What is the matter with the bench of judges in San Francisco? The Mooney case, with its almost incredible perjuries, was enough to prove their lack of intelligence, but here there is no question of intelligence; it is simply a question of common decency. Why don’t they give the prisoner before them the protection that the law is supposed to throw about every citizen accused of crime? Why don’t they put an end to this revolting carnival of posturing and self-advertising—this open and undisguised attempt to get some profit out of a legal lynching? Why don’t they hale the worst offenders before them—and especially some of the prosecuting staff—and send them to jail for contempt of court?
It is not my privilege to enjoy the honor of M. Arbuckle’s acquaintance, and, since I never go to the movies, I have no prejudice in favor of him on aesthetic grounds. If it were proposed tomorrow to pass a law providing that every moving-picture actor in the country should be flogged at the cart’s tail once a week, I’d probably be in favor of it, as I’d undoubtedly be in favor of a law providing for the same punishment for evangelists, tenors, members of Congress and golf-players. But no such law is on the books, or even proposed; a moving-picture actor is still theoretically a free citizen and possessed of all the rights that you or I possess. Is it giving him those rights to charge him absurdly, despite all the evidence and all the probabilities, with a capital offense, to permit a host of irresponsible zanies to flood the newspapers with filthy innuendoes against him, and to convert the inquiry into the matter into a clown-show, with a sworn officer of the law as chief mountebank?
Consider the circumstances. No one, not even the press-agent of the San Francisco prosecuting officer, alleges that Arbuckle deliberately murdered the late Mile. Rappe. The worst argued against him is that he is constructively guilty of murder because he inflicted fatal injuries upon her while committing a lesser felony. What was that lesser felony? In brief, what the newspapers mellifluously call “criminal assault”—Anglais: rape. And how and where was that “assault” committed? In a hotel room—with the next room, separated by only a thin door, crowded with men and women, many of them intimate friends of the alleged victim. Try to think of something more ridiculous. Why didn’t she call for help? Why didn’t she denounce the accused immediately after the alleged crime? Why did the whole party, after her departure, continue in amicable conversation for an hour? Why did the physicians who attended her discover no evidence of the assault and bear no complaint about it from her, and make no report to the police? Finally, what sane man is going to believe that a woman who habitually frequented the low orgies of moving-picture actors—a familiar figure in their drunken and degraded society—who is going to believe that such a woman, entering the Arbuckle chamber publicly and willingly, would fight for her virtue so desperately as to sacrifice her life?
The whole case, indeed, reeks with nonsense. What must an intelligent foreigner, contemplating it, think of the administration of justice among us? Well, no matter how biliously he thinks about it, he will not be unjust himself. In many American jurisdictions, including especially California and New York, almost every case against a wealthy and prominent man is carried on in precisely the same way—the newspapers full of inflammatory tirades against him, the prosecuting officers eagerly grabbing all the publicity they can get out of it, a multitude of obscure scoundrels trying to horn into it as witnesses, and the learned judges observing the whole buffoonery with the utmost complacency, and even, on occasion—as during the war, for example—putting on the motley themselves, and leaping yelling into the ring. The question of Arbuckle’s guilt or innocence does not enter into the matter. The important thing is that a poor and obscure man, standing in his boots, facing the evidence that he faces, would go to jail, perhaps, for sixty days, and then depart in peace. But Arbuckle, having plenty of money and being good for first-page stories every day, is actually brought into the shadow of the gallows—and if the State prosecuting officers, by some mischance, muff him, then their Federal brethren will take a hack at him for bootlegging and white slavery.
