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our day decidedly complex, and political conditions to some extent, thus necessitating a considerable readjustment of the law, I am as little disposed to deny as anybody. But it is neither the privilege nor the duty of the courts, except to the limited extent before indicated, to make that readjustment. The duty devolves on the legislative department of the government, which, unless our theory of representative government is entirely wrong is amply able to cope with the situation. It is because these principles, which are indubitably necessary to good government, are not suficiently impressed on the public mind, that the courts are constantly criticized by the press, and that the people have come to look on them as lacking in requisites essential to the correct administration of justice. If the people would bear in mind the correct functions of the courts they would find that the faults they attribute to them are in most cases their own faults, or those of their representatives in the Legislature, which is the same thing. Unless they would subject their lives, liberties and properties to the capricious whim of irresponsible judges, they must rest content that the administration of the law be safeguarded by the principles to which I have referred, and find a remedy for the necessary evils thereof in a more intelligent and active participation in the duties of citizenship. They must realize that the courts can only work with the tools which they themselves provide, and bestir themselves to see that those tools are kept ever bright and sharp and trenchant. When they do that, the miscarriages of justice in the American courts will be a negligible quantity, and causes of complaint will be few and far between.
Members of the bar, who know that the complaints against the courts have been in large part causeless, ought to be zealous in their defense. They are still, as they ever have been, the most influential factor in every community in moulding public sentiment, and if ey had done their duty, it would have been impossible for the propaganda against the courts to have attained the proportions which it has been our misfortune to see. Unfortunately there has been too much of a disposition on the part of both lawyers and judges to bend to the storm, and, instead of interposing general and specific denials, to plead by way of confession and avoidance.
The general frame of mind in which the matter is approached by members of the bar is illustrated by utterances at a local bar meeting which I attended not long ago. The president of the meeting took a fall out of Lord Coke for holding in his day that payment of an obligation created by an instrument under seal could only be proven, like release and acquittance, by an instrument of equally high character with that creating the obligation. The implication was that the courts of law of the present day would have no difficulty, and ought to have no difficulty, in dispensing with any rule of law which offended their idea of the fitness of things. The next speaker, in tracing the causes of public dissatisfaction with the administration
of justice, attributed it to the wranglings and contentions of lawyers in the trial of cases, thereby bringing discredit on the courts in the eyes of bystanders. A large measure of freedom in the thing here confessed as wrong, is the one thing that has contributed more than anything else to the value of the English and American courts as conservators of the life, liberty and property of the citizen. Every self-respecting court will prevent the natural zeal of lawyers from degenerating into license, but license is better than uncalled for repression, which would dull the edge of the legal mind and make it weak or timid in the strenuous advocacy of its cause. When Erskine in one of the libel cases in which he earned undying fame, was directed by Mr. Justice Buller to "Sit down, sir. Remember your duty or I shall be obliged to proceed in another manner,” Erskine replied: "Your lordship may proceed in what manner you see fit. I know my duty as well as your lordship knows yours. I shall not alter my conduct.” When Erskine made this reply, which has since become an inspiration to lawyers in England and America, he may have been wrangling with the court, but he was also vindicating the function of members of the bar as guardians of the liberties of the English people. The next and last speaker, a good lawyer and generally consistent defender of the courts, gave the meeting an account, humorous in character, of the examination of jurors on voir dire in one of the local courts, which he had witnessed, and during which the judge permitted the bringing out of facts and alleged facts concerning which he was necessarily informed and some of which ran counter to his necessary information. The implication here was that the judge failed in his duty in not adjudging the competency of jurors from his own inner consciousness.
I give these occurences an illustration of the thoughtless manner in which lawyers and judges lend countenance to the idea that there is something radically wrong in the conduct of the courts, when in fact they are now as they always have been, honest but imperfect instruments in working out the ideal of human justice. If the ministers of the law tacitly or by implication or indirection, admit the validity of indiscriminate assaults on the courts, nobody can blame the people at large for accepting them as well founded and drawing the most unfavorable conclusions therefrom. The lesson that I would draw from all this is that lawyers and judges should not only be careful of injurious implications which may be drawn from thoughtless speech, but that they should be zealous to set right by measured speech, erroneous and hurtful impressions in the public mind concerning the courts created by criticism which has no just foundation when the true functions of the courts are understood. It is their duty and it is within their power, to re-establish and maintain on the high pedestal of respect which it has always heretofore occupied, the English and American judicial system.
Mr. President and Gentlemen of the Bar, I close with this thought:
It is not too much to say that the character of a people is moulded largely by their courts and the methods of procedure which the latter follow. If justice be generally perverted or unduly delayed, it must show its effects in a disordered and degenerate national economy, destructive alike of individual spirit and patriotic inspiration. When on the other hand we find a people of high spirit, bold initiative and profound patriotism, enjoying the largest measure of individual and political liberty, and advancing, and ever advancing along lines of commercial and industrial development, we know at once that wise and just laws are being administered for their benefit, sanely and effectively, by a well-ordered and honestly administered judicial system. Judged by this standard there is hing the matter with the American courts. May they ever remain as they have ever been -the bulwark of American liberty and exemplars of the beauty of government founded on law.
Howard G. Cosgrove, Seattle. The subject of reform in judicial organization is, as everyone knows, a topic of increasing interest. For years the real and imaginary defects of the present systems have been discussed and at times have come to be near-political issues. A large portion of the people has come to imagine that inefficiency, trickery and wrongdoing are badges of the legal profession. Unscrupulous politicians have taken advantage of the situation to press their claims to ofice to advocate schemes to correct, among other departments of our government the judicial department. Most of the proposed changes showed that their authors had a knowledge of the prevailing political unrest, but exhibited a woeful lack of correct understanding of the real defects and their real causes. Imaginary defects have been exploited far more often than the real ones. In the state of Washington we do not have a corrupt judiciary or an altogether inefficient
The honesty of purpose or legal ability of our judges is seldom questioned, but that is not because our judicial machinery is perfect or that there is no room for improvement. The people of Washington, I believe, share in the general dissatisfaction, not because they can find any great fault at home, but because it is in the atmosphere. Some of the troubles of the court come from the people themselves through the legislative branch of the government by way of imperfect and ill-considered laws but this leads to the question of reform in our legislative system which is not here under discussion.
Every thinking lawyer in Washington knows that there is some judicial delay in that state, some real inefficiency and that the machinery could be speeded up. Many are the devices proposed to remedy the objections, but practically no changes have been made since we became a state. It would appear that real reform must come through a change in our Constitution and this discussion is opportune for it is not at all unlikely that a constitutional convention will be called in the very near future. From the reading, about two years ago, of an article on judicial reform written by Mr. Harley, together with a study of the situation in Washington, I have persuaded myself that the following system would be better than the present one in many ways; that it would speed litigation, take up, so to speak, the slack in the system, draw abler judges to the bench, be less expensive to the state and in the end more nearly satisfy the litigant and the lawyer.
My program provides for the appointment of a judicial board of three to be appointed by the governor, to be made up of lawyers devoting their entire time to their duties and vested with wide authority. It should be appointed for a term of say eight years or a