The judge and the jury know that the lawyers are coming to life again and are not really trying to kill each other. This is one of the pleasantest aspects of the life in court. There is a good fellowship between the two lawyers who have been so keenly struggling. They even have a kindly feeling toward the judge when he is off the bench.

The court attendant calls the attention of the lawyer to the time, who with a sidelong look at the clock, also "Confidently leaves the case in your hands, gentlemen."

The two lawyers sit down and the judge puts on his spectacles, gathers up the notes he has been making of the main points of the trial, and turning to the jury begins his charge.



XIV

THE HEAVY CHARGE

No, madam, the charge of the judge does not mean his bill for expenses or his salary for trying the case. A charge implies something grave, heavy, and aggressive. It is what the judge tells the jury about the case. It is never light or humorous, but ponderous and hard to understand. The court-room doors are locked, no one must come in or go out during the charge.

The judge looks solemnly at the jury, the jury straighten up from the desponding attitude they gradually have assumed during the address of counsel.

The end is near and they begin to have hope. They appear interested and a gleam of awakened intelligence is in their eyes. Now at least they are going to hear what they wanted to know about the case. The judge will probably tell them something new and clear up the points they did not understand. It may be even he will explain why he made those strange rulings during the trial and what that mysterious conference was when he called the lawyers to his desk and they talked together for so long.

The judge begins: "Gentlemen of the jury, the plaintiff in this case seeks to recover," and then he goes on to tell them what the plaintiff wants, which is just what the plaintiff's lawyer has been telling them. The judge must have been asleep while he was talking for he is saying the same thing over again, only in a little different language. After that the defendant's case is set forth. There again that is what the defendant's lawyer was saying. It does not appear reasonable that they are compelled to hear six times what the case is about. There were the two openings of counsel at the beginning, the two summing up at the end, and now the two explanations of the judge. There ought to be an allowance made for the jury possessing a little intelligence.

The judge then tells again what the witnesses have said, in not quite so many words, but covering the main points. There is no use in that. The jurymen think they ought to remember fairly well what was said. The judge admits it after he is through by saying himself: "Gentlemen, you are to be governed by your own recollection of the testimony rather than by what is said by either side in summing up or by the Court." If he means that he should have kept still and let them have their own recollection.

Then he goes on: "If you believe any witness has wilfully testified falsely as to a material fact, you may disregard that witness's whole testimony." Of course, is that not the reason for their being there? Why, the judge in the beginning made them swear to decide the case "according to the evidence." The jury is going to do exactly that. They are going to decide which side is lying and which side is telling the truth. They are not quite so stupid as not to know that. There seems no need in insulting them by telling them that they need not believe a witness unless they want to. Why are they there?

The judge tells them that the function of the jury is to decide the facts and for him to decide the law. That is fortunate, for they could not understand the law, even if they wanted to; it is a silly business and it is not common sense. What the jury feels is that the judge's charge is leaving it to them without any trouble about the law. But wait a moment, the judge is going on to tell them about the law as applied to the particular facts before them.

The important principle of law they are being told is what is known as the preponderance of evidence and the burden of proof. The judge goes on at great length about the weight of evidence. The weight of evidence, he says, is the preponderance of proof and the preponderance of evidence is the weight of evidence, and the man who has the burden of proof must have the weight of evidence and the weight of evidence being the preponderance of evidence is also upon the man who has the burden of proof. And the preponderance of evidence does not mean proof beyond a reasonable doubt, as in criminal actions, but that the proof must be heavier on one side than the other and the one who has the burden of proof must sustain the preponderance of evidence. That is the law; the judge has said it. What it means the jury give up. The lawyers nod their heads wisely. The judge has stated the law correctly.

The judge may go on a little further and tell them more about the burden of proof and the preponderance of evidence. He may say that the weight of evidence does not mean the number of witnesses. The mere fact that one side has six and the other side only two does not mean that the jury are to believe the side who has six. The jury know that when probably they are all exaggerating somewhat they are going to decide the way the thing happened. Then the judge tells them, having seen the witnesses, "That they may consider their bearing on the stand and their manner of giving testimony." Surely they are going to do that. Is not the best way of knowing whether a man is telling the truth to look at him and watch him while he is talking? There is little sense in the judge advising them to consider his bearing on the stand.

