These questions naturally recall the proceedings in New York of People v. Tweed in the year 1873.46 At the first trial, before Hon. Noah Davis, the jury disagreed. The same justice later in that year called the cause for retrial. He was handed a written objection to his sitting.47 After glancing at the paper, the Judge asked, "Is that to be the subject of any motion?" Counsel replied, "No, your Honor, we simply submit this to you." The court took the paper without further comment. Later the second trial proceeded (without any formal objection to the judge) and Tweed was convicted.

Afterwards, the Court announced a date at which the members of the bar, who had thus suggested a disqualification, were summoned to come before him. Counsel attended and disclaimed any disrespect. After a further adjournment, fines of two hundred and fifty dollars each were imposed on ex-Judge Fullerton and Messrs. John Graham and W. O. Bartlett, which were at once paid.

The standards of to-day cannot apply to an exciting trial of fifty years ago. Even now in the East, the right to question the qualification of a judge is still somewhat of a novelty.

46Court of Oyer and Terminer of the City and County of New York, Hon Noah Davis presiding, 1873.

47The following paper was presented to Mr. Justice Davis:

"The counsel for William M. Tweed respectfully present to the Court the following reasons why the trial of this defendant should not be had before the Justice now holding the court:

"First. The said Justice has formed, and upon a previous trial expressed a most unqualified and decided opinion, unfavourable to the defendant, upon the facts of the case; and he declined to charge the jury that they were not to be influenced by such an expression of his opinion. A trial by jury, influenced as it necessarily would be by the opinion of the Justice, formed before such time, would be had under bias and prejudice and not by an impartial jury, such as the constitution secured to the defendant.

"Second. Before the recent Act of the Legislature of this State, providing that challenge to the favor shall be tried by the Court, any person who had assumed a position in reference to this case and this defendant, such as said Justice had assumed, would have been disqualified to act as trier. The defendant is no less entitled to a fair trial of his challenge now than he was formerly. What would have disqualified a trier must disqualify a judge now.

"Third. Most of the important questions of law, which will be involved in the trial, have already been decided by the said Justice adversely to the defendant, and upon some important points, his rulings were, as we respectfully insist, in opposition to previous decisions of other judges.

"Although there may be no positive prohibition of a trial under these circumstances, it would be clearly a violation of the spirit of our present constitution, which prohibits any judge from sitting in review of his own decision.

"The objection to a judge, who has already formed and expressed an opinion upon the law, sitting in this case, is more apparent from the facts that in many states, where jurors are judges of law, as well as facts, he would be absolutely disqualified as a juror. [Signed] "David Dudley Field; John Graham; William Fullerton; William O. Bartlett; J. E. Burrill; Elihu Root; Willard Bartlett, and William Eggleston."

Strong, Landmarks of a Lawyer's Life, pp. 81, 86; Costigan, Cases on Legal Ethics, p. 176.

In the Tweed case, the grounds of objection raised matters of law, which might be saved on the trial, and then reviewed upon appeal. Hence the paper did not set forth the basis for a technical "recusation", as now understood.

It would have been quite enough for the judge to have remarked apropos of this paper, "Gentlemen, I have your communication, but the trial will go on; and at the proper time you may make your motions, or otherwise protect your rights"-without taking occasion to cast aspersions upon counsel.

Those who are disturbed by these recent innovations in respect to judges may look for ill effects, both upon the judge and upon the public. The French Codes of Procedure, however, for three generations, have set forth the ground to recuse a judge, going even to the minuteness of his having eaten or drunk with one of the parties in their house, pedente lite! Such standards of propriety have now become accepted, so that for many years no contests have arisen in France as to conduct of a judge leading to disqualification. The right under our Federal Judicial Code to question the fairness and impartiality of the judge, therefore, should have an influence such as is expected from the "Proposed Canons of Judicial Ethics," being prepared by the American Bar Association.48 Both will tend to set out fair standards for public and professional criticism. And as Lord Cairns once said:

"All judicial utterances are open to public criticism, however sharp. It is for the public to judge whether the criticism is well founded, or is decorous."

It is of great interest that, at this time, our common law country now goes back to the Justinian Code, so as better to hold up the good fame of our courts. It adopts an ancient safeguard to make surer that all litigations may proceed sine suspicione. At last the Federal Congress follows the civil law, undeterred by Blackstone's fears of its "idle comments, obscure glosses, and jarring interpretations." He dreaded it, because he said "the more ancient any system of law is, the more it is liable to be perplexed with the multitude of judicial decrees."'49

Yet this simple method, tried out among all civil law communities, and observed in the courts of the Church, during almost fourteen centuries, seems not yet "perplexed with a multitude of judicial decrees."

489 Am. Bar Assn. J., p. 449 (1923). 49Commentaries, Bk. III, p. 328.

I. MAURICE Wormsert

At the present time the courts and the legal profession are receiving a great deal of criticism, and in many instances this criticism is entirely justifiable. While it is true, that almost from time immemorial, lawyers have been made the butt of jokes and ridiculed even by as great a man as Shakespeare, and actually threatened with extermination as far back as Jack Cade's Rebellion, yet it seems that to-day the dissatisfaction is becoming more general and that the respect for both the Bench and Bar is decreasing.

