and if you don't get the money I'll break your neck. ' The slob won't work. Well, a night like this you couldn't make a cent and I only had half a dollar and I wanted to get a bite to eat. I hadn't had a thing since four o'clock, and then I met Al going down Sixt' Avenue an' he tries to swipe me fifty cents off me and I was that wild I wanted to tear 12 A Night Court him. I'm sorry; I guess it was my fatilt. I don't want to see him jugged, so please let me off, your Honor, and I won't make no trouble." "Take her record," said the judge, "and hold her as a witness against the man. " A string of women are brought in for sentence who have been having finger prints taken in the adjoining room. The judge proceeds to impose sentences according to the previous records which are shown. Some of the women are those who have passed in front before. The little bedraggled woman with the red feather has been arrested seven times in sixteen months. Another has spent eight weeks in the workhouse out of a period of seven months; another has been sent already to the Bedford Reformatory; another has been twice to houses of reform. Before the judge gives his sentence he refers the prison- ers to the probation officer, who talks with them in a motherly way. After talking with the little prisoner she addresses the judge. "She says its no use, A Night Court 13 your Honor, she does not want to reform — it will not be worth while to put her on probation." "Committed to the Mary Magdalene Home, " says the judge, and the name brings a startling surmise as to what He of Galilee would have said. The foregoing is only a typical session of the court. Night after night, from eight o'clock until one in the morning, the scene is repeated. The moral effect and its reaction upon those who conduct the proceedings — the judges, officers, and the police, cannot but be deplorable; the evil done to those forcibly brought there could not be over-estimated. Substantially the law is that the women may not loiter in the streets nor solicit in the streets, or in any building open to the public. They may Hve neither in a tenement house nor in a disreputable house. The law makes it a crime for the women to walk abroad or stay at home. Their existence is not a crime, but only in an indirect way the law makes them outlaws. Anyone wishing to prosecute 14 A Night Court or persecute finds it easy to do so. The worst enemies of these unhappy women are to be found, curiously enough, among both the best and the most evil people in the community. The unspeakably depraved are the men who, either as procurers, blackmail- ers, or the miserable men who live on a share of their earnings. The excellent people who oppose any remedial legislation which might relieve the situation, seem equally respon- sible for the present condition, however well- intentioned they may be. One effect of the present system is the practically unchecked transmission of disease. A reform in this direction would not solve the basic problem, for there would remain full opportunities of blackmail and extortion, but it might still remove a menace to the health of the community which is probably more serious than tuberculosis. A statute to this end was enacted in New York State a few years ago: an act for the medical examination of the women. It was declared unconstitutional because of one A Night Court 15 •word. It should have read, ' ' the judge may ' ' ; instead, it read, "the judge must." Far more difficult to deal with is the opposition of the people who believe that the moral sense of the community would be jeopardized by any laws suggesting that prostitution is unavoidable. In ironic contrast to the failure of legis- lation to prevent the spread of disease, is the success of an ill-advised statute making adultery a crime. Under it, a married man having relations with a prostitute and the woman herself, are subject to criminal prose- cution. It affords a fresh field for extor- tion, how largely used it is impossible to say. The history of the passage of the adultery act presents one of the most ghastly jokes ever perpetrated by a State Legislature. For years such a biU had been introduced in the New York Legislature and had been passed by either the Assembly or the Senate without comment and then quietly killed in the other house. It was obvious that such a law could not be properly enforced and its 1 6 A Night Court blackmailing possibilities were manifest, yet no one, not even Governor Hughes, who was then in office, could be openly opposed to its passage. The tender morality of the community would not allow a public discussion. It was said, at the time, that when the representative of a society for the suppres- sion of vice called on one member asking him to introduce the bill, he declined to do so on the ground that he represented a Fifth Avenue District and it would make him too unpopu- lar among his constituents. When the bill had been introduced by another member and came up for final passage, it was decided, since Governor Hughes had vetoed many political bills of members of both houses, to put him in a dilemma. If the bill were presented to him he would have to sign an absurd statute or declare himself the friend of unrighteous- ness. He signed it and the bill became a law. Since its enactment there have been ridicu- lously few convictions under it. The successive carelessness, timidity, and A Night Court 17 levity of the Legislature is depressing, but there is an encouraging increase of interest on the part of the public. The average man is not merely interested in the problem; he appears to take the sensible view that the "social evil" is not so much a moral question as a condition, a problem to be met like other problems. We have become less concerned with the private morals of our fellow citizens than with their health, safety, and the pre- vention of unnecessary suffering. We per- ceive that the courts are only our agents and axe not directly responsible for what they do; they are following instructions given by our ancestors and which we have neglected to abolish