1. Upon the filing of an affidavit of a party to a case in the
district court, in conformity with Jud.Code § 21, averring the
affiant's belief that the judge before whom the case is to be tried
has a personal
Page 255 U. S. 23
bias or prejudice against him, and stating facts and reasons,
substantial in character and which, if true, fairly establish a
mental attitude of the judge against the affiant which may prevent
impartiality of judgment, it becomes the duty of the judge to
retire from the case. P.
255 U. S.
30.
2. The judge may pass upon the sufficiency of the affidavit, but
not upon the truth or falsity of the acts alleged.
Id.
3. The facts may be alleged upon the affiant's information and
belief. P.
255 U. S.
34.
4.
Held that the affidavit filed in this case was
sufficient.
The case is stated in the opinion.
Page 255 U. S. 26
MR. JUSTICE McKENNA delivered the opinion of the Court.
Section 21 of the Judicial Code provides as follows:
"Whenever a party to any action or proceeding, civil or
criminal, shall make and file an affidavit that the judge before
whom the action or proceeding is to be tried or heard has a
personal bias or prejudice either against him or in favor of any
opposite party to the suit, such judge
Page 255 U. S. 27
shall proceed no further therein, but another judge shall be
designated in the manner prescribed in the section last preceding,
or chosen in the manner prescribed in section twenty-three, to hear
such matter. Every such affidavit shall state the facts and the
reasons for the belief that such bias or prejudice exists. . . . No
party shall be entitled in any case to file more than one such
affidavit, and no such affidavit shall be filed unless accompanied
by a certificate of counsel of record that such affidavit and
application are made in good faith. The same proceedings shall be
had when the presiding judge shall file with the clerk of the court
a certificate that he deems himself unable for any reason to
preside with absolute impartiality in the pending suit or
action."
February 2, 1918, there was returned into the District Court of
the United States for the Northern District of Illinois an
indictment against plaintiffs in error (it will be convenient to
refer to them as defendants) charging them with a violation of the
Act of Congress of June 15, 1917, known as the Espionage Act (40
Stat. 217, c. 30).
* In due time, they
invoked § 21 by filing an affidavit charging Judge Landis, who was
to preside at the trial, with personal bias and prejudice against
them, and moved for the assignment of another judge to preside at
the trial. The motion was denied, and, upon the trial, defendants
were convicted, and each sentenced to 20 years' imprisonment. From
the judgment and sentence they took
Page 255 U. S. 28
the case to the United States Circuit Court of Appeals for the
Seventh Circuit. That court, reciting that certain questions of law
under § 21 have arisen upon the affidavit and motion upon which the
court is in doubt and upon which it desires the advice and
instructions of this Court, certifies questions of the sufficiency
of the affidavit and the duty of the judge thereunder, and also
certifies the affidavit and other proceedings upon such motion.
The affidavit, omitting formal and unnecessary parts, is as
follows:
Petitioners (defendants) represent
"that they jointly and severally verily believe that his honor
Judge Kenesaw Mountain Landis has a personal bias and prejudice
against certain of the defendants, to-wit, Victor L. Berger,
William F. Kruse and Adolph Germer, defendants in this cause, and
impleaded with J. Louis Engdahl and Irwin St. John Tucker,
defendants in this case. That the grounds for the petitioners'
beliefs are the following facts: that said Adolph Germer was born
in Prussia, a state or province of Germany; that Victor L. Berger
was born in Rehback, Austria; that William F. Kruse is of immediate
German extraction; that said Judge Landis is prejudiced and biased
against said defendants because of their nativity, and in support
thereof the defendants allege that, on information and belief, on
or about the 1st day of November, said Judge Landis said in
substance: 'If anybody has said anything worse about the Germans
than I have, I would like to know it so I can use it.' And,
referring to a German who was charged with stating that 'Germany
had money and plenty of men and wait and see what she is going to
do to the United States,' Judge Landis said in substance:"
"One must have a very judicial mind indeed not to be prejudiced
against the German-Americans in this country. Their hearts are
reeking with disloyalty. This defendant is the kind of a man that
spreads this kind of propaganda, and it has been spread until it
has affected practically all the Germans
Page 255 U. S. 29
in this country. This same kind of excuse of the defendant
offering to protect the German people is the same kind of excuse
offered by the pacifists in this country, who are against the
United States and have the interests of the enemy at heart by
defending that thing they call the Kaiser and his darling people.
