Page:The Green Bag (1889–1914), Volume 25.pdf/50

This page needs to be proofread.

The Editor's Bag judge is much closer to fact. He may not, in terms, instruct the jury that "he's all up in th' air about th' case an' doesn't know what he ought to say to thim," but the absurd rule prevailing in many of our jurisdictions which pre vents a judge from commenting on any portion of the evidence practically relieves him of the duty to make any effort to secure an intelligent verdict. The uselessness of such a judge as a part of the machinery of justice is dramatically exhibited by Mr. Dooley in words vividly portraying his impotence: "Th' pris'ner is brought into coort, smilin' an' cheerful, th' flashlights boom, th' cameras click, th' ladies swoon, an' th' judge says with a pleasant smile: 'It is me dhread jooty to sintince ye to th' Coort iv Appeals. Long life to ye.'" The Crippen case is doubtless fresh in Mr. Dooley's mind, yet in that case the rights of the accused were scrupu lously cared for, and the speed of the proceedings does not justify the conclu sion that he did not have a fair oppor tunity to clear himself. If Mr. Dooley would let us look upon the English sys tem to relieve our eyes of the strain of beholding the caricature of justice offered by our own procedure at its worst, his satire would make a more telling im pression. He sees the absurdities of protracted postponement of the trial, of the laborious method of impanelling a jury, of that too indulgent demeanor of judges and other officials toward the prisoner which panders to newspaper sensationalism, of toleration of frivolous defenses, of over-attention to technicali ties with regard to admission or exclusion of evidence, and of improper reversals on purely technical grounds. The evils are of course overstated, and some of our courts are conspicuously free from many if not from all of them, but the sombre truth underlying much of Mr.


Dooley's buffonery will be recognized, and it will be long before our procedure will be so purged of these defects as no longer to offer humorists an inviting field for sarcasm. One does not make mockery of justice, of liberty, or of any other sacred possession of the American people, and so soon as our courts come to be administered with due regard to their higher function any mockery of them will provoke resentment rather than mirth. Many successors to Mr. Dooley can doubtless continue, before that Utopian event, to employ his methods of entertainment to the delight of a sympathetic audience. THE ETHICS OF ADVOCACY IN AN UNJUST CAUSE REFERRING to Brougham's famous speech before the judges of the Queen's Bench in defense of Queen Caro line, the Law Journal has this to say: The real truth is that Brougham intended to address a threat to George IV and his advisers rather than to frame a considered statement of the duties of an advocate. . . . The allegation [of Disraeli] that advocates are permitted to say anything "provided they be paid for it" is entirely contrary to the traditions and practice of the profession. Within the last few days the Lord Chief Justice, as president of the Court of Criminal Appeal, has reproved a member of the bar who, knowing that his client had already been convicted, sought to secure his acquittal by appealing to the jury in impassioned language not to attach the stigma of criminality to his name. It has always been recognized that an advocate is bound, in doing his utmost for his client, to have regard, in the words of Sir Alex ander Cockburn, to "the eternal and immutable interests of truth and justice." 1 The duty of an advocate in an unjust cause has received interminable discus sion, and if the high-sounding words of Cockburn smack somewhat more strongly of the ideal than of the reality, 'Law Journal, London. Nov. 30. 1912. p. 717.