754 THE POPULAR SCIENCE MONTHLY. 



The one vicious principle at the base of litigation, at least in 

 criminal cases, and which overshadows all others, is that the profes- 

 sional advocate is generally oblivious to all the claims of abstract 

 justice, or that there is any obligation resting on him to protect the 

 community. It is his client who is to be sustained, right or wrong, 

 and the claims of justice or of the public receive no consideration. 

 He is educated to this idea in the law-school, and, becoming a rule of 

 action, it makes the lawyer, comparatively, a narrow man, and one of 

 the most unfit of all men — of equal education — to trust on questions 

 involving the great interests of society, hence especially unfit to be a 

 \siVf-maker. This allegation will surprise some, but it need not when 

 we remember that it is quite as much the lawyer's business to impair 

 or destroy the force of a good law as to sustain it. He labors to find 

 defects in the law, or to boldly mislead courts and juries so as to 

 secure wrong interpretations of law, and thus by assurance and false 

 logic screening his client against its just intent. To make legislators 

 out of such men is poor policy, because ill-digested, obscure, contra- 

 dictory statutes grind out grists for the lawyers' mills, and the man 

 educated to look out for nobody but himself is reasonably sure not to 

 neglect such an opportunity to promote litigation. 



This disposition to thwart justice on occasion suggests another 

 reform. If judges are really "learned in the law," as they should be, 

 why are lawyers needed at all as advocates /)ro or con in the trial of 

 ordinary jury cases ? Why not make it the business of the judge to 

 examine the witnesses and bring out all the facts ? It is the facts as 

 they bear on the case which are wanted, and not that version of them 

 which the paid advocates wish presented. They have no wish and no 

 intention to bring out the truth except as it assists their own side ; 

 they desire, indeed, to suppress it when possible, which is their aim in 

 the bullying and browbeating of timid witnesses: hence the judge, 

 who is sworn to impartiality, and has no interest in concealing any- 

 thing, is a far better man to examine the witnesses. If this would 

 overwork him, let him have assistants, or let the court be composed of 

 several judges. The taking of testimony would then be more rapid, 

 because there would be no lawyers' wordy wrangles to cause delay 

 and weary the jury ; and, when concluded, the presiding judge would 

 not, in making his charge, be obliged to warn the jury against a mass 

 of irrelevant testimony. In order to guard against possible errors by 

 the court and secure a review by a higher court on really important 

 points, counsel for each side might be present to watch, take excep- 

 tions, and secure a review under certain limitations ; but a careful 

 judge would rarely make mistakes that needed review. Besides, 

 appeals or reviews should be greatly limited. Judge Learned, in his 

 article, shows their abuse and evils very clearly, and also points out 

 that they do little toward securing exact justice. " When the end is 

 reached," he says, " it is an end only because it can go no further, and 



