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The advantages of this plan, I believe, are too patent to need argument. At one stroke it removes all the legal impediments which now make the punishment of a recreant job-holder so hopeless a process and enormously widens the range of possible penalties. They are now stiff and, in large measure, illogical; under the system I propose they could be made to fit the crime precisely. Say a citizen today becomes convinced that a certain judge is a jackass—that his legal learning is defective, his sense of justice atrophied, and his conduct of cases before him tyrannical and against decency. As things stand, it is entirely impossible to do anything about it. A judge could not be impeached on the mere ground that he is a jackass; the process is far too costly and cumbersome, and there are too many judges liable to the charge. Nor is anything to be gained by denouncing him publicly and urging all good citizens to vote against him when he comes up for re-election, for his term may have ten or fifteen years to run, and even if it expires tomorrow and he is defeated the chances are good that his successor will be quite as bad, and maybe even worse. Moreover, if he is a Federal judge he never comes up for re-election at all; once he has been appointed by the President of the United States, at the advice of his more influential clients and with the consent of their agents in the Senate, he is safe until he is so far gone in senility that he has to be propped on the bench with pillows. But now imagine any citizen free to approach him in open court and pull his nose! Or even, in aggravated cases, to cut off his ears, throw him out of the window, or knock him in the head with an ax! How vastly more attentive he would be to his duties! How diligently he would apply himself to the study of the law! How careful he would be about the rights of litigants before him! How polite and even suave he would become! For judges, like all the rest of us, are vain fellows: they do not enjoy having their noses pulled. Do not forget here that the ignominy resident in the operation would not be abated by the subsequent trial of the puller, even if he should be convicted and jailed. The fact would still be brilliantly remembered that at least one citizen had deemed the judge sufficiently a malefactor to punish him publicly, and to risk going to jail for it. A dozen such episodes, and the career of any judge would be ruined, even though the jails bulged with his critics. He could not maintain his dignity on the bench; even his own catchpolls would snicker at him behind their hands, especially if he showed a cauliflower ear, a black eye or a scar over his bald head. Moreover, soon or late some citizen who had at him would be acquitted by a petit jury, and then, obviously, he would have to retire. It might be provided by law, indeed, that he should be compelled to retire in that case—that an acquittal would automatically vacate the office of the complaining job-holder.
The present system, as I have said, has in late years eloquently demonstrated its ineffectiveness on a colossal scale in the great city of Washington, the seat of the First Chief of the Republic and of a hundred thousand job-holders of gradually lessening puissance, from members of the Cabinet down to janitors, messengers and bookkeepers. All efforts to impeach Daugherty failed; when he was got rid of at last it was by a blow below the belt; in the case of Denby, his fellow-Republicans of Detroit actually treated his dismissal as a martyrdom, and received him when he got home with a band of music and public prayers. If these eminent men were actually guilty of malfeasance in office they obviously deserved far more rigorous punishment; if they were guilty merely of carelessness and neglect they deserved a severe handling as public nuisances. Under the existing system they got what was virtually no punishment at all; under my system, at the most moderate guess, some bored and impatient citizen, during the long months when they were desperately hanging on to their jobs, would have at least ventured to duck them in the Potomac or set their shirt-tails afire. I doubt that any jury would have convicted him of excess, even had he held them under while he counted 100,000. The plain people could not make out just what they had done that was immoral, if anything; but there was an almost universal feeling that they were nuisances, and ought to be got rid of. Even if the citizen who, under my system, had laid hands upon them had been convicted subsequently and sent to jail, the weary newspaper readers of the land would have given three cheers for him, and he would have become a formidable candidate for the presidency on the completion of his term. Even Dr. Coolidge, I daresay, would have had a very friendly feeling for him, and perhaps might have sent him a box of cigars or some White House pies while he was in jail.
I present my system formally to the consideration of the Congress, and offer to explain it in greater detail before a joint session of both Houses at any time not in conflict with my literary engagements. I am no lawyer, to be sure. I once studied law for a space, but forgot it on closing the books. But I retain enough technic to be convinced that my scheme presents no constitutional difficulties. It violates no constitutional right that I am aware of; on the contrary, it specifically reaffirms the right to a trial by jury, now denied in a wholesale and shameless manner by the Federal courts. It sets up no new corps of corrupt and oppressive enforcement officers; it establishes no new jobs; it does not augment the already excessive powers of the police. If there is any lingering taint of injustice in it, then that injustice would be suffered by job-holders, nine-tenths of whom now rob and persecute the rest of us incessantly, and are fast habilitating the doctrine that we are feræ naturæ and have no rights that they are bound to respect. It is a system of criminal law that is democratic in the widest and loftiest sense. It augments the dignity and responsibility of the citizen, and tends to increase his concern with problems of government. It sets higher standards of conduct for public officers than prevail now, and makes corruption and incompetence dangerous. Above all, it breaks down the rigid and unintelligent formalism of our scheme of punishments, and makes it infinitely more pliant, appropriate and various. We have been tending for years to reduce all punishments to two: fine and imprisonment, the first usually no punishment at all, but a mere bribe to escape punishment, and the second often cruel and almost always ineffective. That this tendency is widely regarded as evil is shown by the extra-legal efforts to combat it that are made constantly by the Ku Klux Klan, the American Legion and other such agents of lynch law. My scheme would take over the rich ingenuities of these agents and give them formal legal sanction; it would restore to the art of putting down crime something of the fine bounce and gusto that it had in the Middle Ages, when tort and penalty were united by logical, and even, indeed, æsthetic bonds, and a judge who was imaginative and original was esteemed. The certainty of punishment would daunt the offender, and the uncertainty of its nature would fill him with dread. Once proceeded against, he would become enormously cautious and conscientious. A Congressman with his ears cut off, you may be sure, would not do it again. A judge, after two or three rocket flights through his court-room window, would be forced, by an irresistible psychological process, to give heed thereafter to the Constitution, the statutes, and the common rights of man. Even a police captain or a United States Senator, once floored with a bung-starter or rolled in a barrel, would begin to think.
I dedicate my plan to my country.