Chapter VI

As to the general question of a judge’s right to inflict arbitrary punishment for words that he may be pleased to hold disrespectful to himself or another judge, I do not myself believe that any such right exists; the practice seems to be merely a survival—a heritage from the dark days of irresponsible power, when the scope of judicial authority had no other bounds than fear of the king’s gout or indigestion. If in these modern days the same right is to exist it may be necessary to revive the old checks upon it by restoring the throne. In freeing us from the monarchical chain, the coalition of European Powers commonly known in American history as the valor of our forefathers stripped us starker than they knew.

Suppose an attorney should find his client’s interests imperiled by a prejudiced or corrupt judge—what is he to do? Denied the right to make representations to that effect, supporting them with evidence where evidence is possible and by inference where it is not, what means of protection shall he venture to adopt? If it be urged in objection that judges are never prejudiced nor corrupt I confess that I shall have no answer: the proposition will deprive me of breath.

If contempt is not a crime it should not be punished; if a crime it should be punished as other crimes are punished—by indictment or information, trial by jury if a jury is demanded, with all the safeguards that secure an accused person against judicial blunders and judicial bias. The necessity for these safeguards is even greater in cases of contempt than in others—particularly if the prosecuting witness is to sit in judgment on his own grievance. That should, of course, not be permitted: the trial should take place before another judge.

The public ear is served with rather more than just enough of nonsense about “attacks upon the dignity of the Bench,” “bringing the judiciary into disrepute” and the rueful rest of it. I crave leave to remind the solicitudinarians sounding these loud alarums on their several larynges that by persons of understanding a man is respected, not for the office that he holds, but for what he is, and that one public functionary will stand as high in their esteem as another if as high in character. The dignity of a wise and righteous judge needs not the artificial safeguarding which is a heritage of the old days when if dissent found a tongue the public executioner cut it out. The Bench will be sufficiently respected when it is no longer a place where dullards dream and rogues rob—when its _personnel_ is no longer chosen in the back-rooms of tipple-shops, forced upon yawning conventions and confirmed by the votes of men who know neither what the candidates are nor what they should be. With the gang that we have, and under our system must continue to have, respect is out of the question. The judges are entitled to just as much of its forms and observances as is needful to maintenance of order in their courts and fortification of their lawful power—no more. As to their silence under criticism, that is as they please. Nobody but themselves is holding their tongues.