You are the same kind of a man that comes over to this country from
Germany to get away from the Kaiser and war. You have become a
citizen of this country and lived here as such, and now, when this
country is at war with Germany, you seek to undermine the country
which gave you protection. You are of the same mind that
practically all the German-Americans are in this country, and you
call yourselves German-Americans. Your hearts are reeking with
disloyalty. I know a safe-blower, he is a friend of mine, who is
making a good soldier in France. He was a bank robber for nine
years, that was his business in peace time, and now he is a good
soldier, and as between him and this defendant, I prefer the
safeblower."
"These defendants further aver that they have at no time
defended the Kaiser, but, on the contrary, they have been opposed
to an autocracy in Germany and every other country; that Victor L.
Berger, defendant herein, editor of the Milwaukee Leader, a
Socialist daily paper, Adolph Germer, national secretary of the
Socialist party, William F. Kruse, editor of the Young Socialists
Magazine, a Socialist publication, and J. Louis Engdahl disapproved
the entrance of the United States into this war."
"Your petitioners further aver that the defendants Tucker and
Engdahl were born in the United States, and were not born in enemy
countries, and are not immediate descendants of persons born in
enemy countries, but verily believe, because they are impleaded
with Berger, Kruse, and Germer, that they as well as Berger,
Germer, and Kruse cannot receive a fair and impartial trial, and
that the prejudice of said Judge Landis against said
Page 255 U. S. 30
Berger, Germer, and Kruse would prejudice the defense of said
defendants Tucker and Engdahl impleaded in this case."
The affidavit was accompanied by the certificate of Seymour
Stedman, attorney for defendants, that the affidavit and
application were made in good faith.
The questions certified are as follows:
(1) Is the aforesaid affidavit of prejudice sufficient to invoke
the operation of the act which provides for the filing of affidavit
of prejudice of a judge?
(2) Did said Judge Landis have the lawful right to pass upon the
sufficiency of the said affidavit of his prejudice, or upon any
question arising out of the filing of said affidavit?
(3) Upon the filing of the said affidavit of prejudice of said
Judge Landis, did the said judge have lawful right and power to
preside as judge on the trial of plaintiffs in error upon said
indictment?
The basis of the question is § 21, and the primary question
under it is the duty and power of the judge, whether the filing of
an affidavit of personal bias or prejudice compels his retirement
from the case, or whether he can exercise a judgment upon the facts
affirmed and determine his qualification against them and the
belief based upon them?
These alternatives present the contentions in the case.
Defendants contend for the first, the United States contends for
the second. The assertion of defendants is that the mandate of the
section is not subject to the discretion or judgment of the judge.
The assertion of the United States is that the motion and its
supporting affidavit, like other motions and their supporting
evidence, are submitted for decision and the exercise of the
judicial judgment upon them. In other words, the action of the
affidavit is not "automatic," to quote the Solicitor General, but
depends upon the substance and merit of its reasons and the truth
of its facts, and upon both the judge has
Page 255 U. S. 31
jurisdiction to pass. The issue is therefore precise, and, while
not in broad compass, is practically of first impression as now
presented.
In
Glasgow v. Moyer, 225 U. S. 420, the
section was referred to but not passed upon. In
Ex parte
American Steel Barrel Co., 230 U. S. 35, the
phase of the section presented here was not presented. There,
proceedings in bankruptcy had progressed to a decree of
adjudication, and the judge who had conducted them was charged by
certain creditors with bias and prejudice based on his rulings in
the case. Such use of § 21 was disapproved. "It was never
intended," it was said,
"to enable a discontented litigant to oust a judge because of
adverse rulings made, for such rulings are reviewable otherwise,
but to prevent his future action in the pending cause."
