CHAPTER VIII

JUSTICE FOR ALL

THE Declaration of Independence asserts that “all men are created equal." This is not, of course, the announcement of a biological law, but an emphatic way of saying that all men ought to have equality of treatment-equal security for life and limb, equal access to the means for developing their capacities, equal opportunities for the pursuit of happiness. There must be here no hereditary office or rank, or social class; every career must be open to anyone who can make good in it. "Every American is as good as his brains and character and manners, and no better." This is the second great principle of Americanism. De Tocqueville hardly exaggerated when he said that we were so devoted to it that we had rather be equal in slavery than unequal in freedom.

Equality cannot be secured by a mere absence of discriminatory laws and customs. Life is like a handicap race; much must be done for the weaker among us to secure for them an opportunity for happiness equal to that of their stronger or more fortunate neighbors. But the foundation must be laid in an absolute equality of all citizens before the law. Not only must every citizen have the protection of the law from injustice and injury, anywhere in the world, on land or on sea, and a right to fair trial by due process, whenever accused of wrongdoing, but,

most essential of all, he must have assurance of an administration of justice that is impartial toward rich and poor, high and low, educated and ignorant, white and black.

If we have had no personal experience to refute our optimism, we shall naturally assume that this is the case in America. But a little study of the facts shows that our ideal is not completely realized. Many of our conservative statesmen and lawyers, as well as more radical writers, have expressed opinions similar to that of ex-President Taft: "Of all the questions which are before the American people, I regard no one as more important than the improvement of the administration of justice. We must make it so that the poor man will have as nearly as possible an equal opportunity in litigation with the rich man; and under present conditions, ashamed as we may be of it, this is not the fact."

In what respects is it not the fact? Well, in the first place, it costs more than a poor man can afford to hire a good lawyer to defend his case. The rich offender has at his command the services of the cleverest attorneys, who are skilled in the many technical devices by which justice can be delayed or sidetracked altogether. At least, every extenuating circumstance will be emphasized, every precedent favorable to his case will be hunted up, every resource of dialectic and persuasion brought to bear upon the witnesses and the jury. A highly paid alienist may testify to a temporary fit of insanity on the part of his client. Altogether, cases are well known in which rich men guilty of the worst crimes have escaped with light penalties or with none.

The law does, indeed, provide for the defense of every man accused of crime, by assigning counsel to

those who cannot afford their own lawyers. But these are usually unsuccessful lawyers, no match for the rich man's attorneys, and often little interested in the cases assigned to them. It is a common belief among the criminal classes that conviction or acquittal depends upon the sum they can pay to their counsel. There are a great number of "shyster" lawyers who get what fees they can collect from the poor, and render little or no service in return; in some cases they do not even take the trouble to go to court when the case comes up.

An ex-convict, writing in the Outlook for December 27, 1916, declares that among the men who went to trial "a majority seemed to believe that freedom or imprisonment was largely a matter of money. If they could raise enough of this to secure certain lawyers, the result was almost foreordained. And certainly there appeared solid ground for this belief in that these men did secure verdicts of 'not guilty' for several scores of prisoners who had made little secret of their guilt while among us. . . Study of the situation reveals that not more than ten per cent of criminals have the means to engage really capable attorneys. And usually these are of the types most dangerous to society. . . . The criminal lawyers have taught the professional criminal that he can 'get away with anything short of murder' if he has the money."

Now, however common or unusual this situation may be, it is intolerable that even the suspicion of it should rest upon our judicial system. At least this much should be done: defense, like prosecution, should be recognized as a public matter; there should be Public Defenders, as well paid as prosecuting attorneys, well enough paid to attract to the position

men of ability and experience. The securing of justice requires as great skill in defense as in prosecution, and an equal skill available to rich and poor. If this plan, already in practice in some American communities, is universally applied, we may hope to substitute in the minds of the poor a genuine respect for the law for the contempt and fear that they now too often feel. Society must be protected equally against jugglery of law and evidence in favor of the rich offender, and an inadequate hearing of the case of the poor.

It

Still more serious than this weighting of the scales of justice in favor of rich offenders is the trend of judicial decisions and interpretations in favor of the possessing classes as against the working-man. has been often said, and not without show of reason, that the majority of our lawyers and judges, coming from the upper stratum of society, are unconsciously prejudiced in favor of property rights as against human rights. This, at least, is a widespread conviction among the poorer classes; and it must receive the gravest attention; for nothing could bode more ill for our Republic than the growth of this conviction that justice is a class affair.

To realize the extent of this conviction we have but to read the resolutions unanimously adopted by the American Federation of Labor at its convention in 1919. An extract follows: "Our organization of law presents a mass of inconsistencies and contradictions. While organizations of capital are encouraged and protected, combinations of workers are constantly attacked. While employers may unite and combine against workers and against the buying public, the right of the workers to resist encroachments and to right admitted wrongs is constantly

being interfered with. . . . Whenever an officer of an incorporated financial, industrial, or commercial enterprise exceeds the power specifically delegated to him, the courts declare his act ultra vires and the company is absolved from all responsibility. But when a labor man at a trade union meeting makes utterances which are condemned by those in authority, the union and its members may be robbed of their funds and savings.

"It was the spirit of the jurisprudence of slavery which forbade the slaves the opportunity to read to defend themselves; and so it is the jurisprudence of employers of today to continue doctrines which deny the workers a full opportunity of defence. The time has passed, however, when our courts should be longer permitted to devise legal doctrines and design local fictions by which to deny the wage earners equal rights and privileges before the law

"The power of our courts to declare legislation unconstitutional and void is a most flagrant usurpation of power and authority by our courts and is a repudiation and denial of the principle of self-government recognized now as a world doctrine. The continued exercise of this unwarranted power is a blasphemy on the rights and claims of free men of America."

We have already had occasion to notice that there have been a great number of cases in which humanitarian legislation, legislation favoring working-men and women, has been set aside as unconstitutional by the courts because it interfered with property rights. Eight-hour, and even ten-hour, laws; laws forbidding tenement-house labor of certain sorts; laws forbidding child-labor; laws requiring payment of wages in cash instead of truck; a law forbidding employers to