Remarks at a Luncheon at Arkansas Consistory in Little Rock, Arkansas

Mr. Chairman, my hosts, and you, my fellow guests:

I want to say just one word suggested by the fact that Judge Rose was President of the American Bar Association and stands today as one of that group of eminent American citizens, eminent for their services to the whole country, whom we know as the leaders of the American bar. I want to speak as a layman again about certain ser vices that the learned profession of which Judge Rose is so eminent a member can render to an even greater degree than they now render to the American people. I know that there is a good deal of distrust, rightly, for the layman who speaks of law or of theology.

But I am going to say just a few words on a matter that concerns good citizenship, in which the layman has a right to expect leadership both from lawyer and from theologian. Very naturally in any profession there come to be men who treat the profession as an end instead of as a means. I am not speaking from the standpoint of the individual; but from the standpoint of the Nation, of the State. Just as in Christianity we have a right to say, by their fruits shall ye know them—just as we have a right to judge the man of religious profession by the output that comes as a result of that profession—so we have a right to expect from the great profession of the law, from that which is perhaps the leading among the liberal lay professions, we have a right to expect a peculiar quantity and quality of the service to the public.

There are certain abuses in connection with our whole system of law today which the laymen cannot remedy, but which I earnestly hope that the men of the law will themselves remedy. Now here I have got to speak merely to my fellow laymen and shall have to invite correction. I am speaking before Gamaliel and shall expect correction from Gamaliel if I go wrong.

But our law comes down from the time when the state, the government, was all powerful as compared to the individual; when the government acted as a plaintiff and it was necessary that every possible safe guard should be thrown around the defendant, that he should be given every chance, and the fear of injustice was a synonym for fear of injustice to the private citizen against whom the state proceeded.

It came from a time, if my memory of history is right, when about five per cent (I am speaking now of the common law) of any given number of children born in England were punished by hanging—when people were hung for the most trivial offenses and when all the machinery of the law was in the hands of the government and directed against the individual; so that the one thing that had to be done was to protect the individual.

Circumstances in the past three or four centuries have wholly changed, but the pressure of the law has not changed nearly as rapidly. At present there is not the slightest question as to the individual's rights being preserved. They are amply guarded. Of course, there is the possibility of error in every human affair; but speaking generally, the man accused of criminal wrong, especially the man accused of criminal wrong against the public, has every possible chance secured him; but the public has not got every chance in regard to it.

No greater service is being rendered the American public today than by those members of the leading profession whose good fortune it has been to stand forth as prominently identified with the prosecution of crimes against the State. When I say crimes against the State I not only refer to crimes like those of bribery and corruption committed by any public official; but I mean such a crime as murder or any similar hideous misdeed, where the offense is not merely against the individual, but against the entire community. It is right to remember the interests of the individual; but it is right also to remember the interests of that great mass of individuals embodied in the public, in the government.

It is unfortunate that we have permitted practices that were necessary three hundred years ago for the protection of innocent people to be elaborated, to be perverted, so that they become a means for allowing criminals to escape the punishment of their criminality. We urgently need in this country methods for expediting punishment, methods for doing away with delay, methods which will secure to the public an even chance with the criminal—I do not ask any more. If we can get an average of just fifty per cent of the criminals, we will be pretty nearly all right, and we will give the public an even chance with the criminal whose offense is against the public.

At present the right of appeal is in certain cases so abused as to make it a matter of the utmost difficulty ultimately to punish a man sufficiently rich or sufficiently influential to command really good legal talent. Now I am speaking of what I know, for I am speaking with very keenly in my mind experiences during the past three years in trying to get at certain public offenders who have been indicted, and some of whom it has been almost impossible to get into the jurisdiction of the courts in Washington in order to try them. There are others whose cases are still on appeal.

I feel that the man who offends against the State occupies a position rather worse than that of any other criminal, from the very fact that he is the man who attacks everybody instead of just one person; so that it is not the special business of any one to get at him. In consequence, if he can keep the forces of justice at bay long enough; if he can secure one or two mistrials, gradually the popular interest evaporates and the criminal gets off.

Now, as the judge has so well said, the minute that a man becomes President he ceases being the President of a party and is the President of every man, woman and child within the confines of the nation. But I permit myself one particular bit of personal discrimination. I am just a trifle more intent on punishing the Republican offender than the Democrat, because he is my own scoundrel. I feel a certain sense of peculiar responsibility for him, and I am going to unload that responsibility if I can. Of course, as we all know, offenses must come, but I have endeavored to carry out the Scriptural injunction and to make it a matter of woe unto him by whom they come.

I am happy to say that we have a reasonable proportion of the offenders in question with stripes on; about up to the 50 per cent aver age that I would like, and I want to go a little further than we have yet gone.

Then, too, if the law is reasonably speedy and reasonably sure it takes away one great excuse for lawlessness. If some horrible crime is committed and the people feel that under the best circumstances there will be an indefinite delay even when the time for administering it comes, then a premium is put upon that kind of law breaking which more than any other is a menace to the law.

We ought to stand against all forms of putting that premium on; the long delays of justice, the abuses of the pardoning power; the sluggish ness with which either court or attorney moves; all of those things count in bringing about the condition of affairs against which all of us must protest.

Now, a layman can do but little more than to give utterance to the feeling that so many laymen have. I earnestly hope that the bench and the bar of the United States will in all proper ways seek to see to it that the loose customs—for some of these things of which I complain are merely customs and not laws—inherited from the past when conditions were totally different, shall not be perverted so as to harm the whole public by giving the criminal an advantage to which he is not entitled, and that some substantial improvement shall be made in the direction of securing greater expedition and greater certainty in the administration of justice, especially in the administration of criminal justice.