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PHILIPPINE

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LAW JOURNAL luRCH. t939

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The Triumvirate of Ibe taw.-Bv Paul V. MoNuff, U. S. H'/I. « ..... iui_ to tie PlUjppi... . .......... .

Nptes .ad Comment. ...........•...••............... 488

Recent ~~tIOD .. ....... .... . ....... .. .......... . 100

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.... ;"ff. .......,.IAO ~ ..... i ....... N.IID ..,. -­, . _ .......... ....-

P HIL IP PINE LAW JOURNAL "01. XVIII i\I ,\ RCH, 1939 No.9

THE TRI UMVIRATE 01-" LAW >l'

By PAUL V. I\l cNUT'r

, Several year s. ago I heard Judg€: Learned Hand say that

"the teaching of lawyers is indeed a,,; di st inct a vocation from the practice of law :IS law is from engineering or science." The acceptance of t his as a fact is ev idenced by the number of law teachers who are dC\'oting themselves exclusively to their call­ing. This change WllS ll~ce:;sarr and advantageous. 1t was necessa ry because the bus}' lawyer had no time for students and the teacher, if he per fOl"med his duty, had no time for diellts. I t was advantageous in that: it developed the science of teaching Inw and pointed tht" wa\' towar'd a systematic, scholarly under­standing of the law.

BLlt the evolut ion of law t~'lching as a distinct vocation does not mean that the teacher is divorced from the ben c-h und • bar. Practically all law teachers have practiced law and many of them have held judicial position :;,. By enteri ng academic cir­cies-whieh, though povCI-ty stricken, are not as cloi stered as you might think~~hey had chcsen a different function in the solution of the same pI'oblems they faced as practitioners. They l'lbol" in the same vineya l-d. They are still members of the public profess ion c.f the law and share its responsibilities.

I t is for this rcm'on that. I have chosen to reter to the prac­titioner. judge and law teacher as the. triumYirate, us ing that term in the senSe of a coalition or associut ion of th ree in office 01' authority. J might have used the term as meaning the modern count<:!rpal't of the First ' rriumvi l-ate. P ompey, Julius Caes-a!' and Crassus, but. 1 was unable to find a gl'oup in the legal pro­fession to fit the role of Crassus, whose place in the First Trium­virate was secured by hi s g reat wealth. It is my purpose to em-

• Address by His ExceUenl"V P llul V. i'til"Nutt , United States High Com­miHioner to the Philippine Islunds, at the formal banquet g iven in his hono,' by the Philippine Bar Assoeiation. Philippil'e Chapter of tile Amer­ican Ear ASSOl"iat iOIl and the Lawyers Ll!ague of the Philippines. March 16. 1939.

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phas ize the fact that the lega l t ri umvirate, a coalition of three in authority , is charged with the most important responsibility in puliti ca lly organizeu socieLY, which is the efficient administra. tion of just ice . T hr- sllccessfu l discharge of lhis j'esponsibilirv involves ,",nei dema l1 cis the highest degree of cooperatio';; and i~­tell igent effort.

The aut.hority of this group is challenged by certain by agencies. On t he face of t he matter -" lIch a situation is neither tlllUSllai nor alal'ming. The lay attitude to\\'anls the lawyer is t r aditiol1 .. 1!. There is a bi !; (If med~ae\'al \er se \vhieh illU!:.tl'ates the tradition,

"'S:lnetus lyo enH Hrito Advocatu" !-led non JRtro Res mir.lndo poplI\r/'

'vhieh i~ tram;iatc'i thus : Saint Ivo \Vao; a Bri ttany lawyer but not a roober, a wOllder to the peopie!

It W1S this same. Saint 1\·0, so the anc:en t story goe>:. who, 0 11 petition by the 1ll\vyers . was permitted y the Pope to choose Lhe patron saint of the lawyers. The choice W/.lS to be cxel'ci~ed ill this fashion. Ivo was to be blindfolded and turn-ed loo>'e in the Lateran to fe,!1 the statues of the .:;aints. He \Va" to em­ur3 ce one stniute, :'~Ild the saint who"e ;;tatue was thus selec,ed 11":1$ to be patron ~a in t of the lawyel 's, Tvo wandered about, lawyer-li l,e, feeling c.f nt:'iou3 ,;tatues, IIntil he came to the OliC

of S~tint Michael o\cl'coming Satan, Then, as folte wo~ld ba\e it, he thre w his ann;; about the st.Ht ue of Satan, who, accordi ng to the eie rgy, lllll;:; becam:=:! our patron saint.

