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Laurence Gronlund.

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while the other chooses its portion. This feature will create
perfect harmony between responsibility on one hand and sub-
ordination on the other. The Foremen elect their Superintend-
ent, but the moment he is elected, he is independent of them ;
how else could he be responsible for himself and for thorn to
his superior? But by making the Chief of all in each de-
partment responsible to all his subordinates, we have vindi-
cated the ultimate rule of that impersonal Power: Public
Opinion.

One point yet remains unnoticed. Can the foreman also dis-
miss any of his workers for inefficiency or other cause? It
will easily be seen, that this is a quite different matter from
the dismissal of a directing official. When the latter is re-
moved, he is simply put back among the. rank and tile, until
elevated by a new election. He has no right to his office.
But whereto could a worker be removed? He must be em-
ployed somewhere. Of course, there must be some kind of
remedy by which Society could protect itself against any re-
bellious or ne<;lii;ent worker. For such cases a trial bv his
comrades might be provided, the issue of which might be
removal to a lower grade or some sort of compulsion.

Now. is this not Democracy?

It is certainly Administration by the People. Every citizen
will actually help in administering affairs by having some-
thing considerable to say about who is to be his immediate su-
perior. This feature is really the greatest of all. by far; it
provides akind of a primary election which is not child's play.
And that it will work well in practice the Catholic church
may teach us : cardinals elect the pope ; priests nominate their
bishops and monks their abbots. That church, by-the-way. —
the most ingenious of human contrivances — can teach us many
a lesson ami we are fools if we do not profit by them.

Such a system as that we have sketched insures Equality.
It will not make all equally wise in all matters, but it will des-
troy all irresponsible power, abolish every trace of dependence
on individuals. All authority will be a public trust; whenever



OF AFFAIRS. 133

there is Subordination on the one hand, there is on the other
Responsibility. Instead of a slavish subjection to anybody's
autocratic will, there will be loyal submission by all to the
common impersonal superior. That is a difference which the
penitent operators of the Western Union who lately signed
certain so-called contracts(!) ought to be able to appreciate.
It by no means implies negation of all impulse, all initiative
from those who are the wiser, for equality is not likeness; it
rather is synonymous with variety, just as the same soil in free-
dom products all kinds of trees.

Such a system, finally, establishes the best security for the
best administration; it will furnish us those "real rulers" for
whom Carlyle yearned. Here again we can appeal to the ex-
perience of the Catholic church, which knows how so to possess
herself of her priests, that they are as wise, acute and pushing
for her as the most consummate man of the world is for his own
interests.

But Public Opinion — the organic opinion of the people, not
what they separately think, — the Public Conscience, will rule
these "real rulers."

h\ three ways this impersonal Power will assert itself: by
the referendum, by giving or refusing those highest in authori-
ty a vote of confidence, and last, though not least, by and
through the public journals.

Our journals have really a far more representative character
than Congress or our legislatures, and. further, they are '* rep-
resentatives" in constant session. True, they do not repre-
sent the people, for they represent in no sense the working-
classes— these are as yet to all intents and purposes perfectly
dumb — but they represent very well our comfortable classes,
our ruling classes, the *• Messrs. six per cent.'' This will all
be changed in the Cooperative Commonwealth.

Some will here remark: " If newspapers are, also, to be
collective property, as we suppose they are, and published
only by public authority, we do not see much chance for any
opinion, aside from '•official"' opinion, to assert itself."

Let us observe that our present journals have three functions :

First, they are newspapers. To gather and give the news is



184 ADMINISTRATION

their principal object. And that is the main reason why they
represent the well-to-do classes, exclusively, for it takes lots
of money to get the news.

Next, they are public criers. They devote, in fact, most of
their columns to pushing and puffing all sorts of private en-
terprises.

Lastly, there is a little space left for " editorials," in which
garrulous writers, in the pay of the "Messrs. six per cent."
do the thinking for their employers; since they represent
mediocrity, it goes without saying, that it is very ordinary
thoughts they furnish, none very exciting — narcotic, rather.

In the Comming Commonwealth the first two functions will
be separated from the one last mentioned.