Another thing the judge says is that they are not to be governed by sympathy or prejudice in arriving at their verdict. This is a caution that the judge thinks necessary. He forgets that when they are in the jury-room, with locked doors and no one to disturb them, they are going to do exactly as they are inclined. Prejudice and sympathy are for unintelligent people who do not know what they are about. Both lawyers have been telling the jury what intelligent men they were and it seems unnecessary for the judge to say that they are not to be governed by prejudice and sympathy. Suppose the defendant is a rich corporation, they are not going to find against it because it is rich. The company can stand the loss of a few dollars out of its pocket better than the poor man anyway. Not that they are going to decide for that reason.

As these accumulating evidences of the judge's misunderstanding of their attitude of mind pile up, the jury sink back into their seats. After all, the charge of the judge is not more understandable than most of the other parts of the trial. The saving point about it is that the end is drawing near and they can soon get away and have a smoke in the jury-room, and afterwards go home.

The judge, while he is charging, understands a little of what has been going on in the jury's mind. He has seen the gleam of interest which was in the jury's eyes at the beginning gradually die out. He notices how they fall into resigned attitudes. He has a glimmering that the good old legal aphorisms which he has been enunciating with such care about the burden of proof, the weight of evidence, the credibility of witnesses and the caution about sympathy and prejudice, are not very convincing to the jury. But the conventions require that he must go on.

"Gentlemen," he says, "I must instruct you to eliminate from your minds any discussion of counsel upon questions of law or rulings of the court upon the rejections of testimony, or decisions upon motions to dismiss or direct. They involve matters of law with which you are not at present concerned. In arriving at your verdict you are to consider only the evidence."

Perhaps the judge feels a trifle foolish and therefore he becomes more emphatic and solemn. He carefully and in a painstaking manner defines the law of negligence. He tells them the law of negligence involves two cardinal principles. "The first is that the plaintiff must establish that the defendant by its employees was guilty of negligence, that he failed to act as a prudent and careful man; second, that the plaintiff must have shown himself free from contributory negligence; that unless the jury find both of these, that the plaintiff cannot recover." Then perhaps he interjects a little more about the balance of proof as to these particulars. "If the jury find the plaintiff was negligent and the defendant was negligent, they must find a verdict for the defendant. If they find the plaintiff was not negligent and the defendant was negligent, then they may find a verdict for the plaintiff, provided they find, etc., etc. Otherwise should they find the plaintiff was not negligent and the accident happened not through the negligence of the defendant, then again must they find for the defendant, or again—" but the jury by this time is exhausted. The alternatives do not interest them. The judge may know what he is talking about, but they do not. The interesting question is how much are they going to give the plaintiff.

The judge finally becomes worn out, a kind of self-hypnosis sets in. He remembers so many phrases and legal maxims that he might enunciate, his brain becomes confused as to selection. There are volumes of charges to juries which he has more or less learned by heart. There are so many glittering and vague generalities about the law of negligence, the law of contracts, the law of evidence, the burden of proof, or the weight of testimony, that he could go on indefinitely. The jury have ceased to understand and the judge realizing the hopelessness of this situation, winds up by saying—"So, gentlemen, bearing in mind what I have just told you and the evidence in the case, you will retire and consider your verdict."

The jury begin to gather their hats and coats, when up jumps one of the lawyers and says: "One moment, please. I ask your Honor to charge that if the jury find the cow that was in the plaintiff's garden was a white cow and not a red cow, then their verdict must be for the defendant." "I so charge," says the judge. "I except," says the other lawyer, "and I ask your Honor to charge the jury that if they believe the cow was the property of the defendant, their verdict must be for the plaintiff." "I refuse to charge in those words," says the judge, "there may not have been any cow or he may not have eaten the cabbages." Or the lawyer for the railway may ask the judge, "That if the jury find that the driver was forty feet away from the tracks and the car was a hundred feet away from the corner of Seventy-eighth Street when he first saw the car, and the car was going at a rapid rate and the conductor pulled the bell and the driver was sitting on the right-hand side of the wagon and might have seen the car had the car been one hundred feet below the corner, then in that event I ask your Honor to instruct the jury that the plaintiff was guilty of contributory negligence and cannot recover."

