cause many witnesses find in an oath, added compulsion toward the truth. Their conscience is impressed by the special commending of their words to the attention of Deity. Yet for the bulk of witnesses, the fear of certain prosecution and imprisonment, sharpened by salutary public examples, would win more converts to the truth than the dread of damnation beyond the grave.

Here, then, is an offense which is most grave in its consequences. It menaces that which is the very life of the social compact, the administration of justice. It spreads anarchy in the very temple of law and order. It saps the confidence which underlies commercial prosperity. It deadens that sense of reverence for justice and of obligation which is the essence of true patriotism and the bulwark of American institutions. It converts the solemnity of the sacred invocation into blasphemy. Why then in practice is it more of a privilege than a crime? Why is it allowed to be fertilized by substantial immunity?

22

A share of the responsibility rests upon the judges in our courts. That responsibility and the shirking of it were both bluntly declared by Mr. Justice William J. Gaynor-afterward Mayor of New York-in an article in "Bench and Bar," wherein he said:

"The chief responsibility for such perjury in the courts is with the trial judges themselves. Do you ask why this is so? It is because they have the power to stop it and do not stop it."

By this statement, the learned jurist—himself an experienced trial

judge-meant that under t the trial judge is authorized, tecting a witness in perjury marily to put him under ba prison to await criminal prose The witness would stick more to the truth if he knew the judges in this country were habit, as they are in Engla committing perjurers on th And the lawyer would hesit more about offering perjure mony if he knew that the tria had the courage to ask the Ba ciation to investigate his con

Wherever the judiciary or single determined judge ha experiment of these summar ers, the atmosphere of the room has been cleansed as electric fan, and the calenda been cleared by the sudden d of unworthy causes.

Concerning such an experi Brooklyn, Judge Gaynor w the article referred to:

"Some of the trial judges i County in the Supreme Co in the County Court have i years summarily committ jurers under this statute Code, sec. 102), and the ef surprising. Cases on the da dar were speedily abandon such a commitment-some n 'witness' would not come scratch, as the saying islength of the day-calendar h increased for a week, or weeks, thereafter, in order ready cases enough to keep of court busy. On the daily c fell by the wayside in unusu bers."

The detection of perjury tinct from securing a convict

formal trial, is not difficult. An experienced trial judge should be able to tell perjury almost at a glance, to know it even as it peeks in the court-room door. A seasoned lawyer senses it in the air.

Hence, the failure of the judges to make this experiment continuous and universal is the chief reason for our scandalously congested calendars and for the unworthy delays of the law. Bar associations meet in solemn conclave; committees of judges and lawyers are assembled; and the jurisdiction of courts is reduced, in order to devise ways and means for unlocking the ball-and-chain on the foot of justice. Let it be frankly said that they do not succeed because they do not deal with the central cause. They do not study to exorcise from the temple of justice, the possessing devil of perjury. It is this devil that fills the calendars with blackmailing complaints and sham defenses. It is this devil that stages long and expensive trials which otherwise would not have occurred. It is this devil that spawns dilatory motions; furnishes the tricks for the crooked lawyers; makes the ordinary citizen disgusted with the courts; sends honest men to jail and turns loose on the community, predatory lawbreakers of every kind. It is this devil that is dulling the public conscience in the very place where it should be keenest; that is undermining the confidence on which commercial prosperity depends; and that is poisoning the well-springs of sound government.

That the trial judges thus do not, except in very few instances, deal summarily with the probable perjurer, is justly the subject of wonder.

One of the reasons lies in their fear of the meddlesomeness and the criticism of appellate judges as to matters which ought to rest in the discretion of the judge presiding at the trial. Many of the signs of probable perjury-hesitancies of speech, delays in answering, duplicity of manner, furtiveness of expression-are too impalpable to be photographed in a printed record on appeal; and hence that which is in reality righteous indignation in the protection of justice, may in a column of cold type seem suggestive of arbitrary or even of despotic conduct.

Tradition and precedent have stripped our American judges of much of the freedom of action and expression which English judges employ in guiding a jury to just conclusions. The American judge too often feels bound by custom and decision to be a mere moderator, a sort of parliamentary speaker, who keeps the court-room in order, the lawyers in decorum, and the evidence within the rules of law. Under this cult, the facts speedily become a fetish which only the jury may approach; and, in consequence, falseswearing enjoys an almost unchecked growth. The inexperienced juror may not see a perjury which is plain enough to bench and bar, for "What a goodly outside, falsehood hath." Moreover, the jury as a body has no power to punish or to denounce perjury, even if it detects it. But the trial judge, yielding perhaps unconsciously to the American tradition that all matters touching the facts are solely for the jury, too often feels that responsibility for the detection of perjury rests wholly with the triers of fact, and that the

false oath is sufficiently penalized by the hazard of an adverse verdict. He also feels that a commitment on the spot, or even a denunciatory comment, may be interpreted by an appellate court as having unduly prejudiced the free deliberations of the jury, as if it were better to match the wiles of the perjurer and the resourcefulness of his lawyer against the inexperience of the jury than against the trained mind and practised eye of the judge. Moreover, in many cases the judges themselves sit as triers of facts, and hence may summarily deal with perjury without danger of unduly biasing a jury. Of course, this summary power of the trial judge to arrest a witness in the act of probable perjury, might, like any other power, become the subject of abuse. But it is a feeble and fumbling system of justice that abdicates its powers through lack of confidence in itself. Litigants and lawyers shape their conduct by judicial action, not by judicial theory. The present judicial truce with perjury is having consequences disastrous alike to justice, to public morality and to the nation. The crisis calls for action in accordance with the military slogan: "Treat 'em rough." The possible abuse of power by a trial judge is as nothing in comparison with the present outrageous abuse of judicial timidity and blindness by witnesses and lawyers.