There will probably in every community be published an
official journal which will contain all announcements of a pub-
lic nature and all the news, gathered in the most efficient man-
ner by the aid of the national telegraph service, but no com-
ments.

But we are assured that besides these there will also be pub-
lished many private journals, true champions of principles
and measures. True, the printing press will be a collective
institution — but it will be open to every one.

Anyone — whatever unpopular opinions he may entertain,
however hostile to the administrators he may be, — will be en-
^/ titled to have anything decent printed, provided he is ready
to pay for the work done, or to guarantee by himself or
friends that the cost will be defrayed. Of course, a line must
be drawn somewhere, as has at all times and in all countries
been done. Public Opinion has always insisted upon, that
there is something it will not tolerate— and so it probably will
always be and so it ought to be.

Some one has happily characterized Oarlyle as the man who
> % brought us out of the Egypt of shams into the desert and —
left us there." Carlyle did a splendid work in bringing us out
of the shams of representative parliamentarism, but he was
sadly mistaken when he wanted us to go back to the forms of



OF AFFAIRS. 1S5

the Middle Ages. The " Eternal Silences " have decreed De-
mocracy, which in the fullness of time will transform the par-
ty-ridden American people into a self-assertive people, trans*
form the goose into an eagle.



CHAPTER IX.

ADMINISTRATION of JUSTICE
IN THE COOPERATIVE COMMONWEALTH.



u Our judicial system : a technical one, invented for the cre-
ation of costs." — Eomilly.

ki Distinguished pleaders defeat justice while establishing
points of law." — Frazer's Mag. Nov. 79.

'•There never was such an infernal cauldron as that Chan-
cery on the face of the earth ! Nothing but a mine below it
on a busy day in term time, with all its records, rules, and prece-
dents collected in it, and every functionary belonging to it also,
high and low, upward and downward, from its sou the Ac-
countant-General to its father the Devil, and the whole blown
to atoms with ten thousand hundred weight of gunpowder
would reform it in the least! " — Charles Dickens.

It is evident that in the Cooperative (Commonwealth there
will be far less litigation than now. Everyone familiar with
the business of our Courts knows, that cases arising from con-
tract contribute by far the largest part of that business. If
these were extirpated; if our Courts had to deal, only, with
cases of torts and criminal cases, the great majority of our
high-prized lawyers, now crowded with *• business," would
have to seek pastures new. Now, such cases will in the new
Commonwealth necessarily be, if not entirely done away with,
immensly reduced, at all events, on account of its taking all
<-!!tei prises of any social account into its own hands. As to



OF JUSTICE. 187

criminal cases we may be pretty sure that they will diminish
materially.

Probably nearly all the cases brought before the national
courts for determination will be those arising between the
Trades-Unions, Guilds, Corporations, or whatever they will be
called, and their members, or between the Guilds themselvess,
or, finally, between them and the Departments.

Further, when discussing the referendum we remarked, that
its introduciion would naturally tend to reduce considerably
the bulk of our statute-law and to prevent frequent changes
in the same. The immense reduction in the subject matter of leg-
islation, mentioned in the preceding paragraph, and. more than
all. the wiping out of all State-lines and State-jurisdictions,
will contribute materially to the same end. We are now in mat-
teisof legislation pretty much in the condition France was in
before her Great Revolution. Her laws, it was said, were
changed as often as were her post-horses; we may be said to
change laws as often as we do railroad-ears.

Under the future Social Order we may hope to have a handy,
compact and yet accurate and comprehensive code of last-
ing statutes, so that the requirements of law will not needs be
a mystery to anybody for ever after.

And yet, though such a change in itself will be of far-reach-
ing importance, it will constitute but a small fraction of that
revolution which the two principles of Collective Control
and Democracy will bring about in our judicial system. For
that which gives value to all laws is the method of adminis-
tering them; and that method will itself be revolutionized.

In the first place, our present method of administering jus-
tice is that ot Warfare. Our method makes of the profession
of law the art of gaining a victory; of a Court of Justice
a battleground ; it uses witnesses as soldiers and rules, preced-
ents and technicalities as weapons and engines of war. Without
perceiving this you cannot possibly reconcile the profession-
al code of the lawyer with personal morality.