The question is undoubtedly a poser. The judge is evidently worried; if he make a wrong guess and says "yes" or "no" at this juncture, the appellate court may say: "Error, judgment reversed, new trial ordered." What happens is that the judge takes a chance. The lawyer says, "I refer you to 169 New York Court of Appeals Reports, page 492; in the case of Jones vs. Metropolitan, the court there said that the refusal to so charge was reversible error." The judge looks wise and finally says, "yes." There is a little playing of politics in this; he has possibly been thinking how the jury are going to decide and realizing that what he charges won't make any difference, he plays safe by charging what the losing side wants.

These requests to charge may go back and forth indefinitely with rulings and exceptions. Either lawyer may except to a portion of the judge's charge, thus serving notice upon him that unless he hurry up and change it he may be reversed on appeal. That is the reason why the charge of the judge has not a great effect. He has to be too careful.

In New York State the judge can not say what he thinks about the case. In other words, the charge must be indefinite. In England and the Federal courts in this country, the judge may legally express his opinion as to how the case should be decided, but that is as far as he can go. The distinction is a relic of the old days of the jury system when the judges would imprison the jury until they found as was wanted. Now the judge may only express a preference and the jury may do as they please. In some courts the democratic idea of the independence of the juryman goes to the extent of not allowing the judge to say anything specific.

The result is that the jury are confused. They are usually of so independent a nature that the judge's charge would not greatly influence them. The clients sit by utterly confounded; they hear the judge wisely say, "I think perhaps yes, but on the whole it may be no," and when he is through, not understanding as much as the jury, they think the judge's charge is very fair. Having said little of import it probably is.

The continental method is so entirely different, that it is shocking. In the courts in France the judge practically says for his charge, "You've heard the evidence, now go on out and do what's right." This again illustrates the difference between the old and the new ideas of courts. The old is a battle ground where the issues are defined, the courts are kept within narrow limits and the rules of the ordeal observed strictly, and the modern, merely an investigation of a dispute with the glamor of a contest left out. It is an investigation of facts, which however bitter may be the personal animosity, should never lose sight of the main idea of arriving at the plain truth, in a common sense way.

At last the lawyers are silent, the trial is over, the judge patiently asks are there any more requests to charge, and there being no more, he turns to the jury and says, "Gentlemen, you will retire and consider your verdict." Slowly they file out, conducted by the court attendant, to the jury-room.



XV

THE TRUE VERDICT

The truth is said. The battle is over and the mighty have prevailed. The decision is made. Justice divine and compelling is about to pronounce its sentence. The truth seeks to burst forth and the jurymen have knocked at the door of the room in which they have been locked for so many hours. The court attendant, who has been standing like a sentinel outside to prevent the approach of eavesdroppers and listeners, turns the key and sticks his head into the room, withdraws, locks the door again, and sends off for the judge.

The judge has been in his chambers taking a rest and enjoying a cigar. The judge always, when he is off the bench, is by courtesy said to be in chambers—other people might call it a room with an office desk, but the dignity surrounding a judge invests even the bare office room where he sits. It is named in the plural, even if it is only one ordinary room. He throws away his cigar. The lawyers or their assistants who have been lounging about the empty court-room, gossiping with one another and trying to evade the importunities of their clients, who insist upon speculating with them on the probable result, have been summoned to the bar. The judge takes his seat on the bench. The jury, marshalled by the court officer, file in. They are lined up in the jury-box.

"Gentlemen," says the judge, "have you agreed upon a verdict?" "We have," answers the foreman of the jury.

When the jury have first been locked in the jury-room they have probably immediately relaxed after the long strain of the trial. They were entitled to a smoke and to feel at their ease. Besides they know that if they finished their deliberations too early, they will be called on another case. It was nearly two when the judge finished his charge, so they have plenty of time to waste; for if they came back to the court-room before three they would be impaneled in another trial.