The courts also can aid by increasing the severity of the sentence where a person convicted of some crime has clearly been guilty of perjury in his own defense. It is not rare for courts entirely to overlook this flagrant aggravation of the original delinquency. Thereby they

encourage the making of fal fenses; increase the burdens up prosecutor's office; and do ra justice to the more honest o who prefers a plea of guilty iniquity of perjury. In the ma sentence, the courts have in power to give weight to all t cumstances, including the co the defendant during the tria

Just criticism also may be n the careless and perfunctory in which the oath is administ many courts. The solemn la of the oath is designed to dir thought of the witness to his u accountability to the State the Author of all Truth. A however, the oath is frequen ministered as if it meant n than an incantation in a tongue. If courts are indiffe the manner of the oath, they complain if witnesses are ind to its substance. The writer of one clerk of court who, co of the importance of the d ways administered the oath solemnity of tone and man with a personal directness tha not fail to call attention essential nature of the ce This clerk has found from ex that, as a result, many a on sitting in the chair, lays a carefully rehearsed fabricati to the consternation of the shamefacedly avows the tru

22

For the present epidemic jury, the bar shares with the grave responsibility.

Too often the average la gards the oath as only a lit formal than the affirmation by a signature. Affidavits

infrequently drafted according to the lawyer's version of the facts, and the client or the witness readily swears thereto without careful study of the language and in the uncorrected belief that responsibility has been assumed by the draftsman. The result is that even honest witnesses are often confronted in court with contradictory statements in their own affidavits, and are driven to the excuse that they signed what the lawyer placed before them. The lawyer in his turn steps behind the shield of his profession; and what was the responsibility of both thus becomes the concern of neither. Thereby the solemnity of the oath is frittered away; and fertile seeds of future carelessness and worse in handling the truth, are sown.

Moreover, it is unfortunately true that there are members of the bar who prefer victory to truth. The excuse that one is not one's brother's keeper makes to lawyers quite as seductive an appeal as it does to other men. Hence it is that the present prevalence of perjury lessens the dignity, as well as menaces the integrity, of the legal profession. When justice becomes a game, it is difficult not to join in with the other players and to play it according to the rules of a mere battle of sharp wits. The temptation "to fight fire with fire" becomes formidable.

Thus, the profession owes it to itself to check present recklessness in swearing. The lawyer who presents "the facts" to judge or jury has a responsibility for their veraciousness which differs but little from that of the client or witness who furnishes them. The lawyer is an officer of the court and of

justice; and as the expert agent and adviser of the client, he makes the latter's course his own. These truths can be preserved to the profession only by keeping out of it men unequipped in character to observe them, and by proper disciplinary measures by bench and bar. Let the judges show by their manner and comment that it is the lawyer and not the client who is primarily responsible to them; and let our bar associations enforce this homely truth until it becomes a maxim. Thereby the oath will become more of an obligation and less of a formality, and the ethics of the profession will be elevated. As said by an eminent jurist, Judge Sharswood, in a lecture on the Standards of the Bar:

"Instead of drawing affidavits, and permitting them to be sworn to as a matter of course, as it is feared is too often the case, counsel should on all occasions take care to treat the oath with great solemnity, as a transaction to be very scrupulously watched, because involving great moral peril as well as liability to public disgrace and infamy. It lies especially in the way of the profession to give a high tone to public sentiment upon this all-important subject, the sacredness of the oath."

And some years ago, a president of the New York State Bar Association in his annual address, declared:

"If the lawyers of this State would positively discourage false swearing on the part of their own clients and honestly endeavor to have it punished when committed by the clients of their adversary, the crime would grow suddenly less. . . . It is the professional duty of every lawyer to do this; he owes it to his fellow-man;

As regards the legal profession, the evil of false swearing is greatly increased by the evil of the contingent fee. The contingent fee leaves too little room for ethical standards. The inducement of one third or one half of the recovery is too frequently an incentive to win at any price. Thereby the lawyer and the client become partners in successful testimony by the latter. No man can serve two masters. When the lawyer is the slave of a contingent fee he seldom can also be a servant of justice. Certainly he will find it the more difficult to censure a little timely false swearing, if he has in it a private pecuniary stake. Indeed, not only as regards honesty under oath but also as regards the public interest generally, the time has come when the legal profession for the sake of its own honor, and the courts for the prevention of congested calendars, must give grave consideration to the abolition, or at least the severe regulation, of the contingent fee. It is precisely this sort of legalized gambling for high stakes that is swamping our courts with suits, breeding a swarm of unjustifiable claims, encouraging dishonest attacks on reputations, bringing disrespect on an ancient and honorable profession, fostering the

putting a premium on perjury

One of the most abhorre tures of the contingent fee the poor and the ignorant a chief victims of its malignanc very class of persons whom it be the privilege of the legal sion to protect, is often the mo lessly victimized. The medic fession holds its members under a high obligation to su small or at no cost the impe sufferer. Thus, at times, the cunious victim of an accide cripples for life, is treate humane generosity by a mer one profession and simulta stripped of half his compensa a member of another. indeed, lawyers who make a profitable business out of down the most serious ad not because the unfortunate excites their compassionate tude, but because his agony minted into money for the In such cases the contingen the prolific parent of perjury

The

Both of these cancers u body of justice can be cut ou same knife. Since every law officer of the court, laws car tutionally be passed to g court a dominating voice i contract for a contingent fee this plan, the court could fi of compensation, whereby fees would be allowed for services, or else the court cou a fair valuation on the serv whole and confine thereto yer's compensation. Under plan, the injured laborer w be stripped, as now, of one one half of his means in orde