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Central Law Journal.
Society is vitally interested in the proper solution of this question. When some such
plan as I have suggested shall have been St. Louis, Mo., October 28, 1921.
put in operation then we will have a more
intelligent basis upon which to enact comATTORNEY GENERAL DAUGHERTY'S SIX
pulsory legislation upon this subject. RULES FOR HANDLING LABOR DISPUTES.
The Attorney General has stated the pre
vailing opinion, both in the profession and At the American Bar Association meet
among the people. The whole subject of ing in Cincinnati, Attorney General Daugh- compulsory arbitration of labor disputes erty discussed the general subject of Law
was discussed at the recent Conference of Enforcement. His address was well re
Commissioners on Uniform State Laws at ceived and none of his suggestions were
Cincinnati, August, 1921, and the Kansas more interesting than the six rules he laid
experiment was regarded with more favor down for handling labor disputes. We give
than heretofore. It was finally decided to them verbatim:
postpone action on a Uniform. Industrial First-It is an undisputed fact that the
Dispute Act until the Supreme Court had public have a right to kilow what the quar- passed on the Constitutionality of the Kanrel is about in every actual or threatened
sas law. strike or lockout and similar controversies.
The difficulty that presents itself to us at Second— There should be some definite
this time did not exist fifty years ago.
It agencies in government for ascertaining these facts fully and making an impartial
is due to the present day mania for group finding by those specially qualified both by organization. So long as men acted singly, temperament and training to do this par- as individuals, the old forms of executive ticular kind of work; and such finding and judicial administration were sufficient. should be reported so that it will be a re- But when men tied themselves together liable source of knowledge to which stu
by solemn oaths and compacts to act todents and publicists and statesmen can re
gether, they became in some cases, as powsort. Third-Compulsory jurisdiction over
erful as the government itself, or at least these two factors to compel them to submit so powerful that the ordinary remedies to an inquiry of this sort is not only de
and processes of law could not solve the sirable but just.
problems created when one such group Fourth-At present our study of this
came in conflict with another such group. question has not been sufficiently thorough to warrant legislation compelling the ac
But the people are awakening to the danceptance of such findings by the parties | ger of these groups. They stared in amazethereto. Therefore, the jurisdiction of the ment a few years ago at the prospect of proper agency should be obligatory upon freezing to death while the coal mine ownthe parties to submit to the investigation;
ers locked horns with the organized miners' the acceptance of the finding by the parties should be voluntary:
union over some dispute about wages and Fifth— The experience of the past shows working conditions. The people then came that in most cases full, accurate, reliable to the conclusion that all such groups publicity has been sufficient to compel an were dangerous to society and must adjustment of these cases. Public senti
be destroyed or they must be put under ment is a controlling factor and it is im
control. Two individuals would not be alportant, in justice to both of the parties, that it should depend upon something more
lowed to settle their own differences by accurate than successful propaganda. staging a prize fight on the public highway
Sixth-In the course of time knowledge and blocking traffic. So the owners of coal of the nature and causes of these controversies derived in this way may crystallize mines and their miners, who constitute only
mines and their miners, who constitute a public sentiment to the extent that laws can be enacted making such controversies im- a small part of the population of the counpossible.
try, 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.
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,
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 negligence 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
Very rarely will a court disbar an attorney happy, law-abiding community becomes a for mere negligence or want of skill. There
besom of destruction; it halts at no injusmust be some element of moral turpitude in the offense. Unless that were true not a few
tice, no cruelty, no brutality; it is deaf to honest attorneys would be disbarred for lapses
the voice of reason, mercy and humanity. of memory which resulted in injury to their Such is the mob—the mob major-madclient's cause, While it is clear that in such
dened by lust, plunder, passion, hunger, hacases the attorney should be liable civilly for
tred, personal revenge; the mob subjective, his client's loss, it is not clear that he should
whose madness is superinduced by its own forfeit his professional life, unless his failure to do what he ought to have done was delib
real or imaginary wrongs, interests, or erate or for some ulterior purpose.
Noteworthy among the species is the
lynching mob. THE ILLEGAL ENFORCEMENT OF It might justly be called the objective THE CRIMINAL LAW.*
Lynching is defined by Rapalje and LawThe tendency everywhere, in vegetable rence as mob vengeance upon a person susand animal life, is to revert to original pected of crime. Both Worcester and primitive types. In the absence of mental Webster define it as the infliction of pusand moral training, the human biped steers ishment without legal trial by a mob or by constantly and inevitably backward to his unauthorized persons. cave ancestor.
