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Evidence in the Case
Condensed from The Freeman (Jan. 24)
1. When justice is a mockery. 2. The wasteful complexities of the law.
3. The fetish-worship of technicalities.
4. Little legalistic flim-flam in English courts.
5. Death penalty for even proposing unpopular laws in ancient Greece.
THE higher State Courts of New
now running three
years behind their calendars and falling back steadily; in fact we have the word of a Justice of the Supreme Court that there are cases now listed which cannot come to trial for five years. So it is planned to rush a law through the State Legislature to increase the already generous supply of judges. The number of cases awaiting trial in the Supreme Court is said to be upwards of 25,000. Other cities throughout the country report similar degrees of congestion.
It is obvious that under these circumstances the term justice is a mockery. By the time a legal issue comes to trial, the essential facts have grown stale, witnesses have died or moved to other places, conditions and even the applicable law itself may have changed materially, and one or both parties to the case may have suffered irreparable losses through the delay. In criminal cases, the extraordinary retardations have placed murder, burglary and similar activities in the class of extra-safe Occupations; while less violent infractions of the law, such as bootlegging, have almost taken on the quality of vested interests.
It appears to us that the blame for this intolerable condition rests pri
marily on the members of the legal profession. They form an overwhelming majority of those persons engaged in the manufacture of laws, and the machinery of practice and interpretation is wholly in their hands. No layman can sit through a day in court without the feeling that if ordinary business-processes were conducted in such a leisurely fashion, with such wasteful formalities and tricks and jockeyings and technical retardations, often of a patently dishonest nature, the bulk of our population would speedily be reduced to the verge of starvation. Mr. Richard Spillane of the Philadelphia "Public Ledger" recently recounted the impressions of a business-man, who was compelled to waste a full day waiting in vain for the calling of a case in a minor court, in which his appearance was necessary. The case preceding his involved the theft of two dollars; and after the jurors had passed all the long, mystic tests and a few witnesses had spoken, the facts seemed clear enough in spite of persistent obscuration by both attorneys. Yet though the case began early, it was mid-afternoon before the last witness stepped down. Then, instead of instant decision, came the battle of the winds. lawyers for each side protractedly bellowed and thundered, and after they had rumbled themselves out, His Honor took up the theme of dividing a hair 'twixt south and south-west side. "The case," wrote Mr. Spillane, "was as simple as ABC, but the charge the judge made to the jury was as complex as a Sam Lloyd chess-problem. He explained the law in its bearings on this phase of the case and then on that. Next he turned to a definition of reasonable doubt that left everybody doubting everybody and everything. Then he wandered into new fields. . .From a perfectly
clear understanding of the case, the people in the room accumulated fog in their brains." Professor Pount maintains that this forensic extravagance is a survival of pioneer-days, when oratory was almost the sole intellectual diversion, but in any event the habit puts a grave handicap on justice.
2. A similar evidence of wastefulness came under the observation of Mr. James C. Forgan, President of the First National Bank of Chicago, when he was serving as foreman of a grand jury. With his lay colleagues he was compelled to sit patiently while the zealous district attorney expounded the law and the evidence in a case concerning the burglary of the home of a corpulent colored mammy, who discoursed with great volubility while she waved about a greasy corset, the stolen property, which was the evidence in the case. At the close of a weary day Mr. Forgan remarked to the district attorney: "Can't you lawyers devise some simpler and less expensive way to investigate such matters than to take twenty-three business-men away from their affairs?" As yet there has been no answer to this question.
3. Another prolific source of waste and frustration in the courts is the peculiar fetish-worship of technique. There is, for instance, the famous Missouri Case," which, after elaborate procedure, was thrown out of court because where the statute was quoted in the indictment, the word "the" had been omitted. In pleading, as well as in trial practice, similar dilatory technicalities are usual. The "Journal of the American Judicature Society" cites a case in which certain persons were convicted of using the mails to defraud in connexion with a realestate scheme. Though the facts apparently were simple enough, the indictment covered ninety-one printed pages, and the defendants filed sixtyseven demurrers to each count.
to the layman, the time-destroying intricacy of such procedure is obvious. "Under English and Canadian practice," says the "Journal," "the
prosecutor, instead of working for weary days to produce a pleading monstrosity of ninety-one printed pages, would have merely accused the defendants of using the mails to secure money under false pretences, stating the particulars in half a dozen lines."
4. The English judges customarily give ear to the proceedings before them, and at the close render an immediate oral decision from the bench. American judges too often sleep unobtrusively through the testimony or lose themselves in gentle musings, so that their decision must be withheld, and eventually appears in an elaborate written document, not infrequently of some obscurity. The English judges are dictatorial; they ruthlessly shut down on the oratory, and the legalistic trickery and hair-splittings, and get on with the business. Our judges let the lawyers tangle up the case interminably with pleas and motions and evasive technicalities. Of course it is in jurycases particularly that exhibition of legalistic flim-flam and the wasting of time are most conspicuous, and this form of procedure is the rule in American courts. In Canada, jurytrial is waived in ninety-five per cent of the cases; in New York ninetenths of the cases are submitted to juries.