This t r aditiollal a ttitude t1..'ltes back to the twelfth centu ry <lh-:pute between lHw and theulog.v. disputes which have arisen from ti me to time ~i nce mal j ust la tei v have ~hown signs of re­\ i V~11. The clergy did not relish the thought of handing O\'e r ~he p!'actice of the lnw ami the places of authority to non_clerirdi J.a\\'yers and, in jerdous l",,-ge, pOUl·ed m~'.lcdictions upo n the heads of (lllJ' unfol-tullute b rethl\~n 10 the ev ident joy of la credulolls

poplllac·e, T he same oppv~ition flal'E:d up a t t he time of the Re.form9.­

[ion, when Catholic and Protestant joined hand,.;, figllrativel~' s peaking, against the legal prtJiession. 'fhis opposition was ca r­r ied to the lIew continent by the P UJ'itan fO l·efathers and t he clel·gy ,'eigned s upreme ill Colonia l Amel'ic'l.

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!\rembers of tnf' legai profession !:ta\'e enjoyed over [I cen­tury and a half of !E:ader.:;hip, m.lrked "by many outstanding ac­complishments, I .. t.his position of le,adership secm'e, or is it t{l be ,matched hom 11S by the members of other professions who would s it ill high place;; ~

The extreme h'lstility of the clergy did not disappear until it gave w3y to the presSlIre of economic conditions, Many of the <lge-o~d cont roversies oyer law and morals ha\'e awakened des ires .fur temporal leadcl'<;hip in some members of the clergy, Even no\\' we may expect sr.lme j'cV<lrnpcd diatribes of Luther f rom various pulpits, fI'I3y we have the grace t o accept them ill a spirit of Chl'i:::tinll charity and to go about our business uO!'uffled and umiisturbed, ever I'emembering that it is possible to be (as h'o wai l both ;';;lint and lawyer !

Other learned !l l'ofessions are making demands for leader­~hip, The doctOl', t.he engineer, the scientist and the joul'llalist :;tri \'c fo r a place in the :,,;u n ,~ll(I, natu r ally enough, do not hes­ilate to Jc\'i\'c lay l ·:adition in ord-el' to J'cmove the lawyer from his place of uuthori!y, Within a compal'ath',ely short time the medica l pl'cfeJ.;~ion (leve\l::jJed powerfu l and c'omp l'ehensive 01'­F:lnizations, reorganized, l'a; ~ecl and fixed the standal'ds of med­ical edl1C",tion ann a(.rnis:-<ion to pl'actice, and :,;pollSOl'er! and se­cu red adequate SllPPOI't fol' extensive resea rch, All this was (lOne in ihe illtel'e~t of public health , T he mortality tables re­flect amazingly benelicial l'c>< ul t::: , If the leg,'.'!.l profession is to maintain <lnd justify its plaCe of leadership it must do the same thing for public se('nrity,

The png inee l' aJ~d the scientist poi'nt to remal' lwble :.lccom­pli::h ments elul'ing the pl'f'sent gene ration as a basis for their ('!.'tim ": , The joul'ndi<;t feels himself to be the voice of the public :llld t!ll1~ the domin;1 nt figure in <I cemocracy, Occasionally he

has gC llf~ so far !t:< to il1\,>tde the legal field by what has been ('a iled "Tl'l;)l by Ncwsp!ll)cr" anc't by repe..''lted a tta C'ks on the legal profession fOl' ti.lleged f:li!u l'es ill the administration of jus_ tice,

The challeng~ hy other pl'ofe,,"sio]l;';, the repetitions of the ~ lings and a rrows rf la}' tradition and other manifestat io ns of j'H'ofessiona! jealous ly art;! not matteI's of grave concern sa long as the practice of the law remains a pmfession as distinguished from a trade 01' bl! sEness , Jessup defines a pl'ofession as being "a call ill g in life based on special t l't\illing and ability contem-