As pertinent to the comment and to the meaning of § 21, we may
say that Judge Chatfield, against whom the affidavit was directed,
said that he felt that the intention of § 21 was "to cause a
transfer of the case without reference to the merits of the charge
of bias," and he did so immediately, in order, as he said, "that
the application of the creditors" might "be considered as speedily
as possible by such judge as" might "be designated." Another judge
was designated, and, to restrain action by the latter and vacate
the orders that he had made and to command Judge Chatfield to
resume jurisdiction, mandamus was sought. It was denied. The case
establishes that the bias or prejudice which can be urged against a
judge must be based upon something other than rulings in the
case.
The cases at circuit in which § 21 was considered have not much
guidance. They, however, deserve attention.
Ex parte N. K.
Fairbank Co., 194 F. 978, may be considered as expressing
power in the presiding judge to pass upon the sufficiency of the
facts affirmed. In
Ex parte Glasgow, 195 F. 780, the
question came up
Page 255 U. S. 32
upon an application for a writ of habeas corpus and it appeared
that the affidavit of bias was not filed until after trial of the
case, and when the court was about to pass upon a motion in arrest
of judgment and new trial. It was held that § 21 was not applicable
at such stage of the proceedings.
Henry v. Speer, 201 F.
869, was a petition for mandamus to require an affidavit of bias
against District Judge Speer to be certified to the senior circuit
judge that the latter might determine its sufficiency, and to
restrain Judge Speer from exercising jurisdiction of the case. The
writ was refused on the ground that the affidavit did not conform
to § 21 in that it omitted to charge "personal" bias, a charge of
such bias, it was held, being a necessary condition. The court
(Circuit Court of Appeals for the Fifth Circuit) by Judge Meek,
said:
"Upon the making and filing by a party of an affidavit under the
provisions of § 21, of necessity there is imposed upon the judge
the duty of examining the affidavit to determine whether or not it
is the affidavit specified and required by the statute and to
determine its legal sufficiency. If he finds it to be legally
sufficient, then he has no other or further duty to perform than
that prescribed in § 20 of the Judicial Code. He is relieved from
the delicate and trying duty of deciding upon the question of his
own disqualification."
This comment sustains defendants' view of § 21 and marks a
distinction between determining the legal sufficiency of the
affidavit and passing upon the truth of its statements, a
distinction to which we shall presently advert.
The cases (one being excepted), to the extent they go, militate
against the contention of the government, and they have
confirmation in the words of the section. Their declaration is
that
"whenever a party to any action or proceeding, civil or
criminal, shall make and file an affidavit that the judge before
whom the action or proceeding is to be tried or heard has a
personal bias or prejudice
Page 255 U. S. 33
either against him or in favor of any opposite party to the
suit, such judge shall proceed no further therein, but another
judge shall be designated . . . to hear such matter."
There is no ambiguity in the declaration, and seemingly nothing
upon which construction can be exerted -- nothing to qualify or
temper its words or effect. It is clear in its permission, and
direction. It permits an affidavit of personal bias or prejudice to
be filed, and, upon its filing, if it be accompanied by certificate
of counsel, directs an immediate cessation of action by the judge
whose bias or prejudice is averred, and in his stead the
designation of another judge. And there is purpose in the
conjunction; its elements are complements of each other. The
exclusion of one judge is emphasized by the requirement of the
designation of another.
