[From the American Mercury, 1924 June, pp. 156-159. Reprinted with an introduction in A Mencken Crestomathy (NY: Vintage Books, c1949, 1982), pp. 384-388.]
From the American Mercury, June 1924, pp. 156-59. This was written long before the New Deal afflicted the country with a great mass of new administrative law and a huge horde of new and extra-tyrannical jobholders. I am more than even convinced that it embodied a good idea.
In the immoral monarchies of the continent of Europe, now happily abolished by God’s will, there was, in the old days of sin, an intelligent and effective way of dealing with delinquent officials. Not only were they subject, when taken in downright corruption, to the ordinary processes of the criminal laws; in addition they were liable to prosecution in special courts for such offenses as were peculiar to their offices. In this business the abominable Prussian state, though founded by Satan, took the lead. It maintained a tribunal in Berlin that devoted itself wholly to the trial of officials accused of malfeasance, corruption, tyranny and incompetence, and any citizen was free to lodge a complaint with the learned judges. The trial was public and in accord with rules fixed by law. An official found guilty could be punished summarily and in a dozen different ways. He could be reprimanded, reduced in rank, suspended from office for a definite period, transferred to a less desirable job, removed from the rolls altogether, fined, or sent to jail. If he was removed from office he could be deprived of his right to a pension in addition, or fined or jailed in addition. He could be made to pay damages to any citizen he had injured, or to apologize publicly.
All this, remember, was in addition to his liability under the ordinary law, and the statutes specifically provided that he could be punished twice for the same offence, once in the ordinary courts and once in the administrative court. Thus, a Prussian official who assaulted a citizen, invaded his house without a warrant, or seized his property without process of law, could be deprived of his office and fined heavily by the administrative court, sent to jail by an ordinary court, and forced to pay damages to his victim by either or both. Had a Prussian judge in those far-off days of despotism, overcome by a brain-storm of kaiserliche passion, done any of the high-handed and irrational things that our own judges, Federal and State, do almost every day, an aggrieved citizen might have haled him before the administrative court and recovered heavy damages from him, besides enjoying the felicity of seeing him transferred to some distant swap in East Prussia, to listen all day to the unintelligible perjury of anthropoid Poles. The law specifically provided that responsible officials should be punished, not more leniently than subordinate or ordinary offenders, but more severely. If a corrupt policeman got six months a corrupt chief of police got two years. More, these statutes were enforced with Prussian barbarity, and the jails were constantly full of errant officials.
I do not propose, of course, that such medieval laws be set up in the United States. We have, indeed, gone far enough in imitating the Prussians already; if we go much further the moral and enlightened nations of the world will have to unite in a crusade to put us down. As a matter of fact, the Prussian scheme would probably prove ineffective in the Republic, if only because it involved setting up one gang of jobholders to judge and punish another gang. It worked well in Prussia before the country was civilized by force of arms because, as everyone knows, a Prussian official was trained in ferocity from infancy, and regarded every man arraigned before him, whether a fellow official or not, guilty ipso facto; in fact, any thought of a prisoners’ possible innocence was abhorrent to him as a reflection upon the Polizei, and by inference, upon the Throne, the whole monarchical idea, and God. But in America, even if they had no other sentiment in common, which would be rarely, judge and prisoner would often be fellow Democrats or fellow Republicans, and hence jointly interested in protecting their party against scandal and its members against the loss of their jobs. Moreover, the Prussian system had another plain defect: the punishments it provided were, in the main, platitudinous and banal. They lacked dramatic quality, and they lacked ingenuity and appropriateness. To punish a judge taken in judicial crim. con. by fining him or sending him to jail is a bit too facile and obvious. What is needed is a system (a) that does not depend for its execution upon the good-will of fellow jobholders, and (b) that provides swift, certain and unpedantic punishments, each fitted neatly to its crime.
