destruction today was borrowed from the ancient Jews, authors of
the two Testaments. But there was a long period during which it was
overshadowed by purely logical ideas, many of them of a sort that would
be called bolshevistic today. The principal Christians of the apostolic
age were almost exactly like the modern Calvinists and Wesleyans--men
quite without taste or imagination, whoopers and shouters, low
vulgarians, cads. So far as is known, their public worship was wholly
devoid of the sense of beauty; their sole concern was with the
salvation of their so-called souls. Thus they left us nothing worth
preserving--not a single church, or liturgy, or even hymn. The objects
of art exhumed from the Catacombs are inferior to the drawings and
statuettes of Crô-Magnon man. All the moving beauty that adorns the
corpse of Christianity today came into being long after the Fathers had
perished. The faith was centuries old before Christians began to build
cathedrals, and nearly a thousand years old before they learned how to
build good ones. It was twelve hundred years old before they invented
mariolatry--the prime cause of the appearance of a purely Christian
poetry. We think of Christmas as the typical Christian festival, and
no doubt it is; none other is so generally kept by Christian sects,
or so rich in charm and beauty. Well, Christmas, as we now have it,
was almost unknown in Christendom until the Eleventh Century, when the
relics of St. Nicholas of Myra, originally the patron of pawnbrokers,
were brought from the East to Italy. At this time the Universal
Church was already torn by controversies and menaced by schisms, and
the shadow of the Reformation was plainly discernible in the West.
Religions, in fact, like castles, sunsets and women, never reach their
maximum of beauty until they are touched by decay.
5
_End-Product_
Christendom may be defined briefly as that part of the world in which,
if any man stands up in public and solemnly swears that he is a
Christian, all his auditors will laugh.
6
_Another_
At the end of one millennium and nine centuries of Christianity, it
remains an unshakable assumption of the law in all Christian countries
and of the moral judgment of Christians everywhere that if a man and a
woman, entering a room together, close the door behind them, the man
will come out sadder and the woman wiser.
7
_Holy Clerks_
Around no class of men do more false assumptions cluster than around
the rev. clergy, our lawful commissioners at the Throne of Grace. I
proceed at once to a crass example: the assumption that clergymen are
necessarily religious. Obviously, it is widely cherished, even by
clergymen themselves. The most ribald of us, in the presence of a holy
clerk, is a bit self-conscious, reticent and awed. I am myself given
to criticizing Divine Providence somewhat freely, but in the company
of the rector of my parish, even at the _Biertisch_, I tone down my
animadversions to a level of feeble and polite remonstrance. I know the
fellow too well, of course, to have any actual belief in his piety.
He is, in fact, rather less pious than the average right-thinking
Americano, and I doubt gravely that the sorceries he engages in
professionally every day awaken in him any emotion more lofty than
boredom. I have heard him pray for Coolidge, for the heathen and for
rain, but I have never heard him pray for himself. Nevertheless, the
public assumption that he is highly devout, though I dispute it, colors
all my intercourse with him, and deprives him of hearing some of my
most searching and intelligent observations.
All that is needed to expose the hollowness of this ancient delusion
is to consider the chain of causes which brings a young man to taking
holy orders. Is it, in point of fact, an irresistible religious impulse
that sets him to studying exegetics, homiletics and the dog-Greek of
the New Testament, and on irresistible religious impulse only, or is
it something quite different? I believe that it is something quite
different, and that that something may be described briefly as a desire
to shine in the world without too much effort. The young theologue,
in brief, is commonly an ambitious but somewhat lazy and incompetent
fellow, and he studies theology instead of medicine or law because it
offers a quicker and easier route to an assured job and public respect.
The sacred sciences may be nonsensical bores, but they at least have
the vast virtue of short-circuiting, so to speak, the climb up the
ladder of security. The young doctor, for a number of years after he
graduates, either has to work for nothing or to content himself with
the dregs of practise, and the young lawyer, unless he has unusual
influence or complete atrophy of the conscience, often teeters on
the edge of actual starvation. But the young divine is a safe and
distinguished man the moment he is ordained; indeed, his popularity,
especially among the faithful who are fair, is often greater at that
moment than it ever is afterward. His livelihood is assured instantly.
At one stroke, he becomes a person of dignity and importance, eminent
in his community, deferred to even by those who question his magic, and
vaguely and pleasantly feared by those who credit it.
These facts, you may be sure, are not concealed from ambitious young
men of the sort I have mentioned. Such young men have eyes, and even
a certain capacity for ratiocination. They observe the nine sons of
the police sergeant: one a priest at twenty-five, with a fine house
to live in, invitations to all christenings and birthday parties for
miles around, and plenty of time to go to the ball-game on Summer
afternoons; the others struggling desperately to make their livings as
piano-movers, tin-roofers, motormen or bootleggers. They observe the
young Methodist dominie in his Ford sedan, flitting about among the
women while their husbands labor down in the yards district, a clean
collar around his neck, a solid meal of fried chicken in his gizzard,
and his name in the local paper every day. They observe the Baptist
dervish in his white necktie, raiding saloons, touring the bawdy-houses
and raising hell generally, his tabernacle packed every Sunday night,
a noble clink of silver in his collection-plates, and a fat purse for
him now and then from the Ladies’ Aid or the Ku Klux Klan. Only crazy
women ever fall in love with young doctors or lawyers, but every young
clergyman, if he is so inclined, may have a whole harem, and with
infinitely less danger than a struggling lawyer, a bootlegger or a bank
clerk runs every day. Even if he is celibate, the gals bathe him in
their smiles; in truth, the more celibate he is, the more attention he
gets from them. No wonder his high privileges and immunities propagate
the sin of envy! No wonder there are still candidates for the holy
shroud, despite the vast growth of atheism among us!
It seems to me that the majority of the young men who are thus sucked
into holy orders are not actually pious at all, but rather somewhat
excessively realistic--that genuine piety is far more apt to keep a
youth out of the pulpit than to take him into it. The true devotee,
frequenting the sacred edifice constantly, becomes too familiar with
the daily duties of a clergyman to see any religious satisfaction in
them. In the main, they have nothing to do with religion at all, but
are basically social or commercial. In so far as a clergyman works at
all, he works as the general manager of a corporation, and only too
often it is in financial difficulties and rent by factions among the
stockholders. His specifically religious duties are of a routine and
monotonous nature, and must needs depress him mightily, as a surgeon is
depressed by the endless snaring of tonsils and excision of appendices.
He debases spiritual exaltation by reducing it to a hollow and
meaningless formality, as a politician debases patriotism and a lady of
joy debases love. He becomes, in the end, quite anæsthetic to religion,
and even hostile to it. The fact is made distressingly visible by the
right rev. the bench of bishops. For a bishop to fall on his knees
spontaneously and begin to pray to God would make almost as great
a scandal as if he mounted his throne in a bathing-suit. The piety
of the ecclesiastic, on such high levels, becomes wholly formal and
theoretical. The servant of God has been lifted so near to the saints
and become so familiar with the inner workings of the divine machinery
that the sense of awe and wonder has oozed out of him. He can no more
undergo a genuine religious experience than a veteran scene-shifter can
laugh at the wheezes of the First Gravedigger. It is, perhaps, well
that this is so. If the higher clergy were actually religious some of
their own sermons and pastoral epistles would scare them to death.
IV. JUSTICE UNDER DEMOCRACY
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.