But it is said that there is modification of the absolutism of
the quoted declaration in the succeeding provision that the
"affidavit shall state the facts and reasons for the belief" of the
existence of the bias or prejudice. It is urged that the purpose of
the requirement is to submit the reality and sufficiency of the
facts to the judgment of the judge and their support of the
averment or belief of the affiant. It is, in effect, urged that the
requirement can have no other purpose, that it is idle else, giving
an automatism to the affidavit which overrides everything. But this
is a misunderstanding of the requirement. It has other and less
extensive use, as pointed out by Judge Meek in
Henry v. Speer,
supra. It is a precaution against abuse, removes the averments
and belief from the irresponsibility of unsupported opinion, and
adds to the certificate of counsel the supplementary aid of the
penalties attached to perjury. Nor do we think that this view gives
room for frivolous affidavits. Of course, the reasons and facts for
the belief the litigant entertains are an essential part of the
affidavit, and must give fair support to the charge of a bent of
mind that may prevent or impede
Page 255 U. S. 34
impartiality of judgment. The affidavit of defendants has that
character. The facts and reasons it states are not frivolous or
fanciful, but substantial and formidable, and they have relation to
the attitude of Judge Landis' mind toward defendants.
It is, however, said that the assertion and the facts are stated
on information and belief, and that hence the affidavit is wholly
insufficient, § 21 requiring facts to be stated, "and not merely
belief." The contention is that "the court is expected to act on
the affidavit itself," and that therefore "the act of Congress
requires facts -- not opinions, beliefs, rumors or gossip."
Ex
parte American Steel Barrel Company, supra, is cited for the
contention. We do not know what counsel means by "opinions,
beliefs, rumors or gossip." The belief of a party the section makes
of concern, and if opinion be nearer to or farther from persuasion
than belief, both are of influence, and universally regarded as of
influence in the affairs of men and determinative of their conduct,
and it is not strange that § 21 should so regard them.
We may concede that § 21 is not fulfilled by the assertion of
"rumors of gossip," but such disparagement cannot be applied to the
affidavit in this case. Its statement has definite time and place
and character, and the value of averments on information and belief
in the procedure of the law is recognized. To refuse their
application to § 21 would be arbitrary, and make its remedy
unavailable in many, if not in most, cases. The section permits
only the affidavit of a party, and
Ex parte American Steel
Barrel Co., supra, decides that it must be based upon facts
antedating the trial, not those occurring during the trial. In the
present case, the information was of a definite incident, and its
time and place were given. Besides, it cannot be the assumption of
§ 21 that the bias or prejudice of a judge in a particular case
would be known by everybody, and necessarily therefore to deny to a
party
Page 255 U. S. 35
the use of information received from others is to deny to him at
times the benefit of the section.
We are of opinion, therefore, that an affidavit upon information
and belief satisfies the section, and that, upon its filing, if it
show the objectionable inclination or disposition of the judge
which we have said is an essential condition, it is his duty to
"proceed no further" in the case. And in this there is no serious
detriment to the administration of justice, nor inconvenience worth
of mention, for of what concern is it to a judge to preside in a
particular case, of what concern to other parties to have him so
preside, and any serious delay of trial is avoided by the
requirement that the affidavit must be filed not less than ten days
before the commencement of the term.
Our interpretation of § 21 has therefore no deterring
consequences, and we cannot relieve from its imperative conditions
upon a dread or prophecy that they may be abusively used. They can
only be so used by making a false affidavit, and a charge of and
the penalties of perjury restrain from that -- perjury in him who
makes the affidavit; connivance therein of counsel, thereby
subjecting him to disbarment. And upon what inducement and for what
achievement -- no other than trying the case by one judge rather
than another, neither party or counsel having voice or influence in
the designation of that other, and the section, in its care,
permits but "one such affidavit."
But if we concede, out of deference to judgments that we
respect, a foundation for the dread, a possibility to the prophecy,
we must conclude Congress was aware of them, and considered that
there were countervailing benefits. At any rate, we can only deal
with it as it is expressed, and enforce it according to its
expressions. Nor is it our function to approve or disapprove it;
but we may say that its solicitude is that the tribunals of the
Page 255 U. S. 36
country shall not only be impartial in the controversies
submitted to them, but shall give assurance that they are
impartial, free, to use the words of the section, from any "bias or
prejudice" that might disturb the normal course of impartial
judgment. And to accomplish this end, the section withdraws from
the presiding judge a decision upon the truth of the matters
alleged. Its explicit declaration is that, upon the making and
filing of the affidavit, the judge against whom it is directed
"shall proceed no further therein, but another judge shall be
designated in the manner prescribed in . . . section twenty-three
to hear such matter." And the reason is easy to divine. To commit
to the judge a decision upon the truth of the facts gives chance
for the evil against which the section is directed. The remedy by
appeal is inadequate. It comes after the trial, and, if prejudice
exist, it has worked its evil and a judgment of it in a reviewing
tribunal is precarious. It goes there fortified by presumptions,
and nothing can be more elusive of estimate or decision than a
disposition of a mind in which there is a personal ingredient.
