Prejudices, fourth series

1

Perhaps the chief victims of Prohibition in the Republic, in the long run, will turn out to be the Federal judges. I do not argue here, of course, that drinking bootleg liquors will kill them bodily; I merely suggest that enforcing the unjust and insane provisions of the Volstead Act will rob them of all their old dignity. A dozen years ago a Federal judge was perhaps the most dignified and respected official yet flourishing under our democracy. The plain people, many years before that, had lost all respect for lawmakers, whether Federal, State or municipal, and save for the President himself, they had very little respect left for the gentlemen of the executive arm, high or low. More, they had begun to view the judiciary of the States very biliously, and showed no sign of surprise when a member of it was taken in judicial adultery. But for the Federal judges they still continued to have a high veneration, and for plain reasons. Imprimis, the Federal judges sat for life, and thus did not have to climb down from their benches at intervals and clamor obscenely for votes. Secondly, the laws that they were told off to enforce, and especially the criminal laws, were few in number, simple in character, and thoroughly in accord with almost universal ideas of right and wrong. No citizen in his right mind had much sympathy for the felons who were shipped to Atlanta each morning by the marshals of the Federal courts—chiefly counterfeiters, fraudulent bankrupts, adulterators of food and drugs, get-rich-quick swindlers, thieving letter-carriers, crooked army officers, and so on. Public sentiment was almost unanimously behind the punishment of such rogues, and it rejoiced that that punishment was in the hands of men who carried on the business in an austere and elevated manner, without fear and without favor. It was, in those days, almost unheard of for a petit jury in a Federal court to acquit a prisoner whose guilt was plain; the percentage of convictions in some jurisdictions ran beyond ninety per cent. For guilt of the kind then dealt with by those courts met with the reprehension of practically all men not professional criminals themselves—and Federal juries, petit and grand, were picked with some care, as Federal judges themselves were picked.

I describe a Golden Age, now lamentably closed. The Uplift in its various lovely forms has completely changed the character of the work done by a Federal judge. Once the dispenser of varieties of law that only scoundrels questioned, he is now the harassed and ludicrous dispenser of varieties of law that only idiots approve. It was the Espionage Act, I suppose, that brought him to this new and dreadful office, but it is Prohibition—whether of wine-bibbing, of drug-taking, of interstate week-ending, or of what not—that has carried him beyond the bounds of what, to most normal men, is common decency. His typical job today, as a majority of the plain people see it, especially in the big cities, is simply to punish men who have refused or been unable to pay the bribes demanded by Prohibition enforcement officers. In other words, he is now chiefly apprehended by the public, not as a scourge of rascals, but as an agent of rascals and a scourge of peaceable men. He gets a great deal more publicity than he used to get in his palmy days, but it is publicity of a sort that rapidly undermines his dignity. Unfortunately for him, but perhaps very fortunately for what remains of civilized government among us, the plain people have never been able to grasp the difference between law and justice. To them the two things are one—or ought to be. So the fact that the judge is bound by law to enforce all the intolerable provisions of the Volstead Act, including even its implicit provision that men wearing its badges shall get a fair percentage upon every transaction in bootlegging—this fact does not relieve the judge himself of responsibility for the ensuing injustice. All that the vulgar observe is that justice has departed from his courtroom. Once the equal of an archbishop, he is now the equal of a police captain; once respected, he is now distrusted and disliked.

If this were all, of course, it might be possible to dismiss the whole matter on the ground that the public is an ass. That men of the highest worth are not always respected, even when they wear official robes, is a commonplace. But in the present case there is more to it than merely that. Not a few of the Federal judges have begun to show signs that the noisome work that has been forced upon them has begun to achieve its inevitable subjective effects; in other words, not a few begin to attack their sneaking sense of its lack of dignity and good repute by bedizening it with moral indignation. The judicial servant of the Anti-Saloon League thus takes on some of the neo-Christian character of the League’s own dervishes and sorcerers. He is not content to send some poor yokel to jail for an artificial crime that, in the view of at least eighty per cent. of all even half-civilized Americans, is no crime at all; he must also denounce the culprit from the bench in terms fit for a man accused of arson or mayhem. Here the Freudians, perhaps, may have something to say; the great masses of the innocent and sinful, knowing nothing of Freud, observe only that the learned jurist is silly as well as unjust. There issues from that observation a generally bilious view of his office and his person. He slides slowly down a fatal chute. His day of arctic and envied eminence passes. A few sensitive judges quietly retire from the bench. But the legal mind is usually tougher than that. It can almost always find justification for doing, as agent of the law, what would be inconceivable privately to a man of honor.

