Central Law Journal,

St. Louis, Mo., October 28, 1921.

ATTORNEY GENERAL DAUGHERTY'S SIX RULES FOR HANDLING LABOR DISPUTES.

At the American Bar Association meet

ing in Cincinnati, Attorney General Daugherty discussed the general subject of Law Enforcement. His address was well received and none of his suggestions were more interesting than the six rules he laid down for handling labor disputes. We give them verbatim :

First-It is an undisputed fact that the public have a right to know what the quarrel is about in every actual or threatened strike or lockout and similar controversies. Second-There should be some definite agencies in government for ascertaining these facts fully and making an impartial finding by those specially qualified both by temperament and training to do this particular kind of work; and such finding should be reported so that it will be a reliable source of knowledge to which students and publicists and statesmen can re

sort.

over

Third-Compulsory jurisdiction these two factors to compel them to submit to an inquiry of this sort is not only desirable but just.

Fourth-At present our study of this question has not been sufficiently thorough to warrant legislation compelling the acceptance of such findings by the parties thereto. Therefore, the jurisdiction of the proper agency should be obligatory upon the parties to submit to the investigation; the acceptance of the finding by the parties. should be voluntary.

Fifth-The experience of the past shows that in most cases full, accurate, reliable publicity has been sufficient to compel an adjustment of these cases. Public sentiment is a controlling factor and it is important, in justice to both of the parties, that it should depend upon something more accurate than successful propaganda.

Sixth-In the course of time knowledge of the nature and causes of these controversies derived in this way may crystallize public sentiment to the extent that laws can be enacted making such controversies impossible.

Society is vitally interested in the proper solution of this question. When some such plan as I have suggested shall have been put in operation then we will have a more intelligent basis upon which to enact compulsory legislation upon this subject.

The Attorney General has stated the prevailing opinion, both in the profession and among the people. The whole subject of compulsory arbitration of labor disputes

was discussed at the recent Conference of Commissioners on Uniform State Laws at Cincinnati, August, 1921, and the Kansas experiment was regarded with more favor than heretofore. It was finally decided to postpone action on a Uniform. Industrial Dispute Act until the Supreme Court had passed on the Constitutionality of the Kansas law.

The difficulty that presents itself to us at this time did not exist fifty years ago. It is due to the present day mania for group organization. So long as men acted singly, as individuals, the old forms of executive and judicial administration were sufficient. But when men tied themselves together by solemn oaths and compacts to act together, they became in some cases, as powerful as the government itself, or at least so powerful that the ordinary remedies and processes of law could not solve the problems created when one such group came in conflict with another such group.

But the people are awakening to the danger of these groups. They stared in amazement a few years ago at the prospect of freezing to death while the coal mine owners locked horns with the organized miners' union over some dispute about wages and working conditions. The people then came. to the conclusion that all such groups were dangerous to society and must be destroyed or they must be put under control. Two individuals would not be allowed to settle their own differences by staging a prize fight on the public highway and blocking traffic. So the owners of coal mines and their miners, who constitute a mines and their miners, who constitute only a small part of the population of the country, should not be permitted to stage a spec

tacular strike while the people freeze and

starve.

It is just as reasonable for the state to provide a tribunal to settle these disputes as it is to compel individuals to tell their troubles to the judge rather than fight them out on the public highways.

The sixth suggestion of the Attorney General is worthy of special mention. The hesitation felt by lawyers over the creation of an industrial court has been because of the uncertain character of the justiciable issues involved in such controversies.

The nature and causes of industrial disputes are uncertain, and no principles of the common law seem to be applicable thereto. The careful investigation of every such controversy is bringing to light certain conditions caused by our complex social and industrial life, which can be remedied only by regulation and by new laws defining the rights of both the worker and the employer. When the law has crystallized on this point then the Industrial Court will have a fairly clear chart and compass and probably will be a safe boat to travel in.

NOTES OF IMPORTANT DECISIONS.