or modify. The visitor leaves the Night Court with a strange sense of having his social values over- thrown. He feels almost sympathetic with the women whom he has seen. They may be offenders against morals and the social order, but they are human beings over whom the waters of civilization seem to sweep with relentless flood.. The frightful waste of life 1 8 A Night Court and energy seems inexcusable. And it is as though some null dam had burst and was flowing in a terrific torrent down a river bed along which a few are drawn white and drowned. The ordinary man knows that the women who go under are such a small proportion of those who escape, that it seems either a ghastly joke or a terrible tragedy. The whole paraphernalia of the court-room merely accents the contrast between those who are caught and those who go free. But aU criminal courts are always unpleas- ant. And humanity if seen only in the setting of a criminal trial would be a discour- aging object. Turning to the more civil court, we find an almost equal unfitness between the courts and modern conditions. II THE CIVIL COURT 19 II THE CIVIL COURT TN a twenty-four-story oflSce building, on a smooth gliding elevator, up seventeen stories, down a low-ceilinged corridor, past fireproof doors labeled: "Clerk's Office," "Judge's Chambers," "Witness Room," we find the typical modem court. The old idea of a very psuedo-classic courthouse on a placid village green to which the neighboring county squires have ridden, and where the jail is in the cellar and the town recorder in the attic, is fast disappearing. The old courthouse in the city, of red sandstone with battlements and turrets, minarets, and a clock tower, seems out of date. The white marble palaces of the higher courts wherein broad stairways, paneled 21 22 The Civil Court mahogany, stained glass, and soft noiseless, carpets giving an air of repose and refined ctilttire, are not altogether consistent with the modem spirit. The man on the street does not understand whether the marble statues on the roof are symbols of justice or late presidents of the United States. The usual courthouse of twenty years ago was a mixture of armory and Gothic church. In the larger courthouses where there are many terms or parts in one building, there is an air of confusion. Rotundas, corridors, stairways, and elevators are constantly filled with a moving crowd of lawyers waiting for their cases to be tried, clients who have had appointments, witnesses who have been subpoenaed to come to court and when they get there find it is not one court, but thirty. The latter are found wandering dazedly about asking anyone who will stop to listen if they know in which part the case of Martin vs. Martin is being tried. Lunch counters, telephone booths, and a feeling of awe are in the building. The Civil Court 23 What that terror of a court of law comes from is difficult to analyze. There is the impressive majesty of the law; always about a court is the inspiring sense of something more than human. Even an empty court- room is not as other rooms. Like an empty theater there remains an atmosphere of glamour, of mystery, and yet equally true there remains a substantial, strong odor of crowds. It is said that every theater retains its own peculiar smell. The scientific investigation of the psychology of odors is too subtle to be understandable. The question of analyzing the exudations of a nervous crowd seems interesting, but the remembrance of an anxious humanity is always present. In for- mer times the attendant placed a small bunch of herbs and aromatic flowers on the judge's desk, and glasses of the dried bouquets re- mained in a row for long periods. HygienicaUy considered the courts are unsanitary. If the windows are opened the cold air is apt to draw directly on the heads 24 The Civil Court of the jury and the stenographer. In summer the noise of city streets, the cars, the ele- vated, the cries of children, the hand-organs, the flies, are not at aU conformable to the supposed dignity of the court. It is well- known that the crowded and unhealthy condi- tions of the courts are conducive to disease as well as discomfort to the inhabitants. I The connotations of the name court are generally impressive. There is the sug- gestion of jail, of punishment, of something final, of absolute judgment. Also it suggests the courtyard of a tenement house, an alley- way or something shut in and confined. The philology is from the old French cort or curt. It is curious that it means something narrow. There are the suggestions of the lists, of heralds, of trumpets, of banners and knights in armor, of prancing steeds, of fair ladies watching, of joust, tournaments, and trials by battle. There is something royal about the word. We think of pomp and magnificence and purple robes, of kings on their thrones, with courtiers standing about. The con- The Civil Court 25 ception of Diety to the simple man who visualizes, immediately takes on the form of a court. We speak of the Courts of Heaven. The pictures of Godhead represent him as sitting in the center on his raised throne with the surrounding tiers of atten- dant angels. The modem court-room is only an adapted continuation of a medieval idea. On the raised dais under an unsanitary and dusty canopy of green plush sits the judge; instead of a sceptre he holds the gavel. This gavel, by the way, is falling more and more into disuse. As a symbol of authority, a little wooden hammer has become a trifle ludicrous. If a judge were to shake it too violently there might be a fear on the part of those watching that he was about to throw it at the spec- tators or at one of the arguing lawyers. The judge sits at an imposing high-railed desk with standard lights at either corner. The top of the desk is usually above the level of the eyes even of the lawyer stand- ing. This is an arrangement which is con- 26 The Civil Court ventional and convenient; it would not be consistent with the majesty of the law if the judge should be discovered writing a personal note or taking a glance at the stock