After overruling the motion of plaintiffs for his displacement,
Judge Landis permitted to be filed a stenographic report of the
incident and language upon which the motion was based. We, however,
have not discussed it, because, under our interpretation of § 21,
it is excluded from consideration.
We come, then, to the questions certified, and to the first we
answer, Yes -- that is, that the affidavit of prejudice is
sufficient to invoke the operation of the act. To the second, we
answer that, to the extent we have indicated, Judge Landis had a
lawful right to pass upon the sufficiency of the affidavit. To the
third, we answer, No -- that is, that Judge Landis had no lawful
right or power to preside as judge on the trial of defendants upon
the indictment.
So ordered.
Page 255 U. S. 37
*
"Whoever, when the United States is at war, shall willfully make
or convey false reports or false statements with intent to
interfere with the operation or success of the military or naval
forces of the United States or to promote the success of its
enemies, and whoever, when the United States is at war, shall
willfully cause or attempt to cause insubordination, disloyalty,
mutiny, or refusal of duty in the military or naval forces of the
United States, or shall willfully obstruct the recruiting or
enlistment service of the United States, shall be punished . .
."
MR. JUSTICE DAY, dissenting.
As this case is to settle the practice for this and similar
cases which may arise in the federal courts, and as the opinion
does not consider some aspects of the record, I venture to state
the reasons which impel me to reach a different conclusion than
that announced by the majority.
An examination shows that statutes exist in a number of states
covering the subject under consideration. These statutes vary in
character and in the requirements for establishing the bias or
prejudice of the judge which may require him to abstain from
sitting at the trial of a particular case. In some of them, an
affidavit of belief of prejudice, or that a fair trial cannot be
had before a particular judge, is sufficient to disqualify him.
Other statutes require supporting affidavits and the certificate of
counsel, and provide for a hearing on the matter of
disqualification. In some states, the matter is required to be
heard before another judge.
The federal statute now under consideration had its origin in an
amendment to the Judicial Code introduced in the House of
Representatives when the adoption of the Code was under
consideration. As adopted in the House, the affidavit was required
to set forth the reasons for the belief that personal bias or
prejudice existed against the party, or in favor of the opposite
party to the suit. (
See Cong.Rec., vol. 46, part 3, p.
2626
et seq.)
When the bill came before the Senate, the section was amended so
as to require the facts and the reasons for the belief that bias or
prejudice existed to be set forth, and the affidavit is required to
be accompanied by a certificate of counsel of record that it and
the application are made in good faith. (Sen.Doc. No. 848, 61st
Congress, 3d Session.) It is thus apparent that the section, in the
form in which it finally became part of the Judicial Code, intended
that the bias or prejudice which should disqualify
Page 255 U. S. 38
a judge should be personal against the objecting party, and that
it should be established by an affidavit which should set forth the
reasons and facts upon which the charge of bias or prejudice was
based. The evident purpose of this requirement was to require a
showing of such reasons and facts as would prevent imposition upon
the court, and establish the propriety of the affidavit of
disqualification. "It is not sufficient," said the late Mr. Justice
Brewer, when a member of the Supreme Court of Kansas, in
City
of Emporia v. Volmer, 12 Kan. 627,
"that a
prima facie case only be shown, such a case as
would require the sustaining of a challenge to a juror. It must be
strong enough to overthrow the presumption in favor of the trial
judge's integrity, and of the clearness of his perceptions."