PHILIP PINE LAW JOURNAL

pktting public se r vice, and differentiated from ordinary business vucation by its subordill!'1tion of peclluial"y returns to effficienL sen' ice." The eml:. hasis is on s~ rvice. Fo]' the lawyer' this means ser vice in the proper adminl!;tration of justice. Com. pa red with othe r lH"ofessions the lawyer's position in the com. plex suciety of today is secure becau;;e of the inexorable working of certain social and econ0mic forces. whit'h requires the opera. tion of legal scientc ill the interes t of public security.

The serious thl't!at ~,ga i llst the ~.uthority of the legal pro· fession comes fl'om a F nmkenstein of ou r own creating, the vrdinary J'easonab!e man, who now appears in the guise of the ordinary bu;:;iness man or worker. He is hailed as the great apostle of common l;ense, the application of \vhich is supposed to cu re all ills of the body politic, He has been taught by t he dema· ~ogue, by the editor. and by the school teacher that hi s will, if, as and when expre~sed hy the legislature, is law. (It is law, when and a:') interp reted by the cuurts in the light of reason anil juristic sc ience.) H is opmion is public opinion. He is the pub. lie and it is for him that we have administration of justiee. After all , he is the judge of its efficiency because he accepts the remedy or the penalty anti pays the bill .

I n this connection, I invite yOllr attention to the preamble of lhe Canons of Ethics of the Am~l'icall Bar Association, ''In America, where the stability of courts and of all departments of gover nmen t rests upon the approval of the people, it is pe· culiarly esse ntial tl101t the "yslem of establishing and dispensing justice be developed to a hig~: point of efficiency and so main­tained that the public shnJl have absolute confidence in the in­tegrity and impar! i01lity of its administration. The futu re of the republic, to a great. extent, depends upon our maintenance , of justice, pu re ami unsullied. It cannot be so maintained UIl­

less the t'Onduct and the mot h'es of the members of our profes· sian are such as to merit t he approval of all just men."

I speak with careful sinced ly when I say that the legal pl'ofession does not receive the appro\'al of the 6rdinary man. He is not satisfied with present day udminist ration of justice nnd does not hesitate to ~ay so. Many of our profession have received hi s mlltterings in compfacent .silence or have lectured him on "respect for law" 01' on "the Constitution".

The ordinary man, who is not a criminal, has respect for : ilW using that term in the !;ense of just ice or the legal order.

, d" He loves it. It is his life. Bu t he is disgusted with "sacre •

THE TRru MVIRATE OF I..A'W

rules and principles whien are antiquated and do not secure the justice which he desires. He respects the working rather than the content oC legal rules anci principles. He )'espects the Con­;:,titution when it proves to be the guarantee of life. liberty, and property. and whell it adually promotes the genera l welfare.

He knows what a mlln like Hen ry Broughham means \ .... hen he uses these words in the HOllse of Commons: " It was the boast of Augustus tha::' hp. found Rome of brick and left it of marble. How much nobler will be the sovereign's boast when he shall ha\'e to say that he fOllnd law dear and left it cheap; found it a sealed h .... ok and left it a living letter; found it the l1Utrimony of the rich, left it the inher itance of t he poor; found it a two-edged sword of craft and oppression, left it the staff of honesty and the shield of innocence !" Th'lt speech, delivered ill 1828 resulted in the appointment of the Royal Commission, whose reports brought about the Common Law Procedure Acts and t he Judicature Ads. Bo th of these ncts improved t he func­t ioning of law.

The ordinary man looks to the legal profession to secure H workable system of jusiicp. f or him. Whell the p"ofession fails to do this, he ,'ises hl hi s might to apply his so-called com­mon sense and ti1110::r with thp. machine l·Y.

I was fo rcibly reminded of this 11 few days ago when the convcrs<ltion turned to a discu:.:sion of administrath'e boards and commissions. One of the lawyers pre:ient remarked that. he had <lbout given up th€ practice of the law and was sp-ending his lime making the rmmds of boa rds and c·ommissions. Then the tirade begall. I hary i he temeri ty to suggest that the most of these boa rds and cu:nmis3.ions. were the result of lay efforts to meet need" unsat islied by our .adminishation of justice.