They have taken a straw vote to find out how the sentiment stood, not with the hope of arriving at a decision but by way of trying out the matter. The result stands nine for the plaintiff and three for the defendant. They light their cigars, for they came well prepared for the tedious hours in the jury-room.

The nine men look at the other three in disgust, the three look at the nine with contempt and then they begin to argue. The deliberations of the jury are always secret, their method of procedure is uncertain, and only the result of their deliberations appears in court. Nevertheless, it is only reasonable to speculate on how they have arrived at their verdict. Their verdict is the climax of the drama, the goal of the race, the award of victory. One side must win and the other be defeated. The psychology of the jury in reaching the verdict is the great mystery and the most intense interest of the trial. The judge does not know, the lawyers are unable to understand. There is a certain respect for the inviolate privacy of a jury-room. If trial lawyers could understand the method by which they arrive at their final announcement they would be far better equipped than by a study of the law for many years.

It is a question whether or not their actions are different from those of ordinary men outside a court-room. They have left the restraining influence of an uncomfortable and conspicuous position and have entered again into the attitude of mind of the everyday world. The control of the judge has disappeared. The lawyers are only memories. They have become only plain business men with something definite to do. They do not know how to do it and the discussion begins in a desultory way.

"Well, we ought to give that boy something."

"I don't like the looks of that last witness."

"That lawyer for the defendant was too smart."

"But do you think the driver tried to cut him off?"

"He couldn't have been in bed six weeks."

"No man would stay in bed that long with a sore knee."

"Oh, well, he only meant he was about the house."

"That doctor was a great one. He loved to get off those terms; he must be just graduated from the hospital."

"Did you hear the lawyer say in a case he tried in Brooklyn he had seventeen of those experts?"

"Well, let's take another vote and see if we can't get together."

"I can't stay here all day. I've got to close something important at four o'clock."

"You'll stay here if you have to; we want to get this settled right."

Another vote is taken. The result is the same and the two sides gradually assume opposing positions. Each one takes a leader and spokesman; the discussion is probably between those two and an occasional interjection by the others. By this time the argument has grown tense and after half an hour the original arguments of counsel, the evidence, the instructions of the judge have become merged in the minds of the jury with what has been talked of in the jury room. The recollection of each juror includes the recollection of the discussion that they are having. The mental picture is now a combination of what each witness thought, each lawyer conceived it, how the judge described it, what they imagined it during the trial, and added to the mental concept is the recent present struggle between twelve points of view.

They do not remember what it was the judge told them about their verdict. Suppose they send out and ask him. No, they do not want to appear like fools. It is plain. Their verdict must be for the plaintiff or the defendant. But in that contract case where the other side wanted something back from the plaintiff, how are they going to find a verdict for both? They can't find a verdict both ways. They had better send out and ask the judge. No. Well then they will send for the pleadings, they will show.

"What," says one juryman, "do you think those pleadings would show anything a reasonable man could understand?"

They decide that there was a bill that told the story. They knock on the door. The court attendant opens it. They explain, he gathers in the lawyers, and they go to the judge's desk. There is a thrill. The jury have agreed so quickly it must mean a verdict for the plaintiff. If they had been out longer it would have meant there was a disagreement or a verdict for the defendant. The longer the jury stays out the better for the defendant thinks the lawyer. But the actions of the jury are uncertain and there may be no rule of arriving at their decision.

There is the story of the judge who, after the jury had been out for a long time, made a bet with the stenographer as to how the jury were going to decide. The judge thought himself an expert in determining the probable verdicts of the jury. After they came in and announced their decision and were discharged, the judge having lost looked crestfallen. The stenographer smiled. Then the judge recovered himself.

"You win," he said, "but the next time you and I bet on a decision it is going to be one of our cases without a jury."

The attendant asks for the bill and returns to the jury-room. The court falls into a lethargy of waiting. The jury, having their information, go on with the discussion, probably on the following lines.

