PHILIPPINE

LAW
JOURNAL
luRCH. t939
' .. lrll.
PAGE
The Triumvirate of Ibe taw.-Bv Paul V. MoNuff, U. S.
H'/I. ..... iui_ to tie PlUjppi... . .......... .
Nptes .ad Comment. ............................. 488
Recent ~ ~ t I O .. ....... .... . ....... .. .......... . 100
L
.... ;"ff. .......,.IAO ~ ..... i ....... N.IID ..,. -- , .
_
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P HILIPPINE 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 evidenced by the number of law
teachers who are dC\'oting themselves exclusively to their call-
ing. This change WllS and advantageous. 1t was
necessary because the bus}' lawyer had no time for students and
the teacher, if he per fOl"med his duty, had no time for diellts.
It was advantageous in that: it developed the science of teaching
Inw and pointed tht" wa\' towar'd a systematic, scholarly under-
standing of the law.
BLlt the evolut ion of law as a distinct vocati on
does not mean that the teacher is divorced from the benc-h und

bar. Practically all law teachers have practiced law and many
of them have held judicial position:;, . By enteri ng academic cir-
cies-whieh, though povCI-ty stricken, are not as cloi stered as
you might had chcsen a different function in the
solution of the same pI'oblems t hey faced as practitioners. They
l'lbol" in the same vineya l-d. They are still members of the
public pr ofess ion c.f the law and share its responsibilities.
I t is for this rcm'on that. I have chosen to reter to the prac-
titioner. 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. Pompey, Julius Caes-a!'
and Crassus, but. 1 was unable to find a gl'oup in the legal pro-
fession to fit the r ole of Crassus, whose place in the First Trium-
virate was secured by hi s gr eat wealth. It is my purpose to em-
Address by Hi s ExceUenl"V Pllul V. i'til"Nutt , United States High Com-
miHioner to the Philippine Islunds, at the formal banquet g iven in his
hono,' by the Philippine Bar Assoeiation. Philippil'e Chapter of tile Amer-
ican Ear ASSOl"iat iOIl and the Lawyers Ll!ague of the Philippines. March
16. 1939.
'74 PHILIPPI NE LAW JOURN.4.L
phas ize the fact that t he legal t ri umvirate, a coalition of three in
authority, is charged with the most important responsibility in
puliti call y organizeu socieLY, which is the effici ent administra.
tion of just ice. T hr- sllccessful discharge of lhis j' esponsibilirv
involves ,",nei demal1 cis the highest degr ee of cooperatio';; and
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 \er se \vhieh illU!:.tl'ates
the tradition,
"' S:lnetus lyo enH Hrito
Advocatu" !-led non JRtro
Res mir.lndo poplI\ r/'
'vhieh 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:ent story goe>:. who,
0 11 petition by t he 1ll\vyers. was permitted y the Pope to choose
Lhe patron sai nt of the lawyers. The choice W/.l S to be
ill this fashion. Ivo was to be blindfolded and turn-ed loo>'e in
t he Lateran to fe,!1 the statues of the .:;aints. He \Va" to em-
ur3ce one stniute, the sai nt who"e ;;tatue was thus selec,ed
11":1$ to be patron of the lawyel 's, Tvo wandered about,
lawyer-li l,e, feeling c.f nt:'iou3 ,;tatues, IIntil he came to the OliC
of Michael o\cl' coming Satan, Then, as folte ba\e
it, he threw his ann;; about the st.Ht ue of Satan, who, accordi ng
t o the eiergy, lllll;:; becam:=:! our patron saint.
This t r aditiollal attitude t1..'ltes back to the twelfth century
<lh-:pute between lHw and theulog.v. disputes which have arisen
from ti me to time mal j ust latei v have signs of re-
\ The clergy di d not relish the thought of handing O\'er
p!'actice of the lnw ami the places of authority to non_clerirdi
J.a\\'yers and, in j erdous l",,- ge, pOUled upon the heads
of (lllJ' unfol-tullute 10 the evident joy of la credulo
lls
poplllace,
The same flal'E:d up at t he time of the Re.form9.-
[ion, when Cat holic and Protestant joined hand,.;,
s peaking, against t he legal prtJiession. 'fhi s opposition was car-
r ied to the lIew continent by the PUJ'itan fOl efathers and t he
clelgy ,'eigned s upreme ill Colonial Amel'ic'l.