Four points seem pPl'fectly obvious : First, that the ac :ual <l.dministratioll of jllstice hu !' bee!~ paslOing from the court~ to f1.dmini"tratin~ bounls and commissions; second. that this i:.: :.\ by threat against legal authority: third. that the legal lH'o­fes:;ioll mll:'lt fOI-mliln.te in legal principles the results of admin­i;;tr ative expe rience in O"der to prevent Ollr govcrllm"2llt from becomi:lg a ~o\'e l'!l ment of men and not of laws; and fOllrth , that the legal pl'ufo:'!1:!sion mll!'t" make a C'ritical eX3_mination of judicial orga nization and <ldminiRtl'ation with a view to adapting t hem to the changing need:,! I)f society.

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We hear much compkl.in t of the number of laws on the statute bool';sr of what 30mE' have facetiollsly called the ul'ain" of law. The ordinary man bhlmes the legal profession fol' this mass of statute law on the theory th,.t oLlr legisl .• live bodie' are and have been filled ",ilh lawyers. The fact is that th. l'E'lative number of lawyers in legislative bodies is becoming smaller. Thi!:i is aGothel' iay gesture 19ainst the authority of lawyers. Furthermore, laymen are the ones who are loading the statute books. Every t~'adeJ bllsine~s. farm and labor or­ganization and every ol'pnizatiol1 \rhich has no business ha!' :.:ome legislative pi'oject and ~oonel' 01' later obtains ils adoption.

The suggestiono;; of i.~ymen for gett ing rid of unfortunate legisl::! tion of lay origin would b(> nml1sing if they were not fraught with tJ'agie ComWQlIellces. For example. a distinguished layman, lhe late Al'thur Twining Hadley. former President of Yale University, j:~ his ertk]€' on "Law ~raldng and Law En­forcement," pointe1 out the great d"ngel':-i which now confront us in the increasing demand for ill consiliercd legiskl.tion and the increasing readiness of would-1M:! reformers to rely on author­ity rather than on public senl imen: [01' ,"curing their ends. He as\:;:€d this qi1estioll, UWhat CUll we do to protect ourse\rEs against this spirit of orerreguiation whkh seeks to place under official tontJ'olnol only the crganizatioll of industry and commerce, but the conduct and even thE thought of the people themseiYes'" He answered th i~ My saying that ''If any considerable nllmber of citizens, who are habitually law abiding, think that some E_ntute is bad enul!~h in it~elf or dangel'ous enough in its in­di rect efforts to make it worth while to block ito enforcement, th£y can do so." He said that "this process of blot'l\ing law by disobedience is known as l~ullificatioll" and he ga\'e as illug· trations the null ification of lhe Fugitive Slave Law by the people of the North, the nullification of the Reconstruction Acts by the pEople of the South, and the nullification of a large number of laws for lhe taxaticn of personal property by the people of 10-day. (I suppose Pres ident Hadley knew that the actors in bis last example are also gu:lty of perjury). He wenl on to say that "the people must chl-ose betweer. the danger cf lawies3ueRs which results from ignorillg a s.tatute and the dang·er of tyranny which is involved in pa:.:siv€' obedience." Perhaps PreSident Hadley felt that we should hf'.ve a government of "best minds"

THE TRIUMVIRATE OF LAW 479

instead of a government of laws. In practice e\'el'y lawbl'e,~l\e l'

would feel that he belonged to the group of "best minds" and that he was performing a pubiic service.

Legislation is neces~a l'y and becomes more important as our soc ial and business life becOmt3 more complex. It is es­sential that the law keep pace wi th ,ne demands of present day civilization. The shift from rural to urban lite, the automobile, the radio, the aeroplane and mociern busine~s present problems which cannot wait upon the necessarily slow oe\'eiopment of the common law for solution. The sitClation caIb for the best the legal profession h" (0 offer. It calls for united efforI in choI,­ing off useless, befogging Iegishtion. It calls for carefn! study and preparation for law making. It calls for a close inspection of the economic, political and legal aspects of Iegisiation, in the light of (he experie,ce of the pasl and of the results desired.