"Sure, I told you the silks were worth four hundred dollars."

"Well, I know those kind of people; they are small people and they never did that amount of business in all their lives, let alone one month." Or,

"Don't you know that neighborhood; all the cars speed up whenever they get there."

"Why, yesterday I was getting off a car and the conductor pulls the bell, etc., etc."

"No, I ain't prejudiced against the railroad; I ain't got nothing against the railroad."

"Of course, we ain't going to decide this case on sympathy or prejudice. But that boy's Irish and he looks like he come of good honest people."

"Vy, I don't see no difference whether he is Irish—or Yiddish; vot ve vant is justice."

"Now see here, my friend, if you think you're going to make this a racial matter you're mistaken. Just because that boy's Irish you needn't think he ought not to get nothing. You're prejudiced, that's what you are."

"Oh, let's get down to the evidence anyway; what we want is to decide."

"Vel, the motorman vas Irish, vot you talking about?"

"Sure, but he had to say what he did. Didn't he have to hold down his job with the company?"

The rest of the jury sink back resigned and despondent. They will never get out. One of them ventures.

"The judge told us that the law was—"

He is interrupted.

"Oh, we don't care so much about the law. What we want to do is to do what is right."

Somewhere, somehow, and by non-understandable methods the verdict is reached. If the jury ask for further instructions, they file back into the court-room and the judge proceeds to elucidate the hidden mystery of the law in much the same manner he did in his charge. They return again not satisfied, and take up the discussion.

The most dramatic moment in the trial is when the officer comes in and announces the jury have agreed. While they slowly file in, the prisoner or the parties watch them with soul-tearing eyes; the lawyers with anxious expectancy. There is an electric thrill in the air. In some mysterious manner their verdict becomes known before the foreman speaks. Call it thought transference, mind reading, or what you will, there is a quick understanding from their faces, their manner of walking in, and their final pronouncement is only a confirmation of what was expected.

The jury has spoken, the lawyer who has lost moves to set aside the verdict. The jury looks startled. Is it possible that after all that trial and all that deliberation the judge is going to upset it again and have the long trouble gone over. The judge denies the motion or takes it under advisement. Only on rare occasions does he set the verdict aside then and there. The verdict must have been outrageous, absurd, clearly a compromise, or absolutely and shockingly against common sense. The theory of the law is that the verdict of a jury is a final judgment on the facts by the best judges of the facts. It will not lightly or for small reasons be interfered with.

The question of belief in the jury system is one of the most futile of all large questions. In the first place, jury trial is so deeply engraved in the constitutional bill of rights that one might as well ask: "Do you believe in citizenship?" "Do you believe in the United States of America?" Secondly, trial by jury is so completely involved in the present system of court trial and procedure, that they are inseparable. The evils of the whole attach to the part and the beneficent aspect of the courts pertain equally to jury trials.

Coming down to a concrete case and leaving the abstract principle to the theorist, there are certain obvious things to be said for and against jury trial. The jury represents the opinion of the common or ordinary man—the vox populi. Twelve men picked at random are probably neither all capitalists nor all laborers. They are made up of a few of both, but the majority, if not all, are the small tradesmen or the great middle class. These men are not ignorant, prejudiced, or unintelligent. They have a limited experience, but their judgment is the judgment of mediocrity and mediocrity is what is wanted. The professional man, the expert, the specialist is needed for the special degree of administration, but for the determination of the actual right and justice, what is needed is the instinct of the ordinary man,—the plain ordinary common sense.

When the criminal says: "I stand a better chance with a jury"; when the civilian says: "If I had the wrong end of the stick give me a jury," he is appealing not to the wrong side of the jury system, but to a quality which is not always recognized.

Law is an exact, definite statement of principles, absolute and apparently immutable. When a man on the street walks up to another and wantonly insults him, the law is, that the insulted party must turn and walk away. If the matter came before a jury they would never convict him for knocking the other down at once. The jury system is the mitigation of the law.



XVI

LOOKING BACKWARD

Extracts from the Graduation Dissertation of a Columbia J.E. upon receiving his degree of Juridical Expert in 1947.