I announce without further ado that such a system, after due prayer, I have devised. It is simple, it is unhackneyed, and I believe that it would work. It is divided into two halves. The first half takes the detection and punishment of the crimes of jobholders away from courts of impeachment, congressional smelling committees, and all the other existing agencies—i.e., away from other jobholders—and vests it in the whole body of free citizens, male and female. The second half provides that any member of that body, having looked into the acts of a jobholder and found him delinquent, may punish him instantly and on the spot, and in any manner that seems appropriate and convenient—and that, in case this punishment involves physical damage to the jobholder, the ensuing inquiry by a grand jury or coroner shall confine itself strictly to the question of whether the jobholder deserved what he got. In other words, I propose that it shall be no longer malum in se for a citizen to pummel, cowhide, kick, gouge, cut, wound, bruise, maim, burn, club, bastinado, flay, or even lynch a jobholder, and that it shall be malum prohibitum only to the extent that the punishment exceeds the jobholder’s deserts. The amount of this excess, if any, may be determined very conveniently by a petit jury, as other questions of guilt are now determined. The flogged judge, or Congressman, or other jobholder, on being discharged from hospital—or his chief heir, in case he has perished—goes before a grand jury and makes a complaint, and, if a true bill is found, a petit jury is empaneled and all the evidence is put before it. If it decides that the jobholder deserves the punishment inflicted upon him, the citizen who inflicted it is acquitted with honor. If, on the contrary, it decides that this punishment was excessive, then the citizen is adjudged guilty of assault, mayhem, murder, or whatever it is, in a degree apportioned to the difference between what the jobholder deserved and what he got, and punishment for that excess follows in the usual course.
The advantages of this plan, I believe, are too patent to need argument. At one stroke it removes all the legal impediments which now make the punishment of a recreant jobholder so hopeless a process, and enormously widens the range of possible penalties. They are now stiff and, in large measure, illogical; under the system I propose they could be made to fit the crime precisely. Say a citizen today becomes convinced that a certain judge is a jackass—that his legal learning is defective, his sense of justice atrophied, and his conduct of cases before him tyrannical and against decency. As things stand, it is impossible to do anything about it. A judge cannot be impeached on the mere ground that he is a jackass; the process is far too costly and cumbersome, and there are too many judges liable to the charge. Nor is anything to be gained from denouncing him publicly and urging all good citizens to vote against him when he comes up for re-election, for his term may run for ten or fifteen years, and even if it expires tomorrow and he is defeated the chances are good that his successor will be quite as bad, and maybe even worse. Moreover, if he is a Federal judge he never comes up for re-election at all, for once he has been appointed by the President of the United States, on the advice of his more influential clients and with the consent of their agents in the Senate, he is safe until he is so far gone in senility that he has to be propped up on the bench with pillows.
But now imagine any citizen free to approach him in open court and pull his nose. Or even, in aggravated cases, to cut off his ears, throw him out of the window, or knock him in the head with an axe. How vastly more attentive he would be to his duties! How diligently he would apply himself to the study of the law! How careful he would be about the rights of litigants before him! How polite and suave he would become! For judges, like all the rest of us, are vain fellows: they do not enjoy having their noses pulled. The ignominy resident in the operation would not be abated by the subsequent trial of the puller, even if he should be convicted and jailed. The fact would still be brilliantly remembered that at least one citizen had deemed the judge sufficiently a malefactor to punish him publicly, and to risk going to jail for it. A dozen such episodes, and the career of any judge would be ruined and his heart broken, even though the jails bulged with his critics. He could not maintain his air of aloof dignity on the bench; even his catchpolls would snicker at him behind their hands, especially if he showed a cauliflower ear, a black eye or a scar over his bald head. Moreover, soon or late some citizen who had at him would be acquitted by a petit jury, and then, obviously, he would have to retire. It might be provided by law, indeed, that he should be compelled to retire in that case—that an acquittal would automatically vacate the office of the offending jobholder.
[The following in not part of the original article above.]
crim. con. “Criminal conversation”, a synonym for adultery.
Ipso facto. “By the fact (or act) itself”.
Malum in se. “wrong in itself”, i.e. inherently wrong; cf. malum prohibitum.
Malum prohibitum. “wrong because prohibited”; cf. malum in se.