5. The flood of new laws ground out is a cause of congestion which lawyers seem to underrate. In the New York State Legislature alone, in a single fortnight, about a year ago, 587 bills were introduced, and in a single day 315 measures were "passed on,' most of them being advanced to the final reading prior to passage. This gives an indication of the tremendous burden of new laws unloaded on а suffering people each year, a burden that makes one think wistfully of that ancient Greek city where anyone who proposed a new law was compelled to explain it in the public forum with a rope around his neck, to be used promptly in case the proposal did not meet with the approval of the population. While it is true that the major part of our great tally of new measures are petty graft-bills of one kind or another that do not effect legal interpretation, an appreciable percentage of them tend to increase the amount of litigation and retard our legal machinery.
The Public Debt Mania
Condensed from The Saturday Evening Post (Jan. 13) Garet Garrett
HE burden of supporting the
T Federal Government is quietly
shifting from unearned to earned incomes. The proportion of the income tax paid by those earning less than $100 a week increased in one year from 10 to more than 15 per cent of the total. It is getting easier for those who are already very rich to stay that way and harder for everybody else to get rich at all. The explanation is that the rich man dodges the tax collector by investing his capital in securities free from income tax levy. This makes it necessary for the Government to take more and more from the average taxpayer-from the seven million persons who earn from $20 to $200 a week-and the end of this cannot be indicated save by strong words.
Edwin A. Seligman, professor of political economy at Columbia University, testifying before Congress, said: "The issue of tax-exempt securities creates a class of non-taxable individuals—a fundamental infraction of democratic justice in taxation. In France under the ancient regime the clergy, the nobility, the lawyers, were not taxed. These class exemptions and privileges helped bring about the French Revolution. What we are doing now is to create a class of privileged individuals, and that is the worst kind of privilege in a democratic community.'
The deluge of tax-free bonds is from states, cities, towns, townships, counties and minor political subdivisions upon which state legislatures confer the independent power to incur debt. Generally a state imposes a limit upon the amount of money a city or a town or county may borrow. That is not in the least embarrassing.
When that limit is reached it is only necessary to create a new political subdivision. A city then needs only to declare any part of itself an independent school district, a lighting district, a park district, or what not, and go on selling bonds-the same place, the same people altogether, but a new political entity. There are districts of every sort: library, sanitary, irrigation, boulevard, levee, sewer, road, fire, ditch and special districts-districts for anything you like. And these bonds cannot be taxed by the Federal Government! The states cannot tax the bonds of the Federal Government; therefore, the Federal Government cannot tax bonds issued by or under the authority of the states.
Never had it been otherwise. So long as the states and municipalities had to sell their bonds in fair competition with bonds of all other kinds, on their merits, there was no problem. Then came the Federal income tax. It was a new principle, a graduated tax rising from 4 per cent on small incomes to as much as 73 per cent on incomes of $1,000,000 a year or more. Banking houses everywhere began at once to issue tables showing the advantages of taxexempt bonds. For example, for an investor with an income of $250,000, the tax-free bond of a Kansas town is equal to a 12 per cent taxable bond. And of course there is no such thing as a good 12 per cent bond. Naturally, rich investors, all with one impulse, began to put their money into the tax-free securities. The demand for them suddenly became enormous. And it is a law that demand will create supply.
Overnight, as it were, the 48 states, thousands of cities, towns, counties
and independent political subdivisions of every sort, find it not only easy to sell bonds, but they are encouraged and solicited to do so. Hitherto they have had to importune the banker. Now the banker, whose customers are clamoring for tax-free bonds is only too willing. A town of 2,000 in Iowa is in better credit than the Pennsylvania Railroad. Prior to the Federal income tax the output of bonds by states and their subdivisions was about $350,000,000. It has risen to $1,250,000,000 a year and is still rising. The total indebtedness of the states and their subdivisions was $4,500,000,000 in 1913. It now is $9,000,000,000. Most of this increase has taken place since the
Public borrowing is notoriously carefree as to the evil day. Never was it more optimistic than now. The difference between public and private accounting for borrowed money is vast. And it follows that where there is no strict accounting for what is done with the money there will be laxity in the spending of it; also, that where nothing is pledged that the creditors may seize in the event of default the spirit is free from that anxious sense of debt which comes of the certainty that if you do not pay you will lose the house. In Texas they are issuing 40year bonds to build roads. When you say, "But when these bonds come due there won't be anything left of those highways but the location," they say, "We'll all be dead by that time." In Ohio, at the last election, two amendments, one to prohibit the sale of bonds to meet current expenses and another proposing that the life of a public bond should be limited to the probable life of the work for which the proceeds were spent, were both beaten by a large popular vote.