Listen to this code :

If a lawyer wins a case by superior vigilance, he has dona



188 ADMINISTRATION

just what his duty requires of him, even if he knows he is on
the wrong side.

It is a proper move for a lawyer, adroitly to lead his adver-
sary away from unassailable legal positions, or manoeuvre him
out of superiority of evidence.

A lawyer must steer around, must dodge the law against him.

A lawyer should see to it, if he may not surprise his adver-
sary, or even the judge, into some action which will render a
new trial probable should the verdict be against him ; /. i,
make the judge overrule an objection by stating a flimsy ground,
while he conceals the true one. Indeed, our shining lights of
the bar do daily act on the comprehensive rule, that they may
do anything to gain the victory, except suborning witnesses
and forging precedents.

This code of the profession becomes perfectly comprehensible
in the light of the theory, that a law-suit is a campaign of war.
In fact, it cannot be defended on any other ground than the one
which allows perfidy and deceit in war. A general must van-
quish the enemy by all means, and in the same way it is made
the duty of the most conseientious counsel after he is retained,
to have this thought steadily in his mind: " How shall I
bring the judge and the jury to deeide for my client? How
can 1 cripple and obstruct my opponent? How can I make my
case appear to have the law on its side?" without for a mo-
ment inquiring into the justice of his case. To this miserable
theory, that the profession of law is the nit of warfare, of
strategy and manoeuvring, is due, exclusively, the spoliation,
the evasion, the lailure of justice, almost synonymous with
law.

Thus it explains why the profession so persistently sticks to
the cumbrous jury-system and to the unanimity of twelve
jurors.

By the way, do you know why there always must bo exact-
ly twelve? Lord Coke, the apostle of the Anglo-Saxon law-
yer, enlightens you : because there were twelve apostles, and
twelve tribes of Israel ! ! !

Whenever you lind a lawyer with a poor case, you can be
sure that nothing will make him waive his grand constitution-



OF JUSTICE. 189

al right to a jury. He has been taught that the lawyer must
use as allies even the erroneous prejudices, even the ignorance
of mankind. Then there is the delicious uncertainty about
the verdict of a petit jury, which exactly chimes in with the
warfare idea. There is a chance for a verdict in his favor, for
a disagreement, and, lastly, for a new trial . Hence such rhe-
torical laudations as this : '* No better tribunal has yet been de-
vised than a jury of twelve intelligent, honest and fairminded
men." Any suggestion that three such men. with a majority
to decide, would do as well, is frowned down by the profes-
sion. For — that would very much diminish the chances. *

Again, to this theory that it is the duty of the profession to
fiffht battles and win victories is due the fact that the decision
of a case very seldom hinges on a statute law and general
maxims of equity, but almost always on some precedent, that
is, some similar case, preserved in one or other of the thou-
sand American or English " Reports."

The citizen who supposes, that the '"law" he is governed
by is the statute-law of his state is very much in error. The
statute-law is the most insignificant fraction of our laws.
The *•• law". is something no lawyer can learn in a lifetime,
both on account of the bulk of the Reports (to which in Amer-
ica alone a hundred volumes are added yearly) and because he
never can be absolutely certain what is good, and what bad
law.

But even if a judge should be told all the decisions on a giv-
en point that are valid, he has no guide in them at all. There
stand i he decisions in two rows : On one hand those in which
a question has been decided one way ; on the other those where
the decision has been the contrary way — length of rows as
nearly equal as the heart could wish. He takes his choice and
either way he bows to the name of some ** learned "judge,
some ' authority ! "

The fatal conclusion thus is, that our administration of jus-
tice depends upon caprice. The profession divines, rather than

* An article: "Is the Jury System a Failure'?"' intheCen-
tury of 1SS2 by Albert Stickney, whom our readers know Irom
a former chapter, is worth perusal.



1 90 ADMINISTRATION

ascertains the law. And all our legislation, in spite of all codes
and all '• reforms,'" is by the address of lawyers made to rest
on precedents.

Why?

Because the theory }f warfare requires snares rather than
guides; it requires as much uncertainty, connected with as
much precision as possible. To say that lawyers have no in-
terests in the uncertainty of the law is to say that glaziers
have no interest in the breaking of windows. Because pre-
cedents are their engines of warfare, our lawyers tenaciously
cling to them and have a horror for broad principles. They
unwittingly consider that a virtue which furthers the peculiar,
sinister interests of their class.