LACK OF FIDELITY TO CLIENT AS GROUND FOR DISBARMENT.-Clients have sometimes sued their lawyers for negligence or want of skill but rarely have courts, sua sponte, directed the Attorney General to bring proceedings to disbar an attorney for negli gence in filing a writ of error. But that is what happened in the recent opinion by the Supreme Court of New Jersey in the case of In re McDermit, 114 Atl. 144.

In that case McDermit was attorney for a defendant indicted for murder. There was a conviction, and on October 4th a judgment of death. An application to the Chancellor for a writ of error out of the Supreme Court was refused. Thereupon McDermit sued out a writ of error as a writ of right from the Court of Errors and Appeals on November 9, 1920, returnable November 29, 1920. Between the issuance of the writ of error and its return the November term of the Court of Errors and Appeals opened on the 16th day of November. It thereupon became McDermit's duty, under the

twenty-seventh rule of that court, there not being sufficient time to bring on the hearing at the November term, to apply to the Court of Errors and Appeals on the first day of that term for such order as might be necessary to secure the speedy hearing and determination of the cause. This he failed to do. The prosecutor of the pleas thereupon gave notice to dismiss the writ of error. Regular practice

required that it should be dismissed, but, as the case was a capital case, the Court of Errors and Appeals, out of mere grace, examined into the record and heard argument, directing that proceedings be had against the attorney for his neglect.

The question in the case was whether the attorney in this case should be disbarred for failure in his duty to a client in respect to a motion necessary to secure a review of the case on appeal. The Court said it was. In the opinion the court called attention to the fact that McDermit had been disbarred many years before (63 N. J. Law 476) for retaining money belonging to his client, but he had been afterward restored to the bar. In contrasting the two situations, the Court said:

"In the case referred to, the defendant was disbarred because he obtained money from his clients for which he failed to render any ade quate service, and because he retained for his own use money which he received from them for another purpose. In short, he was then disbarred for lack of fidelity to his clients in pecuniary matters only. He is now guilty of lack of fidelity in a matter involving life. He abandoned them when the prisoner was in the very shadows of the electric chair, in the very week fixed for execution. That abandonment was not less culpable because he subsequently resumed his efforts in their behalf under strong pressure from the Court. For counsel to abandon a client at such a crisis is like a soldier deserting in the face of the enemy. Dereliction on the part of attorneys and counselors is not uncommon, but fortunately the most untrustworthy counsel is ordinarily loyal enough to his client, and even the ordinary sense of selfinterest urges a lawyer to do the best he can to save his client's life. It is rare that counsel sets his own desire for money above his client's chance of life. We find that McDermit was guilty of gross dereliction in his duty to his client. We can think of none grosser. If mere unfaithfulness in money matters justified his disbarment in 1899, much more must lack of fidelity in a matter of life and death justify his disbarment in 1921."

The Court evidently thought that McDermit's failure to perfect his appeal was not a mere oversight but a deliberate attempt to bring pressure to bear on the wife of his client to give him a larger fee. Unless this be true it is hard to believe that the Court would visit upon an attorney such a harsh punishment.

Very rarely will a court disbar an attorney for mere negligence or want of skill. There must be some element of moral turpitude in the offense. Unless that were true not a few honest attorneys would be disbarred for lapses of memory which resulted in injury to their client's cause. While it is clear that in such cases the attorney should be liable civilly for his client's loss, it is not clear that he should forfeit his professional life, unless his failure to do what he ought to have done was deliberate or for some ulterior purpose.

THE ILLEGAL ENFORCEMENT OF THE CRIMINAL LAW.*

The tendency everywhere, in vegetable and animal life, is to revert to original primitive types. In the absence of mental and moral training, the human biped steers constantly and inevitably backward to his

cave ancestor.

The average American, while easily aroused and led by passion, willingly bends to the law's behests and looks to it for justice and safety; but when misled by anarchists and demagogues, beset by some great temptation or obsessed by some primeval passion, then the training and infiuence of ages of civilization disappear.

The average American community, under normalcy, is gentle, well bred, well fed, keeping step, as well as humanity is expected to do, with the law and the prophets; when in the calm, no inexperienced onlooker could ever conceive that it could be lashed into storm.

