I
One of the defects in the American system of government, if so superb a confection of the human mind and heart may be said, without indecency, to have any defects at all, lies in the fact that it fails to provide swift and condign punishment for the special crimes of public officials. Even when their wrong-doings take the form of offenses against the ordinary criminal statutes of the realm—as, for example, embezzlement, conversion, blackmail, armed entry, kidnaping or common assault—it seems to be very difficult to bring them under the lash of justice; they enjoy, as it were, an unwritten immunity to criminal process, running with the constitutional immunity of United States Senators, who cannot be taken by the gendarmerie, even for adultery or bootlegging, while the Senate is in session. The thugs and perjurers of the so-called Department of Justice, during the reign of the Martyr Wilson, committed nearly all the crimes of fraud and violence on the books, and yet, so far as I know, not one of them was ever punished, or, indeed, so much as prosecuted. Several Federal district attorneys, toward the end of that festival of oppression and worse, protested against it publicly, and there were bitter yells from specialists in human liberty and from the relatives, lodge-brothers and creditors of some of the victims, but no Federal grand jury indicted any of the criminals, and no Federal judge condemned them to the hulks. To this day, if my agents are to be believed, the same thing is going on, though perhaps on a more modest scale. Prohibition enforcement officers in all parts of the country are breaking into houses without warrants, destroying property without due process of law, engaging in blackmail in a wholesale manner, and assaulting and murdering citizens almost at their will, and yet one seldom hears of them going to jail for it, and I know of none who has been hanged.
When it comes to crimes that are peculiar to public officials and that arise out of the nature of their legal status, as bigamy and wife-beating arise out of the nature of a married man’s, the case is even worse. I allude here to such special offenses as dissipating the public funds, loading the public rolls with useless and pediculous job-holders, letting contracts and franchises to political and private friends, converting public property to private uses, condoning crimes against the government, and administering the laws in a partial and dishonest manner—all of them impossible to the mere citizen and taxpayer, as default in alimony is impossible to the bachelor. Here the ordinary criminal statutes are obviously ineffective, and of special statutes there are almost none. What was the late Mr. Fall guilty of? His accusers, it appears, had to fall back upon the vague charge of conspiracy, which was not unlike accusing a burglar of trespass. With the general run of official delinquents it is impossible to go even so far. Their crimes have no names, and no adequate punishments. Certain high dignitaries, when taken in gross malfeasances, may be impeached, and most lesser ones, though not all, may be cashiered. But neither punishment is harsh enough to be a deterrent, and neither is swift and sure. Since the first days of the Republic but eight Federal job-holders have been brought before the bar of the Senate on impeachment by the House of Representatives, and of these but two have been found guilty and removed from office. Both of the latter were judges; one was convicted of drunkenness on the bench and the other of corrupt dealings with litigants. Is it argued seriously by anyone that, during all those years, but two Federal judges have been guilty of such offenses? Is it argued, indeed, that the bench is wholly guiltless of them, and of all other crimes, today?
Many of the sitting Federal judges, as a matter of fact, are obviously unfit for the duties they have to perform. Some of them owe their jobs to litigants who are habitually before them, and others are admittedly beholden to such corrupt agencies as the Anti-Saloon League. Is it maintained that such dubious fellows make competent and respectable judges, or that the clumsy and enormously costly process of impeachment offers a practicable means of dealing with their frequent and flagrant peccadillos? Plainly not. Even when their obscenities upon the bench become publicly scandalous they are protected by the fact that impeachment is essentially a political, not a judicial process, and that in consequence it is excessively slow and uncertain—in other words, by the fact that it lacks the very characters which legal punishment fundamentally needs. It is, as a matter of practise, almost as safe for a Federal judge to take care of his fellow-golfers and scofflaws as it is for a Prohibition officer to blackmail a bootlegger or for an agent of the Department of Justice to manufacture perjury against so-called Reds. If he belongs to the party in control of Congress he cannot be impeached for any crime short of highway robbery or piracy on the high seas, and even if he belongs to the minority party the citizen who complains of him must be extremely influential to be heard at all, and extremely rich to meet the heavy costs of prosecuting him. In brief, the remedy against him that is offered by the Constitution and the laws is, in substance, no remedy at all. No matter how grossly he violates his oath and the decencies, he commonly remains upon the bench until some grateful litigant or syndicate of litigants offers him a better job.
Moreover, it must be plain that the punishment of impeachment and removal from office, or of removal by executive order, without impeachment, is usually grossly inadequate. When job-holders become so unbearably corrupt or incompetent that they are actually separated from their jobs, they commonly deserve hanging, or, at least, long confinement in the hoosegow. Simply to turn them out, leaving them free to aspire to other offices, is as absurd as it would be to limit a burglar’s punishment to kicking him out of the house. The case of the late Denby, Secretary of the Navy, is in point. I have no opinion as to the guilt or innocence of the gentleman; I merely recall the fact that he was accused of the very grave offense of dissipating the national property and imperilling the national defense. It would be difficult to imagine anything more flagrantly anti-social, more thoroughly vicious, more damaging to the common weal; put beside it, such ordinary crimes as arson and larceny seemed relatively harmless. Nevertheless, the worst punishment that could be inflicted upon Denby was the banal one of depriving him of his office. It was impossible, for political reasons, to impeach him or even to attempt to impeach him, and he was simply turned out, with a file of high naval dignitaries saluting him as he left and a great crowd cheering him as he got home. Here cause and effect took on a disproportion that was truly colossal; it was almost as if Czolgosz had been fined $10 for dispatching McKinley. If Denby was innocent, he deserved the salute and the cheers without the loss of his job. And if he was guilty, if only of negligence, he plainly merited at least a geological epoch on Devil’s Island.