This last embellishment appears inevitably in every American cause célèbre. Let it begin to appear that a defendant of wealth and prominence, i.e., a defendant who makes good hunting for prosecuting officers aspiring to higher office, is likely to be acquitted of the first charge brought against him, and at once he will be confronted by a series of other charges. Our insane laws, which prohibit thousands of acts that are committed by perfectly reputable persons every day, make it possible for almost any man, once he falls into the hands of the police, to be put on trial for some offense that may be severely punished. The Volstead Act is typical of this sort of dishonest legislation. It is violated by literally millions of Americans every day, and everyone knows that it is violated. It is violated as Fatty Arbuckle violated it—if he actually violated it at all—in every large American hotel every hour of the twenty-four. Not even so vast an ass as Volstead himself could imagine enforcing it equally against all men, as every law should be enforced. But it is a nice thing to have in reserve. It gives an ambitious prosecuting officer a second crack at his victim. It is good for one more first-page story in the newspapers. It clothes the whole buffoonery with the solemn dignity of the national Government, which is to say, with the solemn dignity of the honorable corps of Prohibition officers, including those who are honest as well as those who are for sale.
As for the poor oaf, Arbuckle, to return to him, he is already ruined. The movie films showing his harmless clownings are barred from all the movie parlors, lest the persons who gobble the filth about him in the newspapers be contaminated by looking at them. His lawyers and investigators, I daresay, will fix their fees on the principle of the German indemnity. If he is found guilty of manslaughter, what will it show? That he actually committed manslaughter, or simply that the fulminations in the newspapers fetched enough jurors to convict him?
V. LAW AND LAWYERS
Stewards of Nonsense
From the American Mercury, Jan., 1928, pp. 35–37
THE SAD thing about lawyers is not that so many of them are stupid, but that so many of them are intelligent. The craft is a great devourer of good men; it sucks in and wastes almost as many as the monastic life consumed in the Middle Ages. There is something about it that is extraordinarily attractive to bright youngsters, at all events in the United States. It not only offers the chance of very substantial rewards in money; it also holds out the temptation of a sort of public dignity, with political preferment thrown in for good measure. Most of our politicians are lawyers, and hence most of our statesmen. They swarm in the Senate and have almost a monopoly of the White House. Nevertheless, it must be plain that the law, as the law, has few rewards for a man of genuine ambition, with a yearning to leave his mark upon his time. How many American lawyers are remembered, as lawyers? I can think of a few: John Marshall, Daniel Webster, Joseph H. Choate. But the list soon runs out. Even so powerful and successful an advocate as William M. Evarts is already forgotten. In his day he was in all the big cases, from the Beecher-Tilden business to the hearing of the Alabama claims, but if he is remembered today—that is, by the everyday well-informed man—it is only vaguely, and as a politician. For the rest he survives in a few stiff portraits on steel in the offices of old-fashioned lawyers, themselves doomed to the same swift oblivion that has swallowed him. His associates in the Alabama case were Caleb Cushing and Morrison R. Waite. Who remembers them today, even as names? Cushing, according to the New International Encyclopedia, was “a man of unusual erudition and of rare ability, imposing in person and forcible in argument.” More, he was Attorney-General of the United States, Minister to China and Spain, and a brigadier-general in the Civil War, and in 1873 he came very near being Chief Justice. But mainly he was a lawyer, and as a lawyer his name was writ in water. Waite was actually Chief Justice, from 1874 to 1888. Today he lies forever forgotten among the innumerable John Smiths.
