The Incapacity of the Judiciary
537
that they wilfully disregard the rights of individuals; that they are guilty of
lish style and in logical and lawyer-like reason; that local and minor judges are
excessive zeal; that they are of un
subject to insidious political influences;
due temper; that they have too great regard for their personal friends; that they are susceptible to outside influ
that the character and calibre of minor judges is deplorable, and that the minor justices are unfit.
ences; that they misconceive their function; that they are partial to
"Now it must not be understood that these complaints all come from one 10
certain
notably
cality, or that many of them were
large corporate and financial interests;
made of the judiciary of any one state, or that in general they were considered to apply to all of the judiciary of a locality, or that all of them are of equal weight lection and importance, of all the but specific the sifting complaints and col. re
classes of litigants,
that they are under the control of leg islators or politicians, or are influenced by political considerations; that they do not command respect or confidence; that they are inferior or second-rate men or of a low order of ability; that they are not the best lawyers, nor lawyers of the highest standing; that the best mem
bers of the profession will not take judicial position; that they are physi cally feeble; that they are intellectually weak;
that they are ignorant of the
procedure of their courts; that they de part from it; that they decide individual cases and not the law; that they are not
well seasoned; that they have not the judicial temperament;
that they lack
robust courage and independence; that the elective judiciary is not satisfactory; that they abuse the poor; that they pay too great heed to the technicalities of procedure; that they are weak in grasp ing and holding to legal principle and for that reason their decisions are often
conflicting with each other and most un satisfactory in that they give poor rea sons for a correct decision; that it is a common remark that you cannot tell what the next decision of the court on the same point is going to be, and the case law is in a chaotic state; that they decide cases justly enough, but their opinions are written with such a feeble grasp of legal principle that one cannot extract any
rule of law from them (and this of a su preme court); that the opinions show a lamentable feebleness both in Eng
sulted in this rather horrible display of shortcomings among members of the ju diciary.
Generally speaking the judici
ary is elective, and these are the kind of men whom, it seems, the people have
elected as judges. It cannot be said that these faults characterize the entire judi cial system of any single commonwealth, they merely exist within it, and are a part of the machinery of justice with which is lodged the power to punish for contempt and to which is due the tradi tional respect for the ministers of the law, which we give to or withhold as we
please from the executive or legislators but must perforce yield to the judiciary and their decrees. "It lightens the darkness of this dis mal picture to know that from Mass achusetts comes the assurance that the judiciary are of absolute and unques
tioned integrity, and of the highest intel ligence and judicial ability; that from Indiana, though every voter, however
ignorant, has the constitutional right to practise law, comes the statement that no canons of judicial ethics are necessary, and that Indiana has no better citizens than her judges-that they are honorable and intelligent and have the confidence of the bar; that in New Hampshire there is no criticism of