But when the crisis comes, when swayed by prejudice and passion, when aroused by race clash and antagonism; when deceived by demagogues and shysters; when shocked by some atrocious crime; when threatened by loss of place; when gnawed by famine; when excited by class hatred and distrust; when betrayed by political or religious frenzy the erstwhile peaceable,

This is a revision of Mr. Rosser's address to the American Bar Association at Cincinnati, Sept. 2, 1921, a very able discussion of Lynch Law and Mob Violence by one of the greatest criminal lawyers of the South.

happy, law-abiding community becomes a besom of destruction; it halts at no injustice, no cruelty, no brutality; it is deaf to the voice of reason, mercy and humanity.

Such is the mob-the mob major-maddened by lust, plunder, passion, hunger, hatred, personal revenge; the mob subjective, whose madness is superinduced by its own. real or imaginary wrongs, interests, or gratification.

Noteworthy among the species is the lynching mob.

It might justly be called the objective mob.

Lynching is defined by Rapalje and Lawrence as mob vengeance upon a person suspected of crime. Both Worcester and Webster define it as the infliction of pusishment without legal trial by a mob or by unauthorized persons.

These definitions are, in fact, justified by experience. Ordinarily, and indeed almost universally, a crime, shocking the community by its brutality, is the occasion for the formation and operation of a band of lynchers. The usual, ordinary violations of the criminal law, and generally even brutal and shocking crimes, run their regular course in the courts without suggestion of mob violence. But at unexpected intervals some crime, by reason of its innate repulsiveness, its brutality and wantonness disrupts the equilibrium of the community and the mob forms quickly, spontaneously, and in its restless fury, forgetful of all law and restraint, works its primitive punishment; or, when the community's calm has already been disturbed by a series of crimes, or when, for any other reason, the community is already in eruption, crimes that would otherwise and at other times be left to ordinary judicial procedure produce mob action.

Inevitably, not all those lynched are guilty. In the nature of things, there is neither time nor opportunity for real truthseeking investigation. The very essence of the mob is swift action, without reflection. Its only law-the very law of its

existence is to act and then reflect, to hang first and try afterwards. Its sole purpose is to supersede and render impossible the form and substance of a judicial hearing. The mob feels no need for pleading, evidence or sentence. It has no doubt, no question. The crime has certainly been committed; it has the criminal in its power; wherefore should there be hesitation or delay? That the unfortunate might escape judicial sentence not only does not deter, but is often itself an incentive to mob action. The calm, careful deliberation of the court maddens the mob. Why should one so palpably guilty take the time of the court and, perchance, escape through its meshes?

The only court action that lynchers respect is that variety, alas, too prevalent, which most nearly approaches their own methods. What lawyer of large experience has not seen, in some inflamed, superheated community, the unfortunate prisoner lynched in the courthouse, although allowed all the naked, dry forms of the law?

As the lynchers reach a judgment without aid from the law, they likewise disregard the law in fixing the punishment. Two of the subterfuges used by mobs to excuse their actions are the delay and the clemency of the courts. The mob is society in eruption, and it is too much to hope that it will reach only adequate and merciful judg

ments.

It subconsciously seeks justification for its existence upon the theory that ordinary methods and remedies have failed and the right end can be reached only by adopting radical processes and extreme, severe remedies. Great wrongs demand extreme punishment. Its existence presupposes the wrong, and it is remedied for the most part with death. The fact that the punishment may not fit the crime does not appeal to the mob. There is neither time nor inclination to deal with such a subtle question--only a punishment swift and terrible can come from the mob. It is a monster whose maw is insatiable.

Lynching is no new demonstration of the mob spirit. From Colonel Lynch it may

have, and doubtless did, take its modern appellation, but in such taking there was no infantile christening. Saul was one of the earlier and most dangerous types of lynchers; and a long line of lynchers, lay and evangelical, preceded and succeeded him. Indeed, lynching has a long and distinguished pedigree, sometimes indistinguishably commingled with the general mob family, and sometimes branching off from the genus as a well recognized species with a nomenclature of its own. Of the latter were the Vemic tribunals of Westphalia, which executed thieves and murderers caught in the act, without delay or trial; and the Jedwood justice, "hang in haste and try at leisure." Lydford law is thus aptly defined:

"I oft have heard of Lydford law, How in the morn they hang and draw, And sit in judgment after."