These definitions are, in fact, justified The average American, while easily by experience. Ordinarily, and indeed alaroused and led by passion, willingly bends most universally, a crime, shocking the to the law's behests and looks to it for jus- community by its brutality, is the occasion tice and safety ; but when misled by anarch- for the formation and operation of a band ists and demagogues, beset by some great of lynchers. The usual, ordinary violations temptation or obsessed by some primeval of the criminal law, and generally even passion, then the training and infiuence of brutal and shocking crimes, run their regages of civilization disappear.
ular course in the courts without suggestion The average American community, under of mob violence. But at unexpected innormalcy, is gentle, well bred, well fed, tervals some crime, by reason of its innate keeping step, as well as humanity is expect-repulsiveness, its brutality and wantonness ed to do, with the law and the prophets; disrupts the equilibrium of the community when in the calm, no inexperienced on
and the mob forms quickly, spontaneously, looker could ever conceive that it could be and in its restless fury, forgetful of all law lashed into storm.
and restraint, works its primitive punishBut when the crisis comes, when swayed ment; or, when the community's calm has by prejudice and passion, when aroused already been disturbed by a series of by race clash and antagonism; when de- crimes, or when, for any other reason, the ceived by demagogues and shysters; when community is already in eruption, crimes shocked by some atrocious crime; when that would otherwise and at other times threatened by loss of place; when gnawed be left to ordinary judicial procedure proby famine; when excited by class hatred duce mob action. and distrust; when betrayed by political or Inevitably, not all those lynched are religious frenzy—the erstwhile peaceable, guilty. In the nature of things, there is
neither time nor opportunity for real truth*This is a revision of Mr. Rosser's address to the American Bar Association at Cincinnati, seeking investigation. The very essence Sept. 2, 1921, a very able discussion of Lynch
of the mob is swift action, without reflecLaw and Mob Violence by one of the greatest criminal lawyers of the South.
tion. Its only law-—the very law of its existence—is to act and then reflect, to hang have, and doubtless did, take its modern first and try afterwards. Its sole purpose appellation, but in such taking there was no is to supersede and render impossible the infantile christening. Saul was one of the form and substance of a judicial hearing. earlier and most dangerous types of lynchThe mob feels no need for pleading, evi- ers; and a long line of lynchers, lay and dence or sentence. It has no doubt, no evangelical, preceded and succeeded him. question. The crime has certainly been Indeed, lynching has a long and distincommitted; it has the criminal in its power; guished pedigree, sometimes indistinguishwherefore should there be hesitation or de-ably conimingled with the general mob lay? That the unfortunate might escape family, and sometimes branching off from judicial sentence not only does not deter, the genus as a well recognized species with but is often itself an incentive to mob ac- a nomenclature of its own. Of the latter tion. The calm, careful deliberation of the were the Vemic tribunals of Westphalia, court maddens the mob. Why should one which executed thieves and murderers so palpably guilty take the time of the court caught in the act, without delay or trial; and, perchance, escape through its meshes? and the Jedwood justice, "hang in haste
The only court action that lynchers re- and try at leisure." Lydford law is thus spect is that variety, alas, too prevalent, aptly defined : which most nearly approaches their own "I oft have heard of Lydford law, methods. What lawyer of large experience How in the morn they hang and draw, has not seen, in some inflamed, superheated And sit in judgment after." community, the unfortunate prisoner lynch
But no matter how it may intertwine and ed in the courthouse, although allowed all commingle with the records of the mob the naked, dry forms of the law ?