Historical investigation of obsolete customs is of little value beyond preserving some record of what may soon be forgotten.

In the year 1947 it seems almost unbelievable that the universal use by the public of Judicial Corporations should have been a matter of such recent economic growth. It is interesting to trace their development and the social causes from which they sprang.

The efficient administration of these co-operative Corporations being demonstrated by their financial success, makes it unnecessary to dwell upon the details of their intensely developed organization. Existing as they do upon so broad a comprehension of the whole commercial and social structures, it is little wonder that they have proven their value to the community. Their highly specialized departments of Issues, Investigation, Statutory Law, Records, Determination and Results correspond in a measure to the former method of procedure in the extinct courts of law and equity. Times have indeed changed.

The analogy between the present methods and the antiquated and conventionalized customs of those cumbersome and inadequate institutions is not difficult to find. The department of Issues, for example, corresponds to what was known as the pleadings in an action. These were formerly bits of paper governed as to form by inflexible rules, instead of the efficient method by which under the trained managers of able minds the matters in dispute, either of fact or law, are now narrowed down to exact points of difference. Naturally the methods of their managers being untrammelled by outside rules and they being men of wide experience and tact, the work of this department is not as difficult as at the first commencement of Judicial Corporations was anticipated.

The departments of Investigation and Experts correspond with the former division of court trials known as evidence and testimony. Any explanation would be futile of this branch of a forgotten formalism. The ancient rules of evidence and court procedure could only be understood by contemporaries and an extensive research has failed to disclose very clear concepts even by them. The modern methods of the departments governing the ascertainment of facts, either through the experience of the departmental employees or the efficient work of trained investigators, have naturally been much aided by the invention of the Viviphone making all communication adequate and easy.

The departments of Statutory Law and Records even yet retain certain characteristics of a period when judicial officers and clerks represented to the public mind the embodiment of what was known as "Red Tape," a true colloquialism descriptive of the attitude of official conservatism. These departments being governed according to the latest bibliographical methods are of merely supplemental value as reference. The Simplification and National Unification of Federal and State statutes has, of course, added greatly to the facility of this branch of the business.

The Determination and Result departments at first were thought to be of primary importance. Corresponding as they did in their functions to the former exclusively judicial qualities of the courts and the final judgments thereof, the exaggerated import previously given to those functions pre-supposed an equal necessity in this subdivision of the management of the corporation. This proved to be incorrect. It was found that after a careful framing and narrowing of the matter in dispute by the Issues department, and a thorough and careful sifting of facts by the Expert and Investigation departments, the dispute gradually, if not wholly, disappeared. Men of the highest character and calibre being employed at large salaries as heads of these departments, have given adequate satisfaction, as has been proved by the prosperity of the Corporations. The recompense of the heads of these various departments, requiring as it does men of the greatest commercial understanding, is said to be in some instances fabulous.

In the early quarter of the present century and indeed in the latter part of the nineteenth, the undercurrents of many movements were already stirring the surface of the placid stream in which for so many centuries had been flowing the course of justice. Those curious relics of a medieval, age, the law courts, still at so recent a date, retained many of the forms, characteristics, and usages of a time when knights fought in plate armor and indulged in the mimicry of battle, urged on by the glamor of chivalry. The very terms and the legal phraseology of the period implied the jousts, tournaments, and ordeal by battle of a romantic and self-deceptive age.

The universal world war that resulted in such an immense change of social and economic values contributed naturally to the destruction and abandonment of old forms and structures. Yet even before the war and the economic revolution that followed so quickly thereafter, the tendencies toward a more sane treatment of the question had already begun.

Like the extinct class of so-called physicians and doctors, who have now been amalgamated by the Public and Private Health Corporations, what was known as the legal profession or men known as lawyers and judges, had been gradually losing their characteristics as a class and had been step by step merging into men of business.

One of the earliest changes was the disappearance of the lawyers known as the real estate lawyer. Up to about 1890 there still remained members of the legal profession who made a livelihood out of the examination of the titles to real property. The obvious advantages of a comprehensive title examination plant by large corporations known as Title Insurance companies soon eliminated this particular subdivision.