T HE T HJUMVI RATE OF LAW 475
!\rembers of tnf' legai profession !:ta\'e enjoyed over [I cen-
tury and a half of !E:ader.:;hip, m.lrked "by many outstanding ac-
complishments, 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 cont r oversies 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 r om 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-
The doctOl', t.he engineer, the scientist and t he joul'llalist
:;tri \'c for a place in the :,,;u n natur ally enough, do not hes-
ilate 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
medical (leve\l::jJed powerful and c'ompl'ehensive 01' -
F:lnizations, reorganized, and fixed the standal'ds of med-
ical edl1C",tion ann a(.rnis:-<ion to pl'actice, and :,;pollSOl'er! and se-
cured adequate SllPPOI't fol' extensive research, All this was
(lOne in ihe of public heal th, T he mortality tables re-
flect 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 pngineel' the scientist poi'nt to remal' lwble :.lccom-
pli::h ments elul'ing the pl'f'sent generation as a basis for their
('!.'tim": , The joul'ndi<;t feels himself to be the voice of the public
:llld the domin;1nt figure in <I cemocracy, Occasionally he
has so far !t:< t o il1\,>tde the legal field by what has been
('ailed "Tl'l;)l by Ncwsp!ll)cr" anc't by repe..''lted attaC'ks on the
legal profession fOl' ti.lleged f:li!u l'es ill the administration of jus_
tice,
The hy other pl'ofe,,"sio]l;';, the repetitions of the
and arrows rf la}' tradition and other manifestat ions of
j'H'ofessiona! jealous ly art;! not matteI' s of grave concern sa long
as the practice of t he 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-
PHILIPPINE LAW JOURNAL
pktting public ser vice, and differentiated from ordinary business
vucation by its subordill!'1tion of peclluial"y returns to effficienL
sen' ice." The eml:. hasis is on Fo]' the lawyer' this
means ser vice in the proper adminl!;t ration of justice. Com.
par ed with other lH"ofessions the lawyer's position in the com.
plex suciety of today is secure becau;;e of the inexor able 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 the of the legal pro
fession comes fl'om a Fnmkenstein of our 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
cure all ills of the body politic, He has been taught by t he dema
by the editor. and by the school teacher that hi s will, if,
as and when hy the legislature, is law. (It is law,
when and a:') interpreted by the cuurts in the light of reason anil
juristic science.) His 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 Bar Association, ''In
America, where the stability of courts and of all departments of
gover nmen t r ests upon the approval of the people, it is pe
culiarly essential tl101t the "yslem of establishing and dispensing
justice be developed to a point of efficiency and so main-
tained that the public shnJl have absolute confidence in the in-
tegrity and impar! i01lity of its administrat ion. 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 car eful 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 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
: il W using t hat term in the !;ense of just ice or the legal order.
, d"
He loves it. It is his life. But 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 t han
the content oC legal rules anci principles. He )'espects the Con-
;:,titution when it pr oves to be the guarantee of life. liberty, and
property. and whell it adually promotes the general welfar e.
He knows what a mlln like Henry Broughham means \ .... hen
he uses these words in the HOllse of Commons: " It was t he
boast of Augustus tha::' hp. found Rome of brick and left it of
marble. How much nobler will be t he 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 t wo-edged sword of craft and oppression, left it the staff
of honesty and the shield of innocence !" Th'lt speech, delivered
ill 1828 r esulted in the appointment of the Royal Commission,
whose reports br ought about the Common Law Procedure Acts
and t he Judicature Ads. Both of these ncts impr oved t he func-
t ioning of law.
The ordinary man looks to the legal pr ofession 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 com-
mon sense and ti1110::r with thp. machinelY.
I was for cibly r eminded 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 boards and commissions. Then the
tirade begall. I hary i he temeri ty to suggest that the most of
these boards 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!' paslOing from the to
bounls and commissions; second. that this i:.: :.\
by threat against legal authority: third. that the legal lH'o-
fes:;ioll mll:'lt fOI-mliln.te in legal principles the results of admin-
i;;tr ative experience in O"der to prevent Ollr govcrllm"2llt from
becomi:lg a 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 or ganizati on and <ldminiRtl'ation with a view to adapting
t hem to the changing need:,! I)f society.
478 pHILlPPI }J E LAW JOURNAL
We hear much compkl. int 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 farm and labor or-
ganization and every ol' pnizatiol1 \rhich has no business ha!'
:.:ome legislative pi'oject and 01' later obtains ils adoption.
The suggestiono;; of 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, his ertk]' on "Law and Law En-
forcement," 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 author-
ity rather than on public senl imen: [01' ,"curing their ends. He
as\:;:d thi s qi1estioll, UWhat CUll we do to protect ourse\rEs against
thi s 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 My saying that ''If any considerable nllmber
of citizens, who are habitually law abiding, think that some
E_ntute is bad in or dangel'ous enough in its in-
di rect efforts to make it worth while to block ito enforcement,
thy can do so." He said that "this process of blot'l\ing law
by disobedience is known as 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 President 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 danger 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
would feel that he belonged to the group of "best minds" and that
he was performing a pubiic service.