It is equai!y importo,:!.!lt that we give due regard to the en· iorcement of a particular Rt2.tute. Executi\"e etficiency, custom or intrinsic worth may not be enough. It may be necessary to devise new method.) and means of enforcement. The best legis­lation is worse than useful if it cannot be enforced.

The most vigorous C:'hallenge of present day administration tl f justice hHS to do with criminal law and procedure. Civic :lnd professional Gl"ga nizmjon, newspapers and magazines, min­isters and lectl1l"er~ , thl'€t! out of fire of the individuals on the street seem to regard t.he secu ring of more effieient justice as the most importan! public question. The committee of the American Bar Ass{'tciatioll , appoin~ed to investigate and report as to fOnditiollS affecting law enforcement, considered the data collected and made the brutaily frank statement that we are the mos t. l3\vlf':~s c\\'ihzed people in the world.

There is no need to cnil upon the legal profession to bCHtir itself ill response. 1 t is doing that. Witne~s the activities of the American Bar Associaticll, of various state and local bar associations ~ of the Association of AIT,erican Law Schook, of the Institute of Criminal Law and Criminology and of the American Law InstitLlte. What has come of th;s feveri sh activity? Hon­orable Herbert S. H3d!ey, chairman of the special committee of the Americ"" Law Insti!}lte, told me ,i ust before he died tha t his in\"estig.:ltion h<ld di~closed three facts : First, that the pro· fessio!! generaily is uninformed on matters relating to cl'iminaC Jaw; second, that among those who were informed there was no agreement as to the defects 111 the system; and third, that there

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was a lack of consensus of opinion as to the necessary work of l'efol'm. Some of the defects listedwer-e .3buse of the pardon~ ... iug pUWCI' and parole system, archaic and uncertain provi sions. of our criminal procedure, uncertainty and indefiniteness of our 8ubstantive criminal bws, deficiencies in proc-eeding before examining magistnltes. fault;; of poliC'e and court offici.:lls, un­ethical practices of clefen~e lawyers, inadequate number and in­lfticient organiZ<ltiull of CllUl'ts, inability to ~eclll'e the pl'€sence of witnesses, the law's delay. Some of our brethern turner) on t he laymen, So.."Iying that public indifference to the enforcement ()( the law and flabby publ ic opinion which tolerates lawlessness we l'e the principal efluges of the defective administration of jus. Lice,

The work of the legal professio n in r eform ing criminal ju",. Uce is hampered by the failure to gi\'c crim inal Jaw and proce, aU l'e the Nlreful ~tLl dy and treatment accorded different part~ of the civil law nnri by the refusal of an incrensitlg numuer of practitioners to accept crimina l practice,

'fhe leg:1l professivn mllr-! not and cannot avoid it:'i respon-5>i bility 1'01' criminal just.ice, We ha ve had enough lay tinker ing with crimin,d llroc-:!dllre to <!emon!'trate the layman 's inability to solve the problem, The Jlt'cblem can be solved and it is the lawyer':; busine.ss t(> soh'e it after he has assembled the materials th rough and painsb:king res~~trch ,

One other complaint the ul'(iimlrr man makes of the admin­istl~~tion of just ice ii" eX:H'es~wd by this embarrassing question: Why must h{:! bre~!( a cO!1tract to find out what it means, and why must he violate a stHt utc to test its validity? It i1; no an­:;wel' to whi!'iper so mething :1oout the poss ibility Of3 declam­tory judgment. Some d:/y he may find that civil law jurisdiC­tion" haye n :;y!';tem of \ll'evcr.tive jl;stice, It would Oe wis!' l(J

"atisf~' h is crying need in thi!> regard before he mak-e~ the r~­(juest 0 1' devices a !>ystem fo r him!'zlf. Furt.hermore, an intelll­~:ent effo rt to obtain rea~nnah!e and just solutions of individual c.ni:ies will hum.nnilt.p. the f\ ri ministr.:ltion of justice and mak,e pos­:.> ible 11 more ped'ed achievement of the purposes of law,

