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It will not do to say that an attorney in defending a client is not compelled to cheat and lie. What kind of defense could be made by any one who did not profess belief in the innocence of his client?–did not affirm it in the most serious and impressive way?–did not lie? How would it profit the defense to be conducted by one who would not meet the prosecution’s grave asseverations of belief in the prisoner’s guilt by equally grave assurances of faith in his innocence? And in point of fact, when was counsel for the defense ever known to forego the advantage of that solemn falsehood? If I am asked what would become of accused persons if they had to prove their innocence to the lawyers before making a defense in court, I reply that I do not know; and in my turn I ask: What would become of Humpty Dumpty if all the king’s horses and all the king’s men were an isosceles triangle?

It all amounts to this, that lawyers want clients and are not particular about the kind of clients that they get All this is very ugly work, and a public interest that can not be served without it would better be unserved.

I grant, in short, ’tis better all around
That ambidextrous consciences abound
In courts of law to do the dirty work
That self-respecting scavengers would shirk.
What then? Who serves however clean a plan
By doing dirty work, he is a dirty man.

But in point of fact I do not “grant” any such thing. It is not for the public interest that a rogue have the same freedom of defense as an honest man; it should be a good deal harder for him. His troubles should begin, not when he seeks acquital, but when he seeks counsel. It would be better for the community if he could not obtain the services of a reputable attorney, or any attorney at all. A defense that can not be made without his attorney’s actual knowledge of his guilt should be impossible to him. Nor should he be permitted to remain off the witness stand lest he incriminate himself. It ought to be the aim of the court to let him incriminate himself–to make him do so if his testimony will. In our courts that natural method would serve the ends of justice greatly better than the one that we have. Testimony of the guilty would assist in conviction; that of the innocent would not.

As to the general question of a judge’s right to inflict arbitrary punishment for words that he may be pleased to hold disrespectful to himself or another judge, I do not myself believe that any such right exists; the practice seems to be merely a survival–a heritage from the dark days of irresponsible power, when the scope of judicial authority had no other bounds than fear of the royal gout or indigestion. If in these modern days the same right is to exist it may be necessary to revive the old checks upon it by restoring the throne. In freeing us from the monarchial chain, the coalition of European Powers commonly known in American history as “the valor of our forefathers” stripped us starker than they knew.

Suppose an attorney should find his client’s interests imperiled by a prejudiced or corrupt judge–what is he to do? If he may not make representations to that effect, supporting them with evidence, where evidence is possible and by inference where it is not, what means of protection shall he venture to adopt? If it be urged in objection that judges are never prejudiced nor corrupt I confess that I shall have no answer: the proposition will deprive me of breath.

If contempt is not a crime it should not be punished; if a crime it should be punished as other crimes are punished–by indictment or information, trial by jury if a jury is demanded, with all the safeguards that secure an accused person against judicial blunders and judicial bias. The necessity for these safeguards is even greater in cases of contempt than in others–particularly if the prosecuting witness is to sit in judgment on his own grievance. That should, of course, not be permitted: the trial should take place before another judge.