I accept the opinion of the majority that the judge, under the
requirements of this statute, may pass upon the sufficiency of the
affidavit, subject to a review of his decision by an appellate
court, and if it be sufficient to show personal bias and prejudice,
the judge should not try the case. But I am unable to agree that,
in cases of the character now under consideration, the statement of
the affidavit, however unfounded, must be accepted by the judge as
a sufficient reason for his disqualification, leaving the
vindication of the integrity and independence of the judge to the
uncertainties and inadequacy of a prosecution for perjury if it
should appear that the affidavit contains known misstatements.
Notwithstanding the filing of the affidavit purporting
compliance with the statute, the court has a right to use all
reasonable means to protect itself from imposition.
Davis v.
Rivers, 49 Ia. 435. The personal bias or prejudice of the
judge against the defendants in this case is said to be established
by language imputed to the judge as his utterance concerning the
attitude of the German people during the progress of the war.
Page 255 U. S. 39
The affidavit filed contained a statement of alleged language of
the judge concerning a German who was "charged" with making the
statements set forth. Upon receiving the affidavit, the judge at
once inquired of counsel whether the language ascribed to him was
not in fact uttered in connection with the disposition of the case
of United States against one Weissensell in sentencing him after
conviction by a jury of a violation of the Espionage Act in the
same court. Counsel informed the judge that such was the fact. The
judge asked counsel for Berger whether he had made any effort to
ascertain the accuracy of the statement alleged to have been made
by the court. Counsel replied that he had not. It would seem
incredible that any judge could have made such statements
concerning a defendant not yet tried in his court, in advance of
trial and upon a mere charge of an offense. Counsel in open court
admitted that the offending language was used in passing sentence
after conviction in Weissensell's case.
Moreover, upon the affidavit being filed, and after this
admission of counsel, the district attorney offered in evidence a
transcript of what took place and what was in fact said upon the
sentencing of Weissensell. The judge permitted this stenographic
report, sworn to by an experienced stenographer, who made it, to be
a true and correct report of the statements made and the
proceedings had, to be put into the record, saying that the truth
should be shown of record in connection with the falsity, although
he was of opinion that the facts stated in the affidavit failed to
establish bias or prejudice against the defendants which would
disqualify him from sitting at the trial.
This stenographic report, sent up with the certificate and made
part of it, and which there is no reason to believe fails to state
accurately what took place, is in marked contrast with statements
of the affidavit which the defendants made when seeking the
disqualification of the
Page 255 U. S. 40
judge. It shows, as we have already stated, that the utterances
of the judge were after conviction of Weissensell, and were made
when he was passing sentence. It shows that the statement of the
judge concerning German-Americans was quite different from that
stated in the affidavit, and referred to the type of man who had
been convicted and was before him for sentence. The judge, in
speaking of the convicted defendant, said that he was of the type
of man who branded almost the whole American-German population, and
that one German-American, such as the defendant, talking such
stuff, did more damage to his people than thousands of them could
overcome by being good and loyal citizens, and that he, the
defendant, was an illustration of the occasional American of German
birth whose conduct had done so much to damn the whole 10,000,000
in America. While this language might have been more temperate,
there does not appear to be in it anything fairly establishing that
the judge directed his observations at the German people in
general, but rather that his remarks were aimed at one convicted,
as was the defendant, of violation of law.
As I understand the opinion of the Court, notwithstanding the
admissions of counsel, and the sworn stenographic report of what
took place, the affidavit must be accepted, and if it discloses
matters which, if true, would tend to establish bias and prejudice,
the same must be given effect and the judge be disqualified. It
does not seem to me that this conclusion comports with the
requirements of the statute that reasons and facts must be set
forth for the consideration of the judge. It places the federal
courts at the mercy of defendants who are willing to make
affidavits as to what took place at previous trials in the court,
which the knowledge of the judge, and the uncontradicted testimony
of an official report may show to be untrue, and in many districts
may greatly retard the trial of criminal causes.