Administrative t r ibU :lals, jl1dicial organization and admin­istrati on, legislation, enfor c'ement, criminal justice, pre\'entive juslice and the individualization of the application of jusUce aTe some of the pres,>ing problems of the legal triunn'irate, ' rhc)' arc more vital and far reaching ill importance than the probl('m!'l which faced the First Triumvirate of Rome , Upon their ~olu·

T HE TRI Ur.t VIRA'I'E OF LA W

tiun depends public .::afety, Upon their s:'ltisfadory solution by the legal p!'ofession depends the conCnuancc of the leg:11 trium­virate in office allli authority, Unles~ the legal triumvirat€ is able to sa tisfy the ol'dina ry man's demand for effic'ient, li ving justice it wili be swept from power as were the t r iu mvi rates of Rome, as were our brethren in other d:'tys, Over a century ·and Il ' half of leadership is no guarantee of perpetual author ity, A lelldership which does not justify itself cannot long endure, Client caretaking h; onl,v one phalle of a lawyer's duty. P uulic sel'vice of a high order is the distinguishing mark of the pl'O­fegsioll ns long a:; it deserve:> that classification,

It would be well for lIg to cast a:;ide professional jealousy a nd follow the example of the medical profession in cer tain acti­vities which ha ve o!'ought it strength, One is the development o f' power ful and comprehensive organizations, The average Bar :\ssociation includes less th:l.n fifty pel' cent of the lawyers in the state, There is st reYJ.gth in numuers, but there is greHtel' strength in a public manifestat ion of unity of pur pose,

Another neceSl'Rry activity is to support and to develo p Jaw schools of high grade, Conditions h<l.ve forced the shi ft from the apP l'entke type of leg"ll educat ion to the law Rchool type, 'I'he t ransition is "practic~lll.v complete. The practitioner was entirely respollRibJc for the first type and during the period of change retained cor;t l'ol of J€gaJ educa ti on . When the law school ty pe of legal educati"ll became firmly estHblished, the law tcucher assumed control and the practitioner began to lose interest be­calise he no longer fell the weight of responsibility, But t~e l'f::!sponsibilities of the profession as a whole remain, They are joint rather than scye ral. The Imv student of today is the law­yer and judge of tcmor row. His trnining is of fundamental im­jlorbmce, and thl'(l \l/1'h him all of us contribute to the strength of the pl'ofession,

The law sch ool of today is flo mething more than a trade t:chocl. Training competent lawyers is its p r iJl1..ary find most impor t:wt task, but. it mtl~t nlso provide a place fo r producti ve legal scholal'i:'hip and resea rch. Law is a sciell(;'e and, like any other scienc·e, mm~t have tho~"e who wor k in the Held of pure science as well ,3 S those who wO!'k in the tield of applied ~cience, Pure science furni shes the matel'ials for applied scienc:e ~I nd thus mnkcs contr ibutions of tlJe greatest practica l im portance,

482 PH ILl Pl-'fr.;E LAW JOURNA,",

We must look to the law school For creative worl. in legal Rchohll'f;hip. The courls, with over flowing calendars, h· e no time for wI'iting, The 9.ble pl'a(;titioner cannot lay aside his clients' intel·esls. The bnckwriter is intent on quantity rather than quality production. Most of the work in the pu re science of the law mU 5t be done in the law schools, whel'c there is a gual'antee of training ann. scientific atti tude. But ill all these matters, the partic ipation of' the members of the .active profes_ !:ion is necessa ry. Thein; is the impor tant. task of making pro­uucti\'-e legal schoh\ri;hip po;,sible through adequate support and of directing the wOl'k of research as weI! as making the pl'acti­c,ll application of tile fll1dings. The most important deyelop­ments ill modern medicine ~re the t'esu.lts of just sllch activities en the part of Ih~ memb"'l'_" of tha . pr'JfessioIl .

The third actiyity is to nLi::e and to fix the standards of ad­mission to practice. This is essential fOl' the protection of the veneral public in the urbun societ.y of today.

I am contirlm!t tlmt the legal trilm1\'irate is equal to the problems and tasks \\'hich confront it, Nothing tnnt than the efficiellt arlmini!:tration of justice. dation 011 which cidlized society rests.

is mOl'e impol'­It is the foun-