Legislation is and becomes more important as
our social and business life becOmt3 more complex. It is es-
sential 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 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 legis-
lation 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, min-
isters and thl't! out of fire of the individuals on the
street seem to regard t.he securing of more effieient justice as
the most importan! public question. The committee of the
American Bar Ass{'tciatioll , to investigate and report
as to fOnditioll S affecting law enforcement, considered the data
collected and made the brutaily frank statement that we are the
mos t. 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. the activities of
the American Bar Associaticll, of various state and local bar
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? Hon-
orable Herbert S. H3d!ey, chairman of the special committee of
the Americ"" Law Insti!}lte, told me ,i ust before he died that
his in\"estig.:ltion h<ld 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
490
PHILIPPINE LAW JOUR NAL
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 ...
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 magi stnltes. fault;; of poliC'e and court offici.:lls, un-
ethical practices of lawyers, inadequate number and in-
lfticient organiZ<ltiull of CllUl'ts, inability to 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
wel'e the principal efluges of the defective administration of jus.
Lice,
The work of the legal profession in r eforming criminal ju",.
Uce is hampered by the failure to gi\'c criminal Jaw and proce,
aUl'e the Nlreful and treatment accorded different
of the civil law nnri by the refusal of an incrensitlg numuer of
practitioners to accept criminal practice,
'fhe leg:1l professivn mllr-! not and cannot avoid it:'i respon-
5>i bility 1'01' criminal just.ice, We have 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
One other complaint the ul'(iimlrr man makes of the admin-
of just ice ii" by this embarrassing question:
Why must h{:! 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 something :1oout the poss ibility Of3 declam-
tory judgment. Some d:/y he may find that civil law jurisdiC-
tion" haye n :;y!';tem of \ll'evcr.tive jl;stice, It would Oe wis!' l(J
his crying need in thi!> regard before he the
(juest 0 1' devices a !>ystem for him!'zlf. Furt.hermore, an intelll-
effort to obtain 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 admi n-
istrati 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
T HE TRI Ur.t VIRA'I'E OF LA W
tiun depends public .::afety, Upon their s:'ltisf adory solution by
the legal p!'ofession depends the conCnuancc of the leg:11 trium-
virate in office allli authority, the legal triumvirat is
able to satisfy the ol'dinar y man's demand for effic'ient, li ving
justice it wili be swept fr om power as were the t r iumvi r ates of
Rome, as wer e our brethren in other d:'tys, Over a century and
Il ' half of leadership is no guarantee of perpetual author ity, A
lellder ship which does not justi fy 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' O-
fegsioll ns long a:; it deserve:> that classification,
It would be well for lI g to cast a:;ide pr ofessional jealousy
a nd follow the example of the medical pr ofession in cer tain acti-
vities which ha ve o!'ought it strength, One is the development
of' power ful and comprehensive organizations, The average Bar
:\ssociation includes less th:l.n fifty pel' cent of the lawyers in
the state, Ther e is st reYJ.gth in numuer s, but there is greHtel'
strength in a public manifestat ion of unity of pur pose,
Another neceSl'Rry activity is to support and to develop Jaw
schools of high grade, Conditions h<l.ve forced t he shi ft from
the apPl' entke type of leg"ll educat ion to the law Rchool type,
'I' he t r ansition is complete. The practitioner was
entirely r espollRibJc for the first type and during the period of
change retained cor;t l'ol of JgaJ educati on. When the law school
type of legal educati"ll became firmly estHblished, the law tcucher
assumed control and the practitioner began to lose interest be-
calise he no longer fell the weight of responsibility, But
l'f::!sponsibilities of the profession as a whole remain, They are
joint r ather than scyeral. The Imv student of today is the law-
yer and judge of tcmor row. His trnining is of fundament al im-
jlorbmce, and thl'(l \l/1' h him all of us contribute to the str ength
of the pl'ofession,
The law school of today is flo mething more than a trade
t:chocl. Training competent lawyers is its pr iJl1..ary find most
impor t:wt task, but. it nlso pr ovide a place for producti ve
legal scholal'i:'hip and resea rch. Law is a sciell(;'e and, like any
other science, have who wor k in the Held of pure
science as well ,3 S those who wO!'k in the tield of applied
Pure science furni shes the matel'ials for applied scienc:e thus
mnkcs contr ibutions of tlJe greatest practical importance,
482 PH I Ll 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' intelesls. The bnckwriter is intent on quantity rather
than quality production. Most of the work in the pure science
of the law mU5t be done in the law schools, whel'c there is a
gual'antee of training ann. scientific atti t ude. But ill all these
matters, the participati on of' the members of the .active profes_
!:ion is necessa ry. Thein; is the impor tant. task of making pro-
uucti\'-e legal schoh\ri;hip po;,sible through adequate support and
of directing the wOl'k of research as weI! as making the pl'acti-
c,ll application of tile fll1dings. The most important deyelop-
ments ill modern medicine ~ r e the t'esu.lts of just sllch activities
en the part of h ~ memb"'l'_" of tha . pr'JfessioIl .
The third actiyity is to nLi::e and to fix the standards of ad-
mission 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!:tr ation of justice.
dation 011 which cidlized society rests.
is mOl'e impol'-
It is the foun-