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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.