What is the reason for this attitude on the part of the layman-and what is the remedy?

There are three fundamental evils. First, the intolerable delay of justice. An ordinary breach of contract action in the Supreme Court of New York County takes practically two years to be reached; and a tort case may be reached in more nearly three years. If a man from Mars came down to Earth to-day and was told this, and that it constituted part of our system of justice as between man and man, he might be tempted to ask for a padded cell in the nearest asylum. This is the first evil,-the intolerable delay of justice.

Secondly, there is the lack of an efficient and businesslike administration of justice. The Supreme Court does not even make a pretense of businesslike, efficient, and economical self-administration. There is nothing to prevent a Justice from declaring a recess at any time, perhaps for only a day or two, or possibly for a month or more, without assigning any reason, or being held amenable to any authority; or from putting on his hat and coat, and walking off for a month. In the meantime, of course, the people must pay not only his salary but the salaries of his secretary and others. This is unbusinesslike and uneconomical, to say the least.

Thirdly, and this is the most serious, there is the wrong point of view on the part of too many of our judges, who are so bound by precedent and tradition instilled in them from their early training, that they regard the law as abstract and apart from life, whereas, in truth and in reality, the law is a part of life, nay, an integral and inseparable part of life.

*An address delivered before The Bronx County Bar Association, June 8, 1923. †Of the New York Bar; Editor of the New York Law Journal; Professor of Law, Fordham University School of Law.

There are a great many judges who, though honest and learned, have no conception or understanding of the proper juridical point of view, and that is something which I am going to dwell upon more than anything else, because it is my firm conviction that the failure of the Bench to have that point of view is due to the Bar, and the failure of the Bar to have that point of view is due to the law schools, and the failure of the law schools to have that point of view is because our conditions might have been edifying to Lord Coke in the reign of Queen Elizabeth, but are no more suited to A. D. 1923 than a mediaeval battle-axe would have been suited to an assault on a first line trench in Belgium in 1917-18.

Any creation of an abstract system of reasoning, separate and distinct from the exigencies of the times, cannot be a means of rendering justice as between man and man, and hence is likely to lead to oppression, and finally to discontent. But to say that at the present time the administration of justice is hampered and bound by rules and maxims and precedents that society has outgrown, is merely to reiterate that which has been true at practically every step in the evolution of society. The tendency at every period, just as it is now, has been to regard the law as a bundle of little maxims, little rules, little black letter texts, which can be tied up with blue ribbon, memorized and automatically applied. And the close adherence to these fixed and arbitrary rules has led to the establishment of a separate branch of reasoning known as "legal reasoning," distinct from "natural reasoning."

Lord Coke, one of the greatest technical jurists the world has ever known, in answer to a statement by King James, that, if law was reason, he, King James, could be relied on to render judgment, said, "True it was, that God had endowed His Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an art which requires long study and experience, before that a man can attain to the cognizance of it.”1

This statement is typical to-day of the reasoning of those who believe that the law and common sense, i. e., "natural reason," are separate and distinct, and that cases should be decided only according to this system of artificial reasoning. In other words, that law is something mystic, something artificial, something which requires The italics are the writer's.

special, technical, and, above all, legalistic tendencies in order to comprehend.

The fundamental difficulty with law and judges and lawyers to-day, the difficulty which results in the real mischief, namely, the failure to take the proper juridical point of view, when closely analyzed comes down to just one thing: The law is looked upon by nine judges out of ten and by nine lawyers out of ten as a thing apart from life, whereas, in truth and in reality, the law is a part of life. To vary the preposition is to alter the entire point of view.

Hobbes, a great thinker, poked fun at Coke's theory in his dialogue between a lawyer and a philosopher. Professor Nathan Isaacs, in an admirable paper, "How Lawyers Think," printed in the Columbia Law Review for June 1923,2 emphasizes the same point. Judge Learned Hand, in an interview in the New York Sunday World for March 12, 1922, well said, "Too many lawyers imagine that the law is an exact science, an inflexible set of formulas to which life must subscribe."

The judge's tradition, the lawyer's tradition, and the law teacher's tradition, are that legal thinking is radically different from ordinary human thought; in other words, that there is something holy and particularly sacrosanct about it. The ordinary member of the laity, the average minded man, is traditionally opposed to such judges' and lawyers' pretenses.

It is still more remarkable that these very rules or abstract principles, that are regarded as so venerable to-day, may be the laughing stock and mockery of the next generation. Rules which were looked upon as sacred a hundred years ago, admired by the Bar, revered by the Bench, and respected by the public, are now laughed at as

nonsense.

Take as an example an illustration from the law of contracts. In 1600, the rule was that where two persons had entered into a contract, each one was bound to carry out his covenant irrespective of whether or not the other party was ready, able and willing to perform his counter-covenant. In the famous case of Nichols v. Raynbred, where one party agreed to sell a cow and the other party agreed to buy it, the seller was held bound by his covenant to deliver the cow even though the buyer was not able, ready and willing to pay the agreed price; conversely, the buyer would have to tender the agreed price at the appointed time and place even though the seller were unable and unwilling to deliver the chattel.

223 Col. L. Rev. 555 (1923).

'Hobart (Eng.) 88 (1625).