AUTOCRACY IN CONTEMPT
CASES
From The Progressive
-x
To have a charge for contempt
of court passed upon by the
same judge who complains of
contempt is a practice which is
repugnant to the American sense
of decency and fair play. Senat
or Vandenburg of Michigan has
introduced a measure in the
United States Senate which
automatically transfers a hear
ing in a contempt proceeding to
a judge other than the one
against whom the contempt is
alleged.
Professor Felix Frankfurter of
Harvard is one of the strong fig
ures in American life who has
constantly opposed the old prac
tice in our courts. Writing to
Senator Vandenberg, Professor
Frankfurter says:
School of Law, Harvard
University,
. .Cambridge, Mass., Jan. 29, 1930
My Dear Senator Vandenberg:
T venture to express the hope
that your proposal for removing
one of the abuses in the existing
procedure for the trial of crim
inal contempt in the federal
courts (S. 1726) will receive early
and favorable attention from
Congress.
To have a charge for contempt
of court passed upon by the same
judge who complains of con
tempt is to violate the instinctive
fueling in men against being
judged by one’s accuser. It vio
lates the basic conception of law
as the exercise of a wholly im
partial judgment The inherent
danger of exercising the double
action of being an accusing
judge and a judging judge has
been decisively put in a single
sentence by the present chief
jusrice.
“The delicacy there is in the
judge’s deciding whether an at
tack upon his own judicial ac
tion is mere criticism or real ob
struction, and the possibility
that impulse may incline his
view to personal vindication, are
manifest.” (Craig v Hecht, 263
U. S. 255, 279 (1923).
Few judges would want to be
placed in such an ambiguous
position, and no headstrong or
self-righteous judge should be
allowed to have this power. Your
bill rightly relies on the prece- j
dent now furnished by section
21 of the Judicial Code in regard
to “personal b’'p? or prejudice”
for the automatic transference;
of a hearing in contempt pro
ceedings bfore a judge other'
than the one against whom the
contempt is alleged.
The reign of law rests ulti- j
mately upon public confidence
in the impartiality of the judi-l
ciary. The inner rectitude of
judges will not in itself secure
::
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confidence in their impartiality.
There must be an outward ap
pearance oi fairness, and that
j outward appearance is lacking
when the accuser becomes a
judge in his own case. This is a
fact of human experience which
is as applicable to judges as it is
; to other fallible mortals.
Your bill is a measure which
i there can hardly be reasonable
| opposition It therefore ought
not to be tied up with legislation
raising mo:e controversial ques
tions, such as many problems
arising in connection with the
use of the injunction in the fed
eral coiulS, and I hope very
'much that y u will persist in
pressing your bill to passage.
Faithfully yours,
.Felix Frankfurter,
Those who ere fighting for
equality in the administration
of justice hope that Senator!
Vandenberg’s measure will be
given favorable consideration by
congress and by the president.
-x
MASS VOTING AS VIEWED BY
GOVERNOR AL SMITH
-x
So much has been said by the
Democratic pre^s about mass
■voting in Alaska that we are glad
to publish what their recent can
didate for the Presidency says
I about that subject. The follow
ing is taken from Mr. Smith’s
| article in the Saturday Evening
Post of recent date:
“Curiosity”
Curiosity and suspicion about
the election district in which I
was bom had been excited in
the minds of the men around
the Republican state headquar
ters because Governor Whitman
received only two votes there,
while I received three hundred
and eighty-seven. One attache
of the Republican headquarters
not familiar with the law declar
ed it to be an impossibility unless
the appointed representatives of
the Republican Party at that
particular polling place voted
against their own candidate,
they believed that to have been
qune umiK.eiy.
The Republican leader of the
district was summoned to head
quarters, and he cleared the at
mosphere in a moment when he
stated that it was impossible to
find eight Republicans in that
district willing to man the polls
igainst me, and that all the Re
publican election officials in that
district, in accordance with the
law, were imported into it from!
other districts.
I sent for the Democratic Cap
tain of the district and spoke to
mm about the result in his dis
trict. His quick reply was:“They
can take the ballot boxes, open
Tiem up and do anything they
like to them. That result is hon- 1
tst and strictly on the level. I
am not concerned about the bal
lat boxes, but I would like to
know who the two people were
that voted against you, and I
will find out in less than a week.’
Three nights later he reported
to me that one of the two was a
man who believed that I could
have assisted his son to a posi
tion in the Police Department
and had refused to do so. He vot
ed against me. The other ballot
was cast against me by mistake.
A woman in Cherry Street who
went to school with me discover
ed, upon looking at a sample bal
lot, three nights after election,
that she had put the cross mark
in the wrong place and came up
to explain it to the captain of
the district. Far from fraud, I
lost one vote through error and
if the man had been asquainted
with the full facts with regard to
his son the decision in that elec
tion would have been unanimous.
Every boy can teach a man,
whereas he must be a man who
can teach a boy.—Thomas Fuller.
Indecision is the death of a
good many ideas.
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