Democracy and Liberty. William Edward Hartpole Lecky

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СКАЧАТЬ which for generations has been unknown among English judges, has been in some cases proved, and in many cases suspected, in America, and the belief that in large classes of cases judges will act as mere partisans on the bench has extended much further. The prevalence of lynch law, which is so strangely discordant with the high civilisation of American life, is largely due to that distrust of justice in many States which is the direct, manifest, acknowledged consequence of the system of popular election.

      No one, indeed, who knows the class of men who are wirepullers in the different American factions will expect their nominees on the bench to be distinguished either for impartiality or integrity. One of the most extraordinary instances of organised crime in modern history is furnished by the Molly Maguires of Pennsylvania, an Irish conspiracy which, with short intervals, maintained a reign of terror between 1863 and 1875 in the anthracite coalfields of that State. The innumerable murders they committed with impunity, and the extraordinary skill and daring of the Irish detective who succeeded in penetrating into their councils and at last bringing them to justice, form a story of most dramatic interest; but one of the most curious facts connected with them is the political influence they appear to have obtained. They controlled township affairs in several districts; they applied to their own purposes large public funds; they had a great influence in the management of counties; they were courted by both political parties; and they only failed by a few hundred votes in placing one of their body on the judicial bench.³⁸ I can here hardly do better than quote the language of Mr. Bryce, who, writing with ample knowledge of the subject, is evidently desirous of minimising as much as possible the importance of the facts which he honestly but reluctantly relates.

‘In a few States,’ he writes, ‘perhaps six or seven in all, suspicion has at one time or another, within the last twenty years, attached to one or more of the superior judges. Sometimes these suspicions may have been ill-founded. But though I know of only one case in which they have been substantiated, there can be little doubt that in several instances improprieties have been committed. The judge may not have taken a bribe, but he has perverted justice at the instance of some person or persons who either gave him a consideration or exercised an undue influence over him. … I have never heard of a State in which more than two or three judges were the object of distrust at the same time. In one State, viz. New York, in 1869-71 there were flagrant scandals, which led to the disappearance of three justices of the superior court who had unquestionably both sold and denied justice. The Tweed ring, when engaged in plundering the city treasury, found it convenient to have in the seat of justice accomplices who might check inquiry into their misdeeds. This the system of popular election for very short terms enabled them to do, and men were accordingly placed on the bench whom one might rather have expected to see in the dock—bar-room loafers, broken-down attorneys, needy adventurers—whose want of character made them absolutely dependent on these patrons. … They did not regard social censure, for they were already excluded from decent society; impeachment had no terrors for them, since the State legislatures, as well as the executive machinery of the city, was in the hands of their masters. … To what precise point of infamy they descended I cannot attempt, among so many discordant stories and rumours, to determine. It is, however, beyond a doubt that they made orders in defiance of the plainest rules of practice; issued in rum-shops injunctions which they had not even read over; appointed notorious vagabonds receivers of valuable property; turned over important cases to a friend of their own stamp, and gave whatever decision he suggested. … A system of client robbery sprang up, by which each judge enriched the knot of disreputable lawyers who surrounded him. He referred cases to them, granted them monstrous allowances in the name of costs, gave them receiverships with a large percentage, and so forth, they in turn either sharing the booty with him, or undertaking to do the same for him when he should have descended to the Bar and they have climbed to the Bench. Nor is there any doubt that criminals who had any claim on their party often managed to elude punishment… for governor, judge, attorney, officials, and police, were all of them party nominees. … In the instance which made much noise in Europe—that of the Erie Railroad suits—there was no need to give bribes. The gang of thieves who had gained control of the line and were ‘watering’ the stock were leagued with the gang of thieves who ruled the city and nominated the judges, and nobody doubts that the monstrous decisions in these suits were obtained by the influence of the Tammany leaders over their judicial minions.’³⁹

      Such is the state of things which flourished a few years ago in full exuberance in the capital of the great democracy of the West, and among a people who claim to be in the front rank of civilisation, and to have furnished the supreme pattern of the democracies of the future. Mr. Bryce does all that is in his power to soften the picture. He believes that the corrupt judges are only a small minority in a few States, and that there is no evidence that even the New York judges, in ordinary commercial cases, where no political interest came into play, and where the influence of particular persons was not exerted, decided unjustly or ‘took direct money bribes from one of the parties.’ He also takes a long historical flight over nearly three thousand years for the purpose of collecting parallel enormities. Hesiod complained of kings who received gifts to influence their decisions. Felix expected money for releasing St. Paul. Among the great despotisms of the East judicial corruption has always been common. In a single instance since the Revolution an English chancellor was found to have taken bribes; and in some of the more backward countries of Europe ‘the judges, except, perhaps, those of the highest court, are not assumed by general opinion to be above suspicion.’

Such arguments may be left to stand on their own merits. Of all the many functions which government is expected to discharge, the most important to the happiness of mankind is that of securing equal justice between man and man. No statesmen were more conscious of this truth than the great men who framed the Constitution of the United States; and, under the conditions of their time, they probably provided for it almost as perfectly as human prescience could have done. It would be a grave injustice to the American people to suppose that they were not in general a law-abiding people: they have more than once suppressed disorder in the States with an unflinching energy and a truly merciful promptness of severity which English Administrations might well imitate; and over a great part of the States honest justice is undoubtedly administered. But no one, I think, can follow American history without perceiving how frequently and seriously the democratic principle has undermined this first condition of true freedom and progress. As Mill justly says, the tyranny of the majority is not only shown in tyrannical laws. Sometimes it is shown in an assumed power to dispense with all laws which run counter to the popular opinion of the hour. Sometimes it appears in corrupt, tainted, partial administration of existing laws. Tyranny seldom assumes a more odious form than when judges, juries, and executives are alike the tools of a faction or a mob.

      Closely connected with this great abuse has been the system of treating all the smaller posts and offices, both under the Federal and the State governments, as rewards for party services, and changing the occupants with each change of political power. This is the well-known ‘spoils system,’ and it has permeated and corrupted American public life to its very roots. It did not exist in the early days of the Republic. Washington, in the eight years of his presidency, only removed nine officials, and all for definite causes. John Adams made the same number of changes. Jefferson made thirty-nine; and the three Presidents who followed only removed sixteen in the space of twenty years. John Quincy Adams, the last of this line of Presidents, was in this respect scrupulously just. ‘As he was about the last President,’ writes Mr. Goldwin Smith, ‘chosen for merit, not for availability, so he was about the last whose only rule was not party, but the public service. So strictly did he preserve the principle of permanency and purity in the Civil Service, that he refused to dismiss from office a Postmaster-General whom he knew to be intriguing against him.’

      The great evil which was impending was largely prepared by an Act of 1820, which limited the term of office of a vast number of subordinate officials to four years, and at the same time made them removable at pleasure. The modern system of making all posts under the Government, however unconnected with politics, rewards for party services was organised, in 1829, by Andrew Jackson. This President may be said to have completed the work of making the American Republic a pure democracy, which Jefferson had begun. His statue stands in front of the White House СКАЧАТЬ