But no matter how it may intertwine and commingle with the records of the mob family, and no matter with or without distinct or specific nomenclature, the mob spirit now designated as lynch law is as old as human society. It is more ancient than any form of organized government. In primitive times it was itself the law, and it took ages of development and restraint. to outlaw it; and although long outlawed, it has never been destroyed nor wholly banished. Now and then it emerges from its concealment, its outlawry for the time forgotten, and under its sway the people, in fury and frenzy, deal directly with the supposed criminal, scorning all law and all procedure. That such is the truth all good men deplore, but no wise man will forget.

The mob spirit, including lynching, has no geographical limitations. Whole nations may for a long period be free from its debasing influence. England, prior to the world war, was instanced as a conspicuous example. England, with an AngloSaxon, homogeneous population, stolid and well-poised, with fixed stations in life, always free, densely populated, so that its citizens were constantly under the eye and

in the very presence of its law officers, for two centuries secure from serious internal dissension, and for a century saved from the corruption of serious foreign wars, has been happily free from the aroused spirit of the mob. It is too much to hope that, even in staid England, such dormant spirit may not, as a result of the mighty upheaval of the recent war, have a terrible awakening. Indeed, it is even now awaking from its century sleep. That it has lain dormant so long is not at all conclusive that it has ceased to exist "In that nook-shotten isle of Albion."

The lynching spirit exists in England because men live there, and she will be thrice blessed if it sleeps as quietly in the future as in the past.

On the contrary, America-East, West, North and South-has, in all its history, been the breeding ground for mobs, racial, political, labor, religious-mobs great and small. Abraham Lincoln, in an address at Springfield, January 27, 1837, moved thereto by tragedies in Mississippi and Missouri, said of mobs and their atrocities:

"Accounts of outrages committed by mobs form the everyday news of the times. They have pervaded the country from New England to Louisiana; they are neither peculiar to the eternal snows of the former nor the burning sands of the latter; they are not the creature of climate, neither are they confined to the slave-holding or the nonslave-holding states. Alike they spring un among the pleasure-hunting masters of Southern Slaves, and the order-loving citizens of the land of steady habits. Whatever then their cause may be, it is common to the whole country."

It necessarily takes no great crisis to organize a mob. The sudden, unexpected, impassioned appeal to class, racial or religious prejudice, may at any time furnish the electric spark that will explode the mob magazine.

lions are of African descent, a little over fifty years removed from the ignorance and dependence of slavery, the poise and selfcontrol of many of whom are now near zero, and whose ethnic characteristics, mental and moral traits, exaggerated by a sudden, licentious freedom, marvelously excite to race prejudice, discord and riot.

A large and dangerous percentage of our white citizens have, without social, political or educational preparation, hastily gathered here from the four corners of the earth. They have taken asylum here with no conception or appreciation of our system of government. They had but lately escaped from the tyranny and oppression of laws in whose making they had no part, and it is a tedious process to make them believe that wise and just laws can be made and safely obeyed, and that liberty is self-restraint and not license. They have just fled from class obstructions and restricted fields of labor, with the expectation that they will enjoy, in their new home, social license and unmolested freedom of labor. It has been and will be difficult to convince such new comers that they cannot labor when they will, how they will and for what they will, and that they can justly kill or destroy to keep their places or to keep anyone else out if, for any reason, they discard them.

America, herself, has boasted that she is the asylum for the governmental vagarist and heretic, no matter what their creed or lack of creed. She has been

very Cave of Adullam, to which have gathered "everyone that was in distress, and everyone that was in debt, and everyone that was discontented." To be the world's melting pot may be a nation's glory, but it has its terrible burdens. The social reaction in so great a melting pot will surely manifest itself in social storms and earthquake.

Serious internal dissensions do not make for law and order. The American citizen has been largely denied that poise and selfrestraint that have their growth in long eras of profound internal peace. The Revolutionary War was not only a war with Eng