market reports in the evening paper. The judge's chair is ordinarily a revolving one with a dip backward. Stationary chairs are trying, for those who have to remain quiet for so many hours at a time, and the swinging back and forth and twisting about gives a little relaxation. In front of the judge's dais are the counsel- ors' or lawyers' tables, and at one side in front and below usually another table for reporters. It is somewhat like the arrange- ment in baronial halls where there was an upper and lower table and some sat below the salt and others above. On one side, opposite, but not as high, is the jury-box. This is a pen with twelve seats within a high-sided inclosure like an old-fashioned pew. What the object of the inclosure may be is uncertain, unless it is a relic of a time when it was necessary to The Civil Court 27 imprison the jurors. Jury duty has doubt- less always been arduous and disagreeable, and in earlier days men were probably as anxious to escape serving on the jury as they are to-day. In one of the courts, which was not supposed to be for jury trials, twelve men once sat on a case without any jury-box in plain chairs and at the side of the room. They were extremely uncomfortable themselves; their legs were exposed and they seemed shockingly unconventional. 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 protect- ing the witness that exists in the minds of the judge and jury. There is a natural sym- pathy 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 28 The Civil Court 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 posi- tion, 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 Civil Court 29 the customary effects of all secure and sal- aried 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 in- quiries, people talking or arguing, little dis- orders pirrsue 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 30 The Civil Court 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 inequal- ity 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 pick- pocket goes to prison. Cases are cited where the rich woman returning from a debauch of European shopping with a few thousand dollars' worth The Civil Court 31 of pearls sewed in the lining of her winter bonnet is only fined, whereas the Uttle mil- liner 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 iU 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 tmexplainable. 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 32 The Civil Court 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 The Civil Court 33 suspended sentences or light fines, of whom nothing is heard, but these three are con- spicuous on account of their wealth, and the cases of the milliner, the mushroom ven- der, and the peddler are reported for the same reason — of being conspicuous. They are un- usual 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 can- not let him off. If, for example, a poor man who is undoubtedly insane, commits a mur- der 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 34 The Civil Court is bound to bring him to trial. Public at- tention 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 patch- work 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 The Civil Court 35 separate set of rules, different customs, and distinct methods of procedure, and of them all the most technical and the most compli- cated are often those where they should be the most simple and easy of understanding. Wherever the court may be the surround- ings 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 com- manding 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. Ill THE JUDGE 37 Ill THE JUDGE T A /ITH 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 attend- ant asks if he shall open a window. The judge sniffs audibly and orders the steam heat to be turned oflE. 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 39 40 The Judge 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 stuflEy 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, The Judge 41 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 pro- cedure, 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 deci- sions of the Supreme Courts of the United 42 The Judge 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 conven- iently 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 The Judge 43 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 htimanity is due to a disposition of Provi- dence to temper the wind to the shorn lamb. The position necessarily takes away all ini- tiative. 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 re- strained. He may not be too emphatic. Every inducement js 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 spec- tators who are before him. Their opinions can not be openly expressed; they are re- served until afterwards. If a judge really 44 The Judge 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 i6th 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 noticing 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 The Judge 45 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 notwith- standing. If he is kindly treated he will respond. In New York judges were appointed until about 1846, when there was a popular up- heaval 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 ijiethods is an open question. The arguments in favor of appointment are that it makes for an in- dependent judiciary and that it secures better men for the bench, whereas the other does not, because the highest class lawyer 46 The Judge will not go through the turmoil and supposed degradation of a political campaign. These argtiments 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 shovdd 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 obey- ing 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 The Judge 47 later come to the nostrils of the community and his chances of reelection 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 reelection 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 pictiire. 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-partisa