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.