The next important change arrived in a curious manner under the cry for what was then known as Social Justice—a vague term which was then advocated by many so-called "reformers" and ignorantly opposed by the capitalist class, without any very clear understanding of what was meant. So little was realized of the economic and efficiency values of insurance against chance, that the beginning of the movement was opposed. The movement resulted in certain obvious changes which looking back upon them seemed inevitable and natural. This was what was known as universal Employers' Liability laws. The principle soon extending itself to all classes of accidents, resulted in the passage of legislation which had been foreshadowed by the tremendous growth of Casualty and Accident Insurance companies. Beginning at first with laws holding the employer liable for accident, and afterward resulting in the insurance of labor, it was gradually extended to accidents of every nature, including injury from travel on common carriers and the ordinary vicissitudes of life.

The result of State insurance against negligence and injuries of every kind was that all claims for injuries were adjusted by the State and the lawyers who lived by pursuing the neglect or misfortunes of others, gradually became extinct. A certain distinguished and conspicuous type was known by the term "ambulance chasers"—the exact derivation of the term not being now, in 1947, entirely clear but probably being related to some antiquated legal custom of succoring the wounded—very soon disappeared.

The cases that arose from all commercial disputes became less numerous as the more candid and intelligent dealings of the economic world awoke better and more honest business standards. But long before the disappearance of what was known as the commercial lawyer, there are evidences that the former courts of law, even before their entire abandonment, had fallen into a partial desuetude. Apparently disputes of large magnitude never reached the courts. And the legal standards enunciated by the courts were so entirely unrelated to the standards on which the actual commerce of the world was conducted, that resort was but little had to the arbitrament of the law of procedure in court.

The entire change of personal and domestic relations and the greater freedom from the institutionalism of semi-civilized communities, e.g., the abandonment of all restriction on divorce, naturally did away with the class of litigation that appeared in certain courts of law dealing with marital or personal grievances.

In regard to what were known as criminal lawyers and criminal courts, the different attitude which the public formerly had toward unfortunate sufferers makes the existence of such a class or such institutions almost unbelievable. As it is now inconceivable that we should throw into unsanitary jails men and women who are mentally or socially diseased, so is it hard to realize that during the unintelligent period of which we are speaking, nay for many centuries, there existed people who lived upon their misfortunes.

Naturally with the disappearance of litigation and lawyers the public no longer tolerated the existence of the judges or courts. For a few years they retained a hold upon the imagination of a small portion of citizens who entertained a sentimental regard for the State institutions of a civilization founded upon the unsound teachings of eighteenth-century doctrinaires.

The period of the abandonment of the old courts corresponded with the extraordinary development for what was called "moving pictures"; those pale, lifeless presentations without color, speech, or substance, at which the people of a benighted age gathered for amusement or entertainment! It requires imagination to conceive that people were unfamiliar with the ease of communicating with any place on the globe and reproducing exactly in form, color, and speech by turning on a switch. The observer of that age must have been shocked and surprised to find the solemn courthouses turned into what was known as moving-picture palaces or as community centers for dancing and social entertainments.

The change of class which the lawyers had gradually been undergoing to simple men of affairs was not so abrupt as that for the judicial officers, who were far removed from actual life. Various expedients were attempted by which they could be preserved as a class. Their former occupation being gone and the idea of pensioning not being satisfactory, as there remained a large number of younger men on the bench who might be of some value to the community, a system of court cafes was evolved. Even to-day it is fast disappearing and for the benefit of future generations it may be well to describe the last remnant of an institution that held its position in the social order for so long.

Human nature being always substantially the same, it was thought that its demands for the dramatic action and stress of battle should have some outlet. It was not thought wise to entirely abolish the arenas for legal disputes, although the present Judicial Corporations with their excellently organized departments were already rapidly destroying all litigation. It was felt that perhaps humanity demanded the bringing together of the two disputants so that they personally might oppose their claims to one another.