The same theory, also, requires the innumerable technicali-
ties, rules and forms, that have as little to do with justice as
English wigs and gowns have. Our constitutions really per-
petrate a witticism, when they guarantee '* complete justice,
conformably to the laws," for these laws silently assume these
slippery rules and subtilties. To guarantee complete justice
conformably to rules that thwart justice is like guaranteeing lib-
erty inside locks and kej^s and shackles.

From this warfare-theory follows another great evil — an out-
rage upon every idea of justice. A war demands money,
much money. No man, therefore, can commence or defend
a lawsuit without a replete pocketbook. It is one of the most
expensive speculations he can venture into, and the longest
purse is pretty sure to win.

Our paper-constitutions pompously guarantee ''justice free-
ly and without purchase, completely and without denial,
promptly and without delay." Instead of that this warfare
theory gives us the triple-headed monster of Expense, Vex-*
ation and Delay.

And, lastly, this warfare theory has a demoralizing effect on
the lawyer. It gives far more credit to him who wins a bad
case than to him who wins a good one. It compels our legal
men to be partisans, to be what Jeremy Bentham sneeriugly
called them — •• Messrs. Eitherside." There is no radical dif-
ference between that " representative of the bar" who for a



OF JUSTICE. 101

fancy fee is the partisan of one party today, against him per.
haps tomorrow, an advocate of one theory one moment, its op-
ponent the next moment, and the common pettifogger. The lat-
ter is simply an irregular guerilla. What do we say of the
soldier who is today in one camp, in another tomorrow? The
rules which this theory makes obligatory on the lawyer, the
arts he must practise, if practised in any other position, would
he deemed dishonorable.

And the study and practice of the law under this method
cripples the lawyer intellectually. Take him who has raised
himself to the summit of learning by wooing that "'jealous
mistress," the law with "twenty years' lucubrations," the con-
dition fixed by authorities. In what has lie become "learned?"
In the conceit of centuries and the debris of society. Buckle
is right: ""Learning-' serves Ignorance as much as it does
Progress.

Take, next, the succesful practitioner. What does he gain
by "establishing points of law?" — some of which are as un-
profitable as the medieval puzzle : how many souls can dance
on the point of a needle '? He becomes alert, smart, undoubt-
edly. But the practice of law has the same effect as the ac-
tion of tne grindstone ; it narrows the mind as well as sharpens
it. Especially is that the case with practitioners who devote
themselves to special branches of the law. They get to have
a positive aversion to enlarged views and care no more for the
interests of mankind beyond the narrow limit of their pur-
suit than the man who spends his life inputting on the heads
of pins.

And yet the indifference of legal men to the public welfare
—as long as there are cases to try-by no means keeps them away
from public affairs. On the contrary, a lawyer takes as natural ly
to politics as a duck to water, simply because politicians and
lawyers are equally intriguers. The consequence is that their
vicious maxims, antiquated systems and contracted views are
carried over into the broad field of governmental affairs, tak-
ing the place ot enlarged views, suitable to the situation and
height of the times. Lawyers as a rule make our laws, although
a superstition prevails, that this is the work of the people;



192 ADMINISTRATION

but it is an absurdity beyond measure, that no executive of-
ficer, in purely administrative matters, can take a step without
consulting a cramped, in such affairs essentially ignorant, law
officer, placed at his elbow.

In the second place, it is a part of our method that the judges
make law for the people.

What are those precedents we mentioned, which make up
by far the greater part of the law we are governed by, and
which , in our country alone, are manufactured at the rate of
a hundred volumes } r early? They are nothing but ''■judge-
made law,'' " counterfeit law " in the words of Bentham. Of
such " law" here one example, only:

Our national constitution provides, that no state shall pass
anv law, impairing the obligation of contracts. Chief Justice
Marshall, by our lawyers surnamed " the Great," took upon
himself to say — in the celebrated Dartmouth College case-
that this provision should be so construed as to prohibit the
people from altering charters and withdrawing privileges, grant'
ed by themselves to corporations. And such is the law since
that " great" decision was promulgated.