If lawyers were generally dull men, like the overwhelming majority o
f the rev. clergy, or simply glorified bookkeepers and shopkeepers, like most bankers and business men, it would not be hard to understand their humble station in history, but I don’t think it would be fair to put them into any of those categories. On the contrary, it must be manifest that their daily work, however useless it may be, demands intelligence of a high order, and that a numskull seldom if ever achieves any success at the bar, even of a police court. I speak, of course, of trial lawyers—of what the English call barristers. It may take only the talents of a clerk in a lime and cement warehouse to draw up mortgages and insert jokers into leases, but once a cause in law or equity comes to bar it calls for every resource of the human cerebrum. The lawyer standing there is exposed to a singularly searching and bitter whirlwind. He must know his facts, and he must think quickly and accurately. Those facts, perhaps, are quite new to him; he has engulfed them so recently as last night. But he must have them in order and at his command; he must be able to detect and make use of all the complicated relations between them; he must employ them as fluently as if they were ancient friends. And he must fit them, furthermore, into the complex meshes of the law itself—an inordinately intricate fabric of false assumptions and irrational deductions, most of them having no sort of kinship with fact at all, and many of them deliberately designed to flout it and get rid of it. This double job of intellectual tight-rope walking the lawyer must undertake. More, he must do it in the presence of an opponent who jogs and wiggles the rope, and to the satisfaction of an audience that is bored, hostile, and, worse still, disunited. If, marshalling the facts adeptly, he attempts a logical conquest of the jury, and if, while he is attempting it, he manages to avoid offending the jurymen with a voice that grates upon them, or a bald head that excites their risibilities, or a necktie that violates their pudeurs—if, by the lavish flogging of his cortex he accomplishes all this, then he is almost certain to grieve and antagonize the judge, to whom facts are loathsome and only the ultra-violet rays of the law are real. And if, wallowing in those rays, he arouses the professional interest and libido of the judge, then he is pretty sure to convince the jury that he is a sciolist and a scoundrel.
More than once, serving as a reporter for the press, I have lolled humbly in the bull-ring of jurisprudence, marvelling at the amazing dexterity and resilience of the embattled jurisconsults. What goes on there every day, year in and year out, far surpasses anything ever heard in any other arena. Compared to the jousting of lawyers, even of middling bad lawyers, the best that such theologians as the nation tolerates ever emit from their pulpits is as a crossword-puzzle to a problem in the differential calculus. Even in the halls of legislation nothing so apt, ingenious and persuasive is on tap, for though most legislators are lawyers they are all well aware that, as legislators, it would be fatal to them to talk sense. But in their strictly legal character, performing on the stage assigned to them, they let themselves go, and the result is often a series of intellectual exercises of the first chop. One may think of the courtroom of the Supreme Court of the United States as a theatre of dullness so heavy that the very catchpolls drowse, and of imbecility so vast that even Congress is shamed and made to hang its head; nevertheless, I have heard in my time, in that very chamber, arguments that stimulated me like the bouquet of a fine Moselle, or the smile of a princess of the blood, or an unexpected kick in the pantaloons.
Why, then, are lawyers, in essence, such obscure men? Why do their undoubted talents yield so poor a harvest in immortality? The answer, it seems to me, is not occult. Their first difficulty lies in the fact that at least nine-tenths of their intellectual steam is wasted upon causes and enterprises that live and perish with a day—that have, indeed, no genuine existence at all. And the second lies in the fact that when they engage in matters of more and permanent importance they almost invariably find themselves doomed to bring to them, not any actual illumination, but only the pale glow of a feeble and preposterous casuistry. Here they are on all fours with the theologians, and stand in the same shadows. It is their professional aim and function, not to get at the truth but simply to carry on combats under ancient and archaic rules. The best courtroom arguments that I have ever heard were not designed to unearth the truth; they were designed to conceal, maul and destroy the truth. More than once I have heard two such arguments opposed to each other, and both driving to the same depressing end. And at their conclusion I have heard the learned judge round up and heave out what remained of the truth in an exposition that surpassed both.
One reads many of the decisions of our higher courts, indeed, with a sort of wonder. It is truly astonishing that so much skill and cunning should be wasted upon such transparent folly. The thing becomes a mere crazy-quilt of platitude and balderdash—much of it, to be sure, immensely ingenious, but the whole of it of no more dignity, at bottom, than a speech by radio. It is as if eminent mathematicians should devote themselves for weeks running to determining the proper odds upon a dark horse at Tia Juana. It is as if a whole herd of gifted surgeons, summoned to cure a corn, should proceed solemnly to cut off the patient’s leg at the hip. It is as if Aristotle, come back to earth, should get up at 5 A.M. to see a parade of the Mystic Shrine.