2

The truth is, indeed, that the decline in dignity from which the Federal judges now suffer is not wholly due to the external fact of Prohibition; it is due quite as much to their own growing pliancy and lack of professional self-respect. All that Prohibition does to them is to make brilliantly plain, even to the meanest understanding, their lamentable departure from that high integrity of purpose, that assiduous concern for justice, that jealous watchfulness over the rights of man which simple men, at all times and everywhere, like to find in the judges set over them, and which the simple men of the United States, not so long ago, saw or thought they saw in the learned ornaments of the Federal bench. Before ever Volstead emerged from the Christian Endeavor belt with his preposterous Act, confidence had begun to shake. The country had seen Federal judges who were unmistakably mountebanks; it had seen some who were, to the naked eye, indistinguishable from rascals. It had seen one step down from the highest court in the land to engage in an undignified stumping-tour, soliciting the votes of the rabble. It had seen another diligently insinuate himself into the headlines of the yellow press, in competition with Jack Dempsey and Babe Ruth. It had seen others abuse their powers of equity in the frank interest of capital, and deny the commonest justice to poor men in their clutches. And during the war it had grown accustomed to seeing the Federal bench converted into a sort of rival to the rostrum of Liberty Loan orators, with judges hurling pious objurgations at citizens accused of nothing worse than speaking their minds freely, and all pretense to fair hearings and just punishments abandoned.

Of late the multiplication of such Dogberries has gone on apace as the best of the old-time judges have retired from the bench. These new jurisconsults, rejecting justice openly and altogether, have even begun to reject the Constitution and the law. A judicial process before them is indistinguishable from a bull-fight, with the accused, if he is unpopular enough, as the bull. It is their theory, apparently, that the sole function of a judge is to fill the jails. If the accused happens to be guilty or to be reasonably suspected of guilt, well and good. But if, as in the Chicago Socialist trials, he is obviously innocent, to hell with him anyhow. True enough, a majority of the Federal judges, high and low, still stand clear of such buffooneries. Even in the midst of the worst hysteria of the war there were plenty who refused to be run amok by Palmer, Burleson and company; I need cite only Hand, J., and Rose, J., as admirable examples of a number of judges who preserved their dignity ’mid the rockets’ red glare. But the headlines in the newspapers had nothing to say about such judges; their blackest ink was reserved for the other kind. That other kind gradually established a view of the Federal bench that still persists, and that is growing more and more fixed as the farce of Prohibition enforcement unrolls. It is a view which, in brief, holds that the Federal bench is no longer the most exalted and faithful protector of the liberties of the citizen, but the most relentless and inordinate foe of them—that its main purpose is not to dispense justice at all, but to get men into jail, guilty or not guilty, by fair means or foul—that to this end it is willing to lend itself to the execution of any law, however extravagant, and to support that execution with a variety of casuistry that is flatly against every ordinary conception of common sense and common decency. The Espionage Act cases, the labor injunction cases, the deportation cases, the Postal Act cases, the Mann Act cases, and now the Prohibition cases—all of these, impinging in rapid succession upon a people brought up to regard the Bill of Rights as a reality and liberty as a precious thing, have bred suspicion of the Federal courts, including especially the Supreme Court, and, on the heels of that suspicion, a positive and apparently ineradicable distrust. I doubt that the Radical fanatics who dodge about the land have ever converted any substantial body of Americans to their crazy doctrines; certainly there is not the slightest sign today of the Revolution that they were predicting for last year, and the year before. But when they have denounced the Federal courts and produced the overwhelming evidence, their shots have gone home.

Now and then a judge has argued, defending himself against some manifestation of popular discontent, that he is helpless—that he is the agent, not of justice, but of law. Even in the hey-dey of the Espionage Act a few were moved to make that apology from the bench, including, if I remember rightly, the judge who sentenced Debs. The distinction thus set up is one that seems clear to lawyers, but, as I have said, it seldom gets a hospitable hearing from plain men. If the latter believe anything at all it is that law without justice is an evil thing—that such law, indeed, leads inevitably to a contradiction in terms—that the highest duty of the judiciary is not to enforce it pedantically, but to evade it, vitiate it, and, if possible, destroy it. The plain man sees plenty of other sorts of law destroyed by the courts; he can’t help wondering why the process is so seldom applied to statutes that violate, not merely legal apothegms, but the baldest of common sense. Thus when he beholds a Federal judge fining a man, under a constitutional amendment prohibiting the sale of intoxicating beverages, for selling a beverage that is admittedly not intoxicating, or jailing another man who has got before the bar, as everyone knows, not because he ran a still but because he refused to pay the bribe demanded by the Prohibition enforcement officer, or issuing against a third an injunction whose sole and undisguised purpose is to deprive him, by a legal swindle, of his constitutional right to a trial by jury of his peers—when he observes such monkey-shines going on in the name of the law, is it any wonder that he concludes dismally that the law is an ass, and its agent another? In ordinary life men cannot engage in such lunatic oppressions of their fellow-men without paying a penalty for it; even a policeman must be measurably more plausible and discreet. If a judge is bound by his oath to engage in them, then so much the worse for the judge. He can no more hope to be respected than a hangman can hope to be respected.