family, and no matter with or without disAs the lynchers reach a judgment with- tinct or specific nomenclature, the mob out aid from the law, they likewise disre-spirit now designated as lynch law is as gard the law in fixing the punishment. Two
old as human society. It is more ancient of the subterfuges used by mobs to excuse
than any form of organized government. their actions are the delay and the clemency
In primitive times it was itself the law, and of the courts. The mob is society in erup
it took ages of development and restraint tion, and it is too much to hope that it will to outlaw it; and although long outlawed, reach only adequate and merciful judg
it has never been destroyed nor wholly banments. It subconsciously seeks justifica-ished. Now and then it emerges from its tion for its existence upon the theory that concealment, its outlawry for the time forordinary methods and remedies have failed gotten, and under its sway the people, in and the right end can be reached only by fury and frenzy, deal directly with the supadopting radical processes and extreme, se
posed criminal, scorning all law and all provere remedies. Great wrongs demand ex
cedure. That such is the truth all good treme punishment. Its existence presup
men deplore, but no wise man will forget. poses the wrong, and it is remedied for the The mob spirit, including lynching, has most part with death. The fact that the no geographical limitations. Whole napunishment may not fit the crime does not tions may for a long period be free from appeal to the mob. There is neither time its debasing influence. England, prior to nor inclination to deal with such a subtle the world war, was instanced as a conspicquestion--only a punishment swift and ter- uous example. England, with an Anglorible can come from the mob. It is a mon- Saxon, homogeneous population, stolid and ster whose maw is insatiable.
well-poised, with fixed stations in life, alLynching is no new demonstration of the ways free, densely populated, so that its mob spirit. From Colonel Lynch it may citizens were constantly under the eye and in the very presence of its law officers, for lions are of African descent, a little over two centuries secure from serious internal fifty years removed from the ignorance and dissension, and for a century saved from dependence of slavery, the poise and selfthe corruption of serious foreign wars, has control of many of whom are now near been happily free from the aroused spirit zero, and whose ethnic characteristics, menof the mob. ' It is too much to hope that, tal and moral traits, exaggerated by a sudeven in staid England, such dormant spirit den, licentious freedom, marvelously excite may not, as a result of the mighty upheaval to race prejudice, discord and riot. of the recent war, have a terrible awaken- A large and dangerous percentage of our ing. Indeed, it is even now awaking from white citizens have, without social, political its century sleep. That it has lain dormant or educational preparation, hastily gathered so long is not at all conclusive that it has here from the four corners of the earth. ceased to exist "In that nook-shotten isle | They have taken asylum here with no conof Albion."
ception or appreciation of our system of The lynching spirit exists in England be government. They had but lately escaped cause men live there, and she will be thrice from the tyranny and oppression of laws blessed if it sleeps as quietly in the future in whose making they had no part, and it is as in the past.
a tedious process to make them believe that On the contrary, America-East, West, wise and just laws can be made and safely North and South—has, in all its history, obeyed, and that liberty is self-restraint been the breeding ground for mobs, racial, and not license. They have just fed from political, labor, religious-mobs great and class obstructions and restricted fields of small. Abraham Lincoln, in an address at labor, with the expectation that they will enSpringfield, January 27, 1837, moved there- joy, in their new home, social license and to by tragedies in Mississippi and Missouri, unmolested freedom of labor. It has been said of mobs and their atrocities :
and will be difficult to convince such new "Accounts of outrages committed by comers that they cannot labor when they mobs form the everyday news of the times. will, how they will and for what they will, They have pervaded the country from New
and that they can justly kill or destroy to England to Louisiana ; they are neither peculiar to the eternal snows of the former
keep their places or to keep anyone else out nor the burning sands of the latter ; they are
if, for any reason, they discard them. not the creature of climate, neither are they America, herself, has boasted that she is confined to the slave-holding or the non- the asylum for the governmental vagarist slave-holding states. Alike they spring un
and heretic, no matter what their creed or among the pleasure-hunting masters of
lack of creed. She has been a very Cave Southern Slaves, and the order-loving citizens of the land of steady habits. What
of Adullam, to which have gathered "everyever then their cause may be, it is common
one that was in distress, and everyone that to the whole country.”
was in debt, and everyone that was disconIt necessarily takes no great crisis to or- tented." To be the world's melting pot ganize a mob. The sudden, unexpected, may be a nation's glory, but it has its terriimpassioned appeal to class, racial or re- ble burdens. The social reaction in so great ligious prejudice, may at any time furnish a melting pot will surely manifest itself in the electric spark that will explode the mob social storms and earthquake. magazine.
Serious internal dissensions do not make The American people are an ebullient, for law and order. The American citizen volatile people, likely to boil over or blow has been largely denied that poise and selfun. The explanation is plainly apparent. restraint that have their growth in long eras Our population is hopelessly, inextricably of profound internal peace.
. The Revoluheterogeneous. Approximately ten mil- tionary War was not only a war with Eng