One admires the logician, but feels an unescapable repugnance to the man. And that feeling, I believe, is general in the world—nay, it increases steadily. In the formative days of the law the human race admired lawyers and judges, and even made heroes of them: the cases of Solon, C.J., Hammurabi, C.J., and John Marshall, C.J., will be recalled. But today the law has lost the blood of life and become a fossil, and its practitioners have petrified with it. Reduced to plain terms, what they engage in for a living is simply nonsense. It is their job, not to dispose of that nonsense, but to preserve it, pump it up, protect it against assault. So consecrated, they spend their lives in futility, and pass into oblivion unregretted and unsung.
Over the Side
From the Baltimore Evening Sun, Nov. 18, 1929
Of all the so-called learned professions, the law seems to be the least interesting to its practitioners. Relatively few of them are ever impelled to write anything about it, and nine-tenths of them seem eager to get out of it at the first chance—into politics, into business. This is surely not true of medicine. I know hundreds of medical men, but I can’t think of one among them who really wants to abandon his trade. Now and then, of course, they talk against it gloomily, but this is only talk. At bottom, they like it, and for a plain reason: it is interesting and it is reasonably useful. Find a doctor who has political aspirations and five times out of six you have found a quack. But in the law even the best of them are always trying to get out.
The Judge
From the Baltimore Evening Sun, Aug. 26, 1929
Human beings spend a great deal of their time in laughing at one another. Every man seems absurd to his neighbor, not only in his diversions, but also in his sober labors. My own favorite object of mirth is one of the most austere and venerable figures in our society, to wit, the judge. If I frequent courtrooms very little, it is only because I have a high theoretical respect for his office, and so do not want to be tempted to laugh at him. That temptation, in his actual presence, is almost irresistible. There he sits for hour after hour, listening to brawling shysters, murkily dozing his way through obvious perjury, contemplating a roomful of smelly loafers, and sadly scratching himself as he wonders what his wife is going to have for dinner, all the while longing horribly for a drink. If he is not a comic figure, then there is none in this world.
Years ago, when I had literary ambitions, I blocked out a one-act play about a judge. Now that I am too old to write it I may as well give it away. The scene is a courtroom, and the learned judge is on the bench, gaping wearily at his customers. They are of the usual sort—witnesses trying to remember what the lawyers told them to say, policemen sweating in their padded uniforms, bailiffs on the lookout for pickpockets, newspaper readers and tobacco chewers, and long ranks of dirty and idiotic old men, come in to get warm. In
front of the judge a witness is being examined by a lawyer. To one side twelve jurymen snooze quietly. The place smells like an all-night trolley-car on a Winter night.
The judge, unable to concentrate his attention upon the case at bar, groans wheezily. It is a dreadful life, and he knows it. Of a sudden the opposition lawyer objects to a question put to the witness, and the judge has to pull himself together. The point raised is new to him. In fact, it goes far beyond his law. He decides in loud, peremptory tones, notes the exception, and resumes his bitter meditations. What a life! What a finish for a man who was once a gay dog, with the thirst of an archbishop and an arm for every neck! What a reward for long years of toil and privation! A tear rolls down the judge’s nose.
As he shakes it off his eyes sweep the courtroom, and a strange thrill runs through him. There, on the last seat, sandwiched between a police sergeant and a professional bondsman, is the loveliest cutie ever seen. There, in the midst of the muck, is romance ineffable. The judge shoots his cuffs out of his gown, twirls his moustache, permits a soapy, encouraging smirk to cover his judicial glower, and gives a genial cough. How thrilled the cutie will be when she sees that he notices her. What a day in a poor girl’s life. What an episode to remember—the handsome and amiable judge, the soft exchange of glances. He coughs a bit louder.
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