The truth is, of course, that the judges are by no means under the compulsion that is alleged. The injunction clause of the Volstead Act actually has no constitutional mandate behind it; the only constitutional mandate that I can find, bearing upon it at all, is against it. That is to be found in the Fifth and Sixth Amendments. The first of these amendments provides that “no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury”; the second requires that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed.” It must be obvious to everyone that the aim of the injunction clause is simply and solely to deprive the accused of these safeguards—to rob him of his clear right to a trial by a jury of his peers. The history of the clause reveals the fact clearly. It was first heard of in Iowa in the early years of the century, and it was invented there, not by Prohibitionists, but by the frantic vice-crusaders who then raged and roared in the hinterland, inflaming the pious with gaudy yarns about white slave traders, seducers armed with hypodermic syringes, and other such phantasms. In Iowa these vice-crusaders specialized in the harassing of the sort of poor women who keep cheap lodging-houses. When such a woman, by ignorance or inadvertance, admitted a lady no longer a lady to her establishment, they raided her, dragged her to jail, and charged her with keeping a bawdy-house. This was good sport, and the rev. pastors urged it on every Sunday. But after the first uproar, it began to develop defects, and the chief of these defects was that juries refused to convict. Now and then a man of sense and self-respect got upon the panel and spoiled the show. Perhaps he found it impossible to believe the sworn testimony of the vice-crusaders. Perhaps he concluded that the accused, though guilty, had been punished enough by the raid. Whatever his motive, he hung the jury and killed the hunting.

It was then that Christian lawyers came to the rescue of pious and baffled men. They did it by the simple process of throwing the whole responsibility upon the judge. Juries were hard to intimidate; there was always apt to be at least one juror who didn’t care a hoot what was said against him from the sacred desk—some hell-cat who positively rejoiced in the indignation of the knock-’em-down-and-drag-’em-out clergy. But judges were tenderer. Some of them were candidates for re-election to the bench; all of them were solicitous about their dignity, and did not care to face ecclesiastical curses, pious whispers, suggestive winks. So the Iowa lawyers amended the law by inventing and inserting the injunction clause. This clause flatly abolished the right of trial by jury. When the vice-crusaders found a likely victim they simply got a friendly judge to issue an injunction against her, restraining her from using her premises for immoral purposes. Then they watched her closely. The moment they detected a dubious female entering her door they raided her again, dragged her before the same judge—and he jailed her for contempt of court, an offense punishable summarily and without a jury trial. Nine times out of ten, perhaps, a jury would have acquitted her, but the judge was already safely against her.

This scheme gave the vice-crusaders a new lease of life and greatly increased their takings in the Sunday-schools. Naturally enough, the Prohibitionists, who were, in most cases, none other than the vice-crusaders themselves, instantly borrowed it, and so it got into the Prohibition acts of all the dry States. Volstead, as a country State’s attorney on the Minnesota steppes, employed it diligently and to vast effect. He put it into the Volstead Act as a matter of course. There it stands today, a dishonest and disgraceful blemish upon American law. Its deliberate aim is to take away from the citizen accused of crime his constitutional right to a jury trial; no imaginable argument in favor of it can dodge that plain fact. When it is invoked, as under the Volstead Act, against a man who has been found guilty of one violation of the act, it not only punishes him doubly for that violation; it also punishes him in advance for a second offense that he has admittedly not committed, and deprives him of his constitutional means of defense in case he is subsequently accused. He is, in brief, put absolutely at the mercy of the judge—and the judge is already obviously suspicious of him, and may be a senile sadist or Prohibitionist demagogue to boot. The constitutional provision that a man accused of crime may throw himself upon a jury of plain men like himself, sworn to regard only the evidence actually before them—that if he is able to convince only one of the twelve that he is innocent, or not proved guilty beyond a doubt, he shall go free—this fundamental guarantee of the citizen, this most sacred of all human rights under Anglo-Saxon jurisprudence, is specifically nullified and made a mock of in order to satisfy the frenzy of a minority of fanatics!

