It will not do to say that an attorney in defending a client is not compelled to cheat and lie. What kind of defense could be made by any one who did not profess belief in the innocence of his client?—did not affirm it in the most serious and impressive way?—did not lie? How would it profit the defense to be conducted by one who would not meet the prosecution’s grave asseverations of belief in the prisoner’s guilt by equally grave assurances of faith in his innocence? And in point of fact, when was counsel for the defense ever known to forego the advantage of that solemn falsehood? If I am asked what would become of accused persons if they had to prove their innocence to the lawyers before making a defense in court, I reply that it is not for the public interest that a rogue have the same freedom of defense as an honest man; it should be a good deal harder for him. His troubles should begin, not when he seeks acquittal, but when he seeks counsel. It would be better for the community if he could not obtain the services of a reputable attorney, or any attorney at all. A defense that can not be made without his attorney’s knowledge of his guilt should be impossible to him.
VI
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.
VII
A law under which the unsuccessful respondent in a divorce proceeding may be forbidden to marry again during the life of the successful complainant, the latter being subject to no such disability, is unrighteous. If the disability is intended as a punishment it is exceptional among legal punishments in that it is inflicted without conviction, trial or arraignment, the divorce proceedings being quite another and different matter. It is exceptional in that the period of its continuance, and therefore the degree of its severity, are indeterminate; they are dependent on no limiting statute, and on neither the will of the power inflicting nor the conduct of the person suffering. To sentence a person to a punishment that is to be mild or severe according to chance or—which is even worse—circumstances which but one person, and that person not officially connected with administration of justice, can partly control, is a perversion of the main principles that are supposed to underlie the laws.
It can be nothing to the woman—possibly herself remarried—whether the man remarries or not; that is, can affect only her feelings, and only such of them as are least creditable to her. Yet her self-interest is enlisted against him to do him incessant disservice. By merely caring for her health she increases the sharpness of his punishment—for punishment it is if he feels it such; every hour that she wrests from death is added to his “term.” The expediency of preventing a man from marrying, without having the power to prevent him from making his marriage desirable in the interest of the public and vital to that of some woman, is not discussable here. If a man is ever justified in poisoning a woman who was once his wife it is when, by way of making him miserable, the state has given him a direct and distinct interest in her death.