different material but it can easily defeat good results from capable officials. In the judicial field minute and rigid procedure only serves to multiply litigation and make it a matter of form rather than of substance.

The real check upon abuse of power and failures of omission must come from enlightened public opinion. The field of the local judiciary is ideally subject to the discipline of public opinion when adequate power and freedom exist. It has the further discipline afforded by the bar and that arising from the right of the disappointed litigant to have a higher court pass upon his cause.1

1 Readers are referred to Bulletin VII-A, American Judicature Society, for a draft of an act to establish a county court system as projected above, and to make it a coördinate part of a unified state court system. The only state in which a serious effort has been made to improve inferior courts in rural districts is New Hampshire. See Laws of 1913, chapter 169.

A JUSTICE FACTORY

BY FREDERICK D. WELLS,

Justice, New York Municipal Court; Author of The Man in Court.

When the second-story man receives a fourteen-year sentence on his third conviction for burglary, he cries out that he has not had justice. When the stout lady loses her case against the trolley company, because she is guilty of contributory negligence, she says that there is no such thing as justice. For justice in the abstract is nobody's concern. Even the social economist talks too much about justice. The terms, "justice and the law," "the value of precedent," "the formulae of equity," "the social value and scope of courts," are abstract phrases which seem more appropriate to an eighteenth century school of thought than to modern conditions.

The concrete question is, "What is the demand and what is the supply?" The demand is for the settlement of civil disputes and for the punishment of the community offender, and the supply, the court machinery to meet it. It is not proposed to deal with the first, but the second. The separation of substantive and adjective law throws an interesting sidelight on court procedure. At first sight they seem to be inextricably mixed and the law used in finding out what happened often overshadows the real or substantive law.

There is a subtle humor in calling the law of procedure adjective or modifying. It is as though one were saying that possibly the adjective law might modify or materially change the substantive law. This may account for the reason that the courts are credited with not doing justice. It may be that they are more occupied in modifying than in applying the real law.

Substantial justice should be the same as the actual law, and actual law is the expression of the common sense of the community. This common sense is continually changing with changing conditions. If courts of justice were readily adjustable to social conditions, there would be no complaint about the courts. But the point of difference between substantial justice as applied in the courts and the common sense of the community, is the question of procedure. The courts in applying common sense to particular facts have necessarily formu

lated rules and methods of application. By the time these rules are successfully working the substantive laws themselves have often changed, and the method of procedure has become in the meanwhile ill-adapted. Thus always are they one step behind the common sense or justice of the community.

When new conditions arise in manufacture-a new style of goods, new demands, change in labor or the invention of new machinery-the factory that has been working for years on the same basis must be radically changed and new methods adopted. Much of the machinery must be sent to the scrap heap. Manufactured goods are thrown away and new ones made according to modern market demands. Courts, in the administration of modern justice, are nothing after all but government factories.

All talk about respect for courts and the dignity of the bench may be a trifle overdrawn, and in a civilized democracy seems a little like the talk about "The Divine Right of Kings." In every other condition of life, a false importance of office is smiled at. In this age of frankness we do not expect such dignity of demeanor from anyone, except from the courts and judges. The President of the United States may go every day in the week to play golf or to attend a ball game, but no judge of the Supreme Court could frequently sit in the bleachers with popular approval. As a matter of fact, why should not the justice of the Supreme Court be as simple on the bench as he wants to be in private life?

Is there not a grave question in presuming too much as to this divine right of courts? What does the dignity of courts amount to? Is it necessary to impress the populace? Do pomp and formality increase the respect for authority? The respect does not come from uniforms or knee breeches. If it did, the car conductor and liveried flunkey were entitled to more.