That contempt of court should be an offense standing outside the purview of the Fifth and Sixth Amendments—that a judge should have the power to punish summarily all deliberate floutings of his dignity—this may be reasonably argued, though there are many sound considerations against it. But that it should be lawful to convert some other and wholly unrelated offense into contempt of court by a legal fiction, and so get around the Fifth and Sixth Amendments by a swindle—this is surely more than any sensible man would soberly maintain. When it is maintained, it is only by persons who are trying to put men into jail by processes that any average jury would revolt against—mill owners eager to get rid of annoying labor leaders, coal operators bent upon making slaves of their miners, Prohibitionists lusting for the punishment of their opponents. The injunction in strike cases has been a stench for years; it is, indeed, so bad that a large number of Federal judges refuse absolutely to employ it. It is a worse stench in Prohibition cases, for here it is becoming a formidable and favorite weapon, not merely in the hands of property-owners who want to put down strikes, but in the hands of criminal Prohibition agents who seek to wring blackmail from their victims. In brief, it has become a dishonest means of oppression for men who are even more dishonest than it is. Certainly it is idle to talk of respect for the laws when such devices have legislative and judicial sanction. No reasonable man, save he be ignorant of their nature and purpose, can conceivably respect them. If, on the ground that whatever is in the law should be given full faith and credit, he maintains that they should not be resisted, then he maintains that the Bill of Rights is no more than a string of empty phrases, and that any shyster who invents a way to evade and abrogate it is a jurist as dignified as John Marshall.

3

Is a judge bound to lend himself to such gross and dishonest attacks upon the common rights of the citizen? I am no lawyer, but I presume to doubt it. There were judges in 1918 who did not think themselves obliged to sacrifice the Bill of Rights to the Espionage Act, and who resolutely refused to do so, and yet, so far as I know, nothing happened to them; at least one of them, to my knowledge, has been since promoted to a circuit. Why should any judge enforce the injunction clause of the Volstead Act? Its enforcement is surely not an automatic act; it involves deliberation and decision by the judge; he may refuse his injunction without offering any explanation to anyone. What would follow if he arose one day in his high pulpit, and announced simply that his court was purged of all such oblique and dishonest enactments henceforth—that he had resolved to refuse to lend himself to the schemes of blackmailers with badges, or to harass and punish free citizens in violation of their fundamental constitutional rights and their plain dignity as human beings, or, in brief, to engage in any other enterprise as a judge that he would shrink from engaging in as a good citizen and a man of honor? Would the result be impeachment? I should like to meet a Congressman insane enough to move the impeachment of such a judge! Would it be a storm of public indignation?... Or would it be a vociferous yell of delight?

It seems to me, indeed, that the first judge who rises to such a rebellion will be the first judge ever to become a popular hero in the Republic—that he will be elevated to the Supreme Court by a sort of acclamation, even if it is necessary to get rid of one of the sitting justices by setting fire to his gown. But even imagining him so elevated, the remaining eight justices will still function, and all of us know what they think of the Bill of Rights. Wouldn’t such a rebel judge succumb to the system of which he was a discreet particle? Couldn’t the other eight judges nullify and make a mock of his heroic defiance? Could they, indeed? Then how? If a judge, high or low, actually called in justice to rescue a citizen from the law, what precisely could the Supreme Court do about it? I know of no appeal from the District Attorney in criminal cases, once the accused has been put in jeopardy; I know only of impeachment for judges who forget the lines of the solemn farce to which they are sworn. But try to imagine the impeachment of a judge charged with punching a hole in the Volstead Act, and letting in some common justice and common decency!

So far, no such rambunctious and unprecedented judge has been heard of,—none, that is, has objected to the injunction clause in toto and head on—nor do I specifically predict his advent. He may come, but probably he won’t. The law is a curse to all of us, but it is a curse of special virulence to lawyers. It becomes for them a sort of discreditable vice, a stealthy and degrading superstition. It robs them of all balance, of all capacity for clear thought, of all imagination. Judges tend to show this decay of the faculties in an exaggerated form; they become mere automata, bound by arbitrary rules, precedents, the accumulated imbecilities of generations of bad logic; to their primary lack of sense as lawyers they add the bombastic manner of bureaucrats. It is thus too much to hope for a judge showing any originality or courage; one Holmes in an era of Hardings and Coolidges is probably more than a fair allotment. But while the judges of the District Courts go on driving wild teams of jackasses through the Bill of Rights, and the rev. seniors of the Supreme Court give their approval to the business in solemn form, sometimes but not always with Holmes, J., and Brandeis, J., dissenting—while all this is going on, there are black clouds rolling up from the hinterland, where the Constitution is still taught in the schools and even Methodists are bred to reverence Patrick Henry. The files of Congress already show the way the wind is blowing—constitutional amendments to drag down and denaturize the Supreme Court, simple acts to the same end, other acts providing for the election of Federal judges, yet others even more revolutionary. I know of no such proposal that has any apparent merit. Even the best of them, hamstringing the courts, would only augment the power of a Congress that is ten times worse. But so long as judges pursue fatuously the evil business of converting every citizen into a subject, demagogues will come forward with their dubious remedies, and, soon or late, unless the bench pulls up, some of these demagogues will get themselves heard.