On the evidence of its statistics the Bureau of the Census says three-quarters of all American cities are living beyond their means. They spend more than they take in. Yet a private corporation that issued bonds to meet
current expenses would
on the face of the case be insolvent. Nobody would take its bonds. Not so with a state
or a city. In 10 years the total indebtedness of California (state, cities, etc.) has increased nearly two and a half times, the per capita cost of government has increased from $40 to $91 a year; and yet it was proposed to issue state bonds up to $500,000,000 to develop the state's hydroelectric power. In the last six years since Detroit deserted the pay-as-you-go basis of living, its bonded indebtedness has increased from $24 to $120 per capita, its tax levy has increased about fourfold, and it is nowhere near ready to stop. It is buying out its street railways, and a $5,000,000 war memorial is projected. Its case is not unique, not at all exceptional.
The temptation to have the biggest, widest, tallest, finest thing of its kind is almost irresistible. The result is that many cities, departed only five or six years ago from the pay-as-you-go principle, now find interest and sinking-fund payments on borrowed money consuming a quarter, even a third, of their entire revenue. Taxes increase at an alarming rate. In the cities it is notorious. In the country and small towns it is quite as bad. On a farm in Nebraska, owned by William J. Bryan and his brother, taxes increased in six years 500 per cent. Probably never before in the history of the country, or any country, has civic environment been so rapidly improved. Yet there is the moral fact quite overlooked that as to many of these extremely desirable aesthetic possessions, if a community cannot afford them out of taxes direct, it cannot afford them at all.
Enormous sums of capital that would normally flow toward industry and transportation are captured by the public_borrower for uses that are wasteful and unproductive. Mr. Mellon, Secretary of the Treasury, says: "This diversion of wealth from productive enterprise is having a most unfortunate and far-reaching effect upon the development of the whole country.' For example, in one year the investors of Wichita, Kansas, bought $30,000,000 worth of tax-free bonds. In Wichita there is an important flour mill. This past year it has been working below capacity because it could not get enough freight cars. There has come to be a chronic and very serious shortage of freight cars on the whole American railroad system. Now, if the Wichita investors had loaned that $30,000,000 to the railroads to build cars with instead of lending to little towns to build colosseums, play-grounds, parks, white-light ways, decorative bridges, etc., Wichita's flourmilling industry might now be working at full capacity. Would that be better or worse? In Great Britain, where there has been long and intelligent experience with the income tax, it is the other way. Unearned are taxed more heavily than earned incomes.
Lincoln's Living Memorial
Condensed from Pictorial Review (Feb.)
Ida Clyde Clarke
"Mthar ye'll be too late." It was
[AW, if ye don't hurry down
the tragic eagerness in Mary's voice that gave Mrs. McAfee courage to make the most momentous decision of her life. Wonderful stories had been coming to the barren cabin in the Tennessee mountains of a place down at Cumberland Gap where boys and girls could "larn to read readin' and write writin'," and it was even reported that work would be accepted instead of money in exchange for this wonderful privilege. After long argument Maw had decided to take the long, rough journey over the mountains to see if it could be true-Maw, who had never been ten miles from that spot in her life! John McAfee didn't believe in "book-larnin'," while his wife had always "had a hankerin' fer it."
Dean Ford is a kindly man, and it was hard for him to tell Mrs. McAfee that what she sought was impossible. But, alas, on his desk was a long list of boys and girls who were pleading to work in exchange for an education; but there was no money available with which to pay them. And fifty dollars was more money than Mrs. McAfee had ever seen at one time! Suddenly a light came into her faded eyes.
"Wouldn't you take our cow in place of that money?" she asked. And within a week Mary and John were enrolled as students at Lincoln Memorial.
2. In the great Appalachian region of the South three and a half million of these pure Americans, descendants of the original Jamestown settlers, are waiting to be Americanized. There are boys and girls of the new generation, like Mary and John, who are hungering and thirsting for education. Our philanthropists have interested themselves far more in the immigrants than in our native-born. May it not be worth while to free these, our own people, from the bondage of ignorance? How worth while they are, these boys and girls of the mountains! This country has been called the birthplace of statesmen and soldiers. Abraham Lincoln was born in a log cabin in the Southern mountains. At twenty-one Andrew Jackson could neither read nor write. Sam Houston, one of the most brilliant personalities in American history, was of these mountains. David Farragut, who brought enduring fame to our navy, lived within a few miles from the McAfee cabin. James K. Polk, who became President, and fighting Andrew Jackson were products of the mountain country. William G. McAdoo is a mountaineer. Yes, it seems
that mountains make men.
3. And back there in the mountains today are men and women with the spirit of Lincoln and of Clay and of Jackson and of Farragut-who have been pure, 100 per cent Americans for nearly 400 years, and forgotten and neglected by their own people. Woodrow Wilson has said that "These are a great people stored away by Providence for a time of