No, one more instance, lor it is too interesting to omit. Do
you know, why Christianity is a part of the Common Law of
our country? Because an English judge, Lord Mansfield, mis-
translating two words of a dictum of somebody in the 15th cen-
tury, called a ncitn scripture (Norman French, meaning: an-
cient writing) — ,k holy scripture ! ! ! "

And this extraordinary power of our judges means, that they
can provide a law for cases after they arise. As Bentham said :
" They proceed with men as men proceed with dogs. When
your dog does something you want to break him of, you wait
till he does it and then you thrash him for it. That is what
judges do to suitors whom they make reluctant heroes of a
leading ease/' They, thus, exercise a power which is express-
ly forbidden to the legislators.

But that is not all.

The people's " representatives" pass a certain law. Tho
Deople obey it and act under it. Afterwards a judge delivers



OF JUSTICE. 193

himself of this piece of wisdom to some poor wretch whom
he has got within his jurisdiction : •■ [ declare that law to be
no laic at all. You were presumed to know that all the time.
When you acted under this so-called law, you did so at your
peril." Is not that to make the minister of the law superior
to the law itself? Certainly it is. Hear Horatio Seymour in an
article in the North American Review : " The great distinguish-
ing feature of our government, where we stand alon^ among
the peoples of the earth, is placing the judiciary above the ex-
ecutive and the lawmaking power."

Yes, and above the paople in their organic capacity. The
fate of the constitution which the people of California lately
adopted may lead us to doubt, if it is possible for the people
in their primary capacity to frame an organic law, that will
not be so misconstrued by judges as to defeat the very pur-
poses they sought to accomplish.

Against lawyers and judges, then, the people are a cipher.
Let the people signify their will in a way they think cannot
be misconstrued — the judges come with their dignified coun-
tenances, saying: '• You, people, do not at all know what you
will, for you will quite the contrary of what you have said."
Some people talk of priestcraft and ascribe all sorts of hor-
rors to it! The priesthood that is dangerous may not be the
one that preacheson Sundays, but the " learned " ones to whom
on week-days law and reason, justice aud the public welfare
are merely subjects of play or caprice.

Now we can say for certain that under the Cooperative Com-
monwealth this method will be radically changed, — our two
Socialist principles will not permit its continuance. We may
be certain.

First* that judges will not be allowed to make counterfeit laws.

That will be a necessary consequence from the democratic
principle, that what the people have not sanctioned is not law.
Every case will be decided on its merits — according to the law
as the people have sanctioned it, without regard to any precedents
whatsoever.

Precedents, then, the dry worthless historical knowledge on



194 ADMINISTRATION

which our legal men have constructed their sham-science,
called ••jurisprudence, 7 ' will thus be Sv/ept away under their
feet, as was done in France by the Revolution and tbe Code
Napoleon. That this code has been covered up with new pre-
cedents, twenty times as voluminous as itself by the lawyers
having commenced their refinements over again, thus clog-
ging the wheels of justice as much as before, is due to the sup-
pression of the principle of democracy.

Second, it will follow, even more necessarily, that judges
will no longer be permitted to nullify laws, since in the Coope-
rative Commonwealth what the people have sanctioned is law.

This monstrous guardianship of the judiciary over the peo-
ple, dictating to them and their representatives, as last resort,
what is law and what lawbreaking, which also Jefferson de-
nounced as undemocratic, and ot which the British Constitu-
tion, that we otherwise have tried so faithfully to copy, knows
nothing, will cease to " distinguish us among the peoples of
the earth. 1 '

We may be assured,

Third, that the whole tribe of lawyers will be abolished and with
them the whole warfare-theory and all its quibbles will be
swept away.

The New Order, with its practical economic organization of all
public affairs, will have no use whateverfor our •• Messrs. Eith-
erside." Abolish the warfare, and the profession of the law-
yer is next to useless.

Lawyers are now necessary evils— necessary on account of
our method of administering justice, just as the old Roman
lawyers were necessary, b3cause in R )me a suit was a religious


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Online LibraryLaurence GronlundThe coöperative commonwealth in its outlines. An exposition of modern socialism → online text (page 16 of 23)