JUDICIAL MANNERS
JUDICIAL
285
MANNERS
By Ira Jewell Williams THE present fashion of almost un limited criticism of the conduct of public men, being founded for the most part in political partisanship or jealousy, sen sational newspaper methods, or the exag gerated if honest belief in the virtue of the "literature of exposure," has not yet ex tended to the Bench. There have been occasional exceptions, as when a judge of the court of last resort, by reversing his former vote, on a question of the gravest public interest, declared unconstitutional the attempt to levy an income tax. Of this decision, Chief Justice Walter Clark, of North Carolina, said :
wrong." True, public discontent has at times flamed out upon what was believed to be a vicious principle, as in the protest, in large part mistaken, against "government by injunction": and the power of the judges has in some states been wisely shorn, by stripping them of the rights to punish for "constructive contempts," and by making the jury the judges of the law as well as the fact in cases of libel. But in the main the remark holds good that the conduct of a judge upon the Bench has fewer safeguards than that of any other public official. And perhaps it is the lack of such careful sane discussion that has led some judges to exer "Under an untrue assumption of authority cise their "discretion" in .an arbitrary given by thirty -nine dead men, one man manner, and to conduct the business of nullified the action of Congress and the their courts in a method quite foreign to a President and the will of seventy-five mil "place where justice is judicially adminis lions of living people, and in the thirteen tered." For, as the great Chief Justice years since has taxed the property and labor of the country, by his sole vote, Marshall was careful to point out, "Judicial power is never exercised for the purpose of $1,300,000,000, which Congress, in compli ance with the public will and relying on giving effect to the will of the judge; always previous decisions of the Court, had decreed for the purpose of giving effect to the will should be paid out of the excessive incomes of the law." 1 of the rich." Jealousy of one's prerogatives, it may be Recent examples may be found in the remarked in passing, is a human failing, be Senate debates of the Railroad Rate Bill and it in bootblack or poet; and the Bench has not escaped its touch. An effort to make the picturesque explosions of Senator Till man, that exponent of cornfield law, equally the courts go to the suitors instead of vice versatile with pitchfork or muck-rake . But versa, was deemed derogatory to the dignity as a rule, notwithstanding the "fierce light of the judiciary, held unconstitutional, and which beats upon the Bench," its sayings humorously denounced as an attempt to and doings have been treated with a civility establish a "peripatetic court of common at times approaching servility. The many, pleas to deliver the law at the doors of books and treatises upon legal ethics have suitors."2 A similar piece of legislation, requiring an appellate court to sit in some been devoted exclusively to the formula tion of correct rules of conduct for the Bar. twelve or more different cities in a state, for The Bench, in its relation to the Bar and to the convenience of counsel, was foiled before the public, has been almost immune from it .ran the gauntlet of the judges, by one irre suggestion. The divinity which hedges pressible legislator who jumped to his feet about a king has resulted in the tacit accep 1 Osborn v. Bank, 22 V. 5, 738. tance of the maxim, "The king can do no 2 Phila. v. Pepper, 17 Phila. 371.