It now seems incredible, in view of the absolute simplicity of communication by Viviphone, that this should be thought necessary. The need for romantic expression seemed to demand the opportunity for personal presentment. The social workers who established these cafe courts, did not realize that with the growth of a more intelligent public point of view, the question of abstract justice was little more than an application of customs and social standards to particular facts; and that with the fall of the ideas of justice in the abstract, there also fell the appurtenances of justice.

It may here be noted that the learned treatise of Professor Humperdinck upon the recent discovery of certain statutes found among the ruins of the Great New York Explosion is mistaken. The figure which he described among others of the woman blind-folded and with an arm extended as though holding something, does not represent as he calls it, "The poor blind girl begging," but a figure of the Goddess of Justice holding the scales, who was so long worshiped.

The growth of the court cafes was made possible by the amelioration in the climate of New England effected through the alteration in the course of the Gulf Stream. The inhabitants became accustomed to spend more time in the open air so that the courts became popular. Existing as places for the display of eccentricities and the airing of personal grievances, they soon became extremely frequented as places of amusement.

Whenever any litigant felt that there was any matter in dispute which needed adjustment by some outside agency, he invited the other party to come to the court. The judges occupied the position of proprietors, maitres d'hotel, and waiters, whose business it was to make the courts as attractive as possible. As their salaries depended upon the amount of receipts and the courts were run upon a partnership basis in which all shared the profits, the aim of the judges was to draw as large amount of custom as possible.

The surroundings were in every way desirable. In the open air, under spreading trees with the sunlight filtering through the leaves upon the well-kept lawns, were spread tables covered with delicious fruits and every delicacy that the human mind could devise in the way of culinary delights. Rare wines, exotic flowers were constantly supplied in profuse display. Luxurious divans and reposeful seats were interspersed about. The most modern as well as the most famous musicians furnished exquisite music, while flitting about in neat white aprons partially concealed by their gently swishing gowns of black, the attentive justices anxiously tried to add to the pleasure and comfort of their customers.

With such temptations as these there was little wonder that the opposing party accepted the invitation to attend court. Witnesses and spectators crowded about, both on account of the novelty of the institution and the opportunity for refreshment and amusement. The aim of the judges was to incite the disputants to continue their disputes instead of trying to pacify them.

The more vociferous they grew, the more noisy and passionate they became, the better the crowds were held who came to observe the performance. It was upon this clientele and the sale to them of viands and comestibles during the dispute that the profits of the judges depended. So long as there was a serious and energetic struggle the spectators remained at the adjacent tables and trade was brisk. Whenever, however, the litigants came to a full realization of the absurdity of their position, either by the continued laughter of the spectators at the public airing of their private wrongs with which the public had nothing to do, or becoming tired of mere words and came to diminish the ardor of their combat, the crowd would begin to dwindle away. The judges quick to understand the loss of trade after vainly trying to induce the litigants to new efforts, would gently and suggestively push under their hands a pair of dice boxes or a pack of cards and the dispute would sometimes end upon the throw of a die or the turn of a card.

The reason that these court cafes have not long remained in vogue, was that all actual litigants soon became so sophisticated as they realized the enormity of the position and how unreasonable their conduct seemed to the average man. Public sentiment was naturally against such a waste of time and real performers became scarce. Several of the courts were detected in hiring false litigants as actors so as to draw the crowds. The performance not being genuine soon lost its interest. The patrons left them and many courts became bankrupt. So like their predecessors, those light-minded courts have practically ended.

THE END

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Justice to All

The Story of the Pennsylvania State Police

By Katharine Mayo

Introduction by Theodore Roosevelt

8th. Illustrated. $2.50

Theodore Roosevelt says: "It is a book so interesting and so valuable that it should be in every public library and every school library in the land." This State Constabulary in its romantic career has hunted down crime, made raids into "Black Hand" strongholds, protected lives and property from mob violence, and always risen to every emergency where nerve and swift action are required.

G.P. Putnam's Sons

New York London



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- Typographical errors corrected in text: Page 7: beween changed to between Page 21: psuedo-classic changed to pseudo-classic Page 173: frigthened changed to frightened Page 202: planitiff changed to plaintiff -

THE END