There is undoubtedly a real respect and admiration for the courts, perhaps an innate feeling for abstract justice, but it is questionable whether it is more than respect for ultimate authority. The courts represent the concrete idea of supreme and final determination. "Unless there were courts," says the man on the street, "justice would be sought with a knife." ́ Disputes must be settled and criminals punished, so apparently courts are necessary evils existing to satisfy the unlawful. A place and opportunity to fight seem also to be the demand, as though not so much justice were

demanded as that very arena for battle. This may explain the popular appeal of the courts and why there is supposed to be a romance or drama therein. Perhaps the public interest is not founded so much on the allurement of battle as on the interest of human character therein developed.

In the criminal courts, the method of arriving at justice in the form of a legal battle is not a very high ideal. It is supposed to be a fair fight between the criminal on the one hand and the state on the other, with the judge as the arbiter and the jury as the restraining influence protecting the public right. Although it is supposed to be a fair fight with even chances on each side, it is not so in reality. It is rather a miserable picture to imagine a criminal as fighting for his life. Corner a rat and of course he will fight somewhat. A criminal caught in the trap of the law cannot have a fair fight if the court is considered as giving him only an opportunity for a fair struggle. It is true that the criminal may employ counsel, if he can afford to pay. If he cannot afford to pay, the court will appoint one for him and he is supposed to be thankful to the judge even for an inexperienced and unoccupied legal champion.

Actually, what chance has he? The idea that a criminal trial is one great, grand battle between the state and its prosecuting attorney with enormous resources of wealth, power, etc., and the criminal, is absurd. The criminal has no money; his name is already besmirched; his lawyer is apt to have had little experience or be of doubtful reputation. He has little opportunity of discovering or 'securing witnesses, and no corps of detectives, legal service or assist

ance.

The very presumption of law is inconsistent. Under the English law the criminal is presumed to be innocent until he is proved guilty, and the odds are theoretically in his favor. He must be proved guilty beyond a reasonable doubt. So the law states, but in reality the chances are not even equal but are against the criminal. The fact that he has been indicted already prejudges him as guilty in the mind of the community. The judge, the jury and the public at large presume him to be guilty. They ask, "If he did not commit the crime, how did he come to be in court?" Everyone knows that the grand jury that has indicted him is composed of eminent citizens. The district attorney who caused his indictment was only elected last fall by large popular vote. It is impossible to

believe that he would try to railroad him to jail or be persecuting an innocent man. The fact of the matter is, the man is probably guilty, and what the judge and jury are there for is to make sure. The presumption of public opinion in spite of the presumption of law has almost convicted the criminal before he begins his supposed fair fight in court.

In a civil action, the inconsistency of court procedure is not quite so obvious; the two sides are arrayed one against the other, the judge is placed as umpire and accorded a quantity of circumstance. He is supposed to be endowed with an almost inhuman aloofness. The jury, often unwilling umpires, sit by to see that justice is done. Although willing to do their duty, they are anxious to be through with an inconvenient call of citizenship. They are not the best possible cojudges. The lawyers are opposed to one another as armed and paid contestants. The clients ill at ease are not particularly pleased at the many delays and technicalities of the trial. The witnesses, having been harrassed and confused, instead of being disinterested bearers of the truth may become unwilling and annoyed partisans.

During the trial or struggle the little technicalities, motions and exceptions bear a great similitude to a legal battle or an intellectual game. When the testimony is over, the two lawyers exhibit before the clients and jury their fighting capacity in words. Then the judge gravely charges the jury that it has been a fair battle, and that on the one side so many blows have been struck and on the other such and such counterattacks have been effective. After it is over and the battle ended, the jury go behind locked doors, pull out their pipes or cigars, forget about the ordeal and try to settle the matter on a business basis. The verdict may not always be according to law, especially that strict application of law as laid down by the judge, but the jury make allowance for the technicalities and anomalies of the trial and their decision is based on common sense.

The entire relation of courts to the community is not well adjusted in form or in the theories of trials. They are survivals of usages called forth by the economic conditions of a past age. When commercial and social life was on a simpler basis, and the courts occupied the position in the political structure as bulwarks for the protection of popular rights against tyranny and oppression "trial by one's peers," "due process of law," "the right of trial by jury,"