I have said that the poetry which safeguards Christianity from

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.

Prejudices, fourth series · 第 4 / 16 段