Page 255 U. S. 41
While, as I have said, in sentencing Weissensell, the judge
might have been more temperate in his observations, I am unable to
find that the statements of the affidavit, when read in connection
with the admissions of counsel and the established facts as to what
took place as gathered from the stenographic report, showed such
evidence of personal bias or prejudice against the defendants as
required the judge upon the mere filing of this affidavit to permit
its misleading statements to be placed of record, and to proceed no
further with the case.
It does not appear that the trial judge had any acquaintance
with any of the defendants, only one of whom was of German birth,
or that he had any such bias or prejudice against any of them as
would prevent him from fairly and impartially conducting the trial.
To permit an
ex parte affidavit to become in effect a
final adjudication of the disqualification of a judge when facts
are shown such as are here established seems to me to be fraught
with much danger to the independent discharge of duties by federal
judges, and to open a door to the abuse of the privilege which is
intended to be conferred by the statute in question.
In my judgment, the questions propounded, in the light of the
disclosures of this record, should be answered -- as to the first,
that the affidavit of prejudice, when read in the light of the
other disclosures in the record, was insufficient to meet the
requirements of the act; as to the second, that while the judge
might have called upon another judge to pass upon the sufficiency
of the affidavit, he had jurisdiction to pass upon it himself if he
saw fit to do so; as to the third, that the mere filing of the
affidavit did not require the judge to proceed no further with the
trial of the defendants upon the accusation against them.
MR. JUSTICE PITNEY concurs in this dissent.
Page 255 U. S. 42
MR. JUSTICE McREYNOLDS, dissenting.
I am unable to follow the reasoning of the opinion approved by
the majority, or to feel fairly certain of its scope and
consequence. If an admitted anarchist, charged with murder, should
affirm an existing prejudice against himself and specify that the
judge had made certain depreciatory remarks concerning all
anarchists, what would be the result? Suppose official stenographic
notes or other clear evidence should demonstrate the falsity of an
affidavit, would it be necessary for the judge to retire? And what
should be done if dreams or visions were the basis of an alleged
belief?
The conclusion announced gives effect to the statute which seems
unwarranted by its terms and beyond the probable intent of
Congress. Bias and prejudice are synonymous words, and denote "an
opinion or leaning adverse to anything without just grounds or
before sufficient knowledge" -- a state of mind. The statute
relates only to adverse opinion or leaning towards an individual,
and has no application to the appraisement of a class --
e.g., revolutionists, assassins, traitors.
To claim personal bias without more is insufficient; "the facts
and the reasons for the belief that such bias or prejudice exists"
must be set out, and plainly, I think, this must be done in order
that the judge or any reviewing tribunal may determine whether they
suffice to support honest belief in the disqualifying state of
mind.
Defendants' affidavit discloses no adequate ground for believing
that personal feeling existed against any one of them. The
indicated prejudice was towards certain malevolents from Germany, a
country then engaged in hunnish warfare and notoriously encouraged
by many of its natives, who unhappily, had obtained citizenship
here. The words attributed to the judge (I do not credit the
affidavit's accuracy) may be fairly construed as showing
Page 255 U. S. 43
only deep detestation for all persons of German extraction who
were at that time wickedly abusing privileges granted by our
indulgent laws.
Of course, no judge should preside if he entertains such actual
personal prejudice towards any party and to this obvious
disqualification. Congress added honestly entertained belief of
such prejudice when based upon fairly adequate facts and
circumstances. Intense dislike of a class does not render the judge
incapable of administering complete justice to one of its members.
A public officer who entertained no aversion towards disloyal
German immigrants during the late war was simply unfit for his
place. And while "an overspeaking judge is no well tuned cymbal,"
neither is an amorphous dummy unspotted by human emotions a
becoming receptacle for judicial power. It was not the purpose of
Congress to empower an unscrupulous defendant seeking escape from
merited punishment to remove a judge solely because he had
emphatically condemned domestic enemies in time of national danger.
The personal concern of the judge in matters of this kind is indeed
small, but the concern of the public is very great.
In my view, the trial judge committed no error when he
considered the affidavit, held it insufficient, and refused to
retire.