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Some Features Of The Law
by
Why should twelve able-bodied jurymen, with their oaths to guide them and the law to back, submit to the dictation of one small judge armed with nothing better than an insolent assumption of authority? A judge has not the moral right to order a jury to acquit, the utmost that he can rightly do is to point out what state of the law or facts may seem to him unfavorable to conviction. If the jurors, holding a different view, persist in conviction the accused will have grounds, doubtless, for a new trial. But under no circumstances is a judge justified in requiring a responsible human being to disregard the solemn obligation of an oath.
The public ear is dowered with rather more than just enough of clotted nonsense about “attacks upon the dignity of the Bench,” “bringing the judiciary into disrepute” and the rueful rest of it. I crave leave to remind the solicitudinarians sounding these loud alarums on their several larynges that by persons of understanding men are respected, not for what they do, but for what they are, and that one public functionary will stand as high in their esteem as another if as high in character. The dignity of a wise and righteous judge needs not the artificial safeguarding which is a heritage of the old days when if dissent found a tongue the public executioner cut it out. The Bench will be sufficiently respected when it is no longer a place where dullards dream and rogues rob–when its personnel is no longer chosen in the back-rooms of tipple-shops, forced upon yawning conventions and confirmed by the votes of men who neither know what the candidates are nor what they should be. With the gang that we have and under our system must continue to have, respect is out of the question and ought to be. They are entitled to just as much of its forms and observances as are needful to maintenance of order in their courts and fortification of their lawful power–no more. As to their silence under criticism, that is as they please. No body but themselves is holding their tongues.
II.
A law under which the unsuccessful respondent in a divorce proceeding may be forbidden to marry again during the life of the successful complainant, the latter being subject to no such disability, is infamous infinitely. If the disability is intended as a punishment it is exceptional among legal punishments in that it is inflicted without conviction, trial or arraignment, the divorce proceedings being quite another and different matter. It is exceptional in that the period of its continuance, and therefore the degree of its severity, are indeterminate; they are dependent on no limiting statute, and on neither the will of the power inflicting nor the conduct of the person suffering.
To sentence a person to a punishment that is to be mild or severe according to chance or–which is even worse–circumstance, which but one person, and that person not officially connected with administration of justice, can but partly control, is a monstrous perversion of the main principles that are supposed to underlie the laws.
In “the case at bar” it can be nothing to the woman–possibly herself remarried–whether the man remarries or not; that is, can affect only her feelings, and only such of them as are least creditable to her. Yet her self-interest is enlisted against him to do him incessant disservice. By merely caring for her health she increases the sharpness of his punishment–for punishment it is if he feels it such; every hour that she wrests from death is added to his “term.” The expediency of preventing a man from marrying, without having the power to prevent him from making his marriage desirable in the interest of the public and vital to that of some woman, is not discussable here. If a man is ever justified in poisoning a woman who is no longer his wife it is when, by way of making him miserable, the State has given him, or he supposes it to have given him, a direct and distinct interest in her death.