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gestions of the Committee, adopting the ideas thereof and vouching for them as those of the State Bar Association as a whole.
What has stirred the New York State Bar Association to inaugurate this procedure is doubtless the fact that this country—particularly in the middle and western part thereof-has forged ahead until it has become the most forward-looking nation in the world, with the single exception of Switzerland, and has carried the principles of direct popular sovereignty to great lengths, and bids fair, in the near future, to carry them to still greater lengths. Among the many things calculated to disturb the equanimity and arouse the fears, perhaps, of those backward-looking individuals who are bound by precedent and the traditions of a selfish and sordid past, may be mentioned such legislative acts,-constitutional and statutory,—as child labor laws; corrupt practice acts and primary laws; creation of departments of industry and labor; factory laws; juvenile court acts; laws preventing reversal of causes for mere technical errors or irregularities in law or procedure not affecting the substantial merits; maximum hours of labor; minimum wage laws; railroad commissions and other industrial commissions, with a strong arm and adequate means to bring under and within the laws of the land recalcitrant and avaricious and law-defying corporations and other predatory interests which prey upon the people; the retirement and pensioning of employes; woman suffrage; workmen's compensations acts, and other acts to relieve the oppressed and promote social justice. But no political phenomena of this or any other time is more significant than the wide and rapid spread of the doctrines of the initiative and the referendum in legislative matters, and the recall of officers, including judges, which is now firmly established in at least twenty states, and principally during or since the year 1911, and now exists therein either in state
1 See “Referendum and Initiative in Switzerland,” 185 North Ameriand municipal matters or in municipal matters. It is not so much an abiding faith in the infallibility of the people that has caused this rapid and wide spread of these doctrines, as it is a well-grounded want of faith in legislators -state and municipal,—who are too often the creatures of political bosses and too susceptible to be “influenced” by selfish and greedy corporations, and other corrupt and corrupting interests.
can Review, p. 202.
In 1914 the New York State Bar Association assigned to the Standing Committee for consideration and report, the question of the “recall of judicial decisions” on constitutional questions by permitting the people, by plebiscite, to determine whether the statute involved and pronounced by the court to be invalid because in contravention of the fundamental law, shall become a law under the police power of the state,--a doctrine which was given prominence during the presidential campaign of 1912. The claim has been put forward for this method of procedure that it would preserve judicial independence and open the way for social legislation. There are among students, philosophers, publicists and jurists, alike, those who look upon the proposed procedure for the recall of judicial opinions as highly obnoxious; as a veritable death-blow to the vital principles of eternal right and justice for which we as a nation have struggled so strenuously;3 to the fundamental law,4 which is the keystone to our whole superstructure of liberty, personal independence and social justice. The effect of such a procedure would inevitably be to work an amendment to the constitution in an unconstitutional manner,-by affixing a limitation or an excepton to the fundamental law, at least,--and is equally as repugnant to the genius of our institutions and the ideas and ideals of the American people as was the suggestion of a certain eminent New York City lawyer, Elihu Root, made some years ago, that the constitution of the United States be amended by decision of the Supreme Court of the United States. As the vote of one man on the bench of the United States Supreme Court is sufficient to carry the decision, this suggestion was tantamount to a proposition that the constitution of the United States be amended by one man."
2 Initiative and referendum in 22 states; recall in 10 states; woman suffrage in 12 states; direct primary 37 states; presidential primary in 21 states, etc.
3 In recent times there is very lit. tle, or no, sympathy with the roman. tic concept of the Historic School, according to which law and the principles of legal right come into existence or are formed painlessly, without trouble and without action, much like the growth in the vegetable creation. See Von Jhering's
Struggle for Law (2nd ed.), p. 16; also I Continental Legal History Series, pp. 183, 195-197, 443, 444; I Modern Legal Philosophy Series, pp. 63, 65, 66, 319, 320; II Id., pp. 6, 7, 17, 21, 204 et seq., 254, 375; III Id., pp. 62, 63; IV Id., pp. 27, 118; VII Id., p. 106; X 1d. p. 48; XII Id., pp. 10, 353, 354, 365, 378.
4 See “The Constitution and the People's Liberties," 184 North American Review, p. 508.
"All our laws are legislative, judicial, and doctrinal. The Constitution is the highest form of legis. lative law, the fundamental law up on which all other laws rest and to which they must conform, and it must be preserved in violate, if the state is to be an abiding structure. In the maintenance of the Constitution inviolate there is a constant struggle (see in this connection Von Jhering's Struggle for Law, passim), in which a certain role is reserved for private persons in what would seem to be the special mission of the state. There is much truth in the suggestion that the spirit of the age tends to fashion unto itself a legal art suppler in its theorizingtoo rigid judicial constructions being sufficiently criticised today and a law (as well as an administration of the law) demanded which shall be in closer touch with prac.
The recall of the decision, instead of the recall of the judge, in cases where statutes are held to be in violation of the fundamental law of the land and for that reason void, was brought into prominence and given wide vogue by the advocacy of Theodore Roosevelt during the presidential campaign of 1912, and the principle was carried into the Colorado constitution by a popular vote in that year. Mr. Roosevelt founded his advocacy of the principle upon the mistaken conception that the power and practice of the courts of this country to declare statutes unconstitutional is “unique” and “not permitted elsewere in the world,” claiming to base his views and contentions in this regard upon expressions of the late Professor James Bradley Thayer, of Harvard.'
tical realities, borrowing more from the data of political economy, and approaching more closely to that legal illucidation which, in spite of possible errors, is synonymous with life and unconsciously expresses the strongest practical needs — as it were, 'locating the abiding reality that corresponds to the aspirations of our spirits.'” See VII Modern Legal Philosophy Series, p. 350.
5 When Prof. John H. Wigmore called attention to this fact in one of our leading reviews, Mr. Root promptly denied that he had ad. vanced such a proposition in the address referred to, although the associatied press report of the address carried the information far and wide.
6 In force January 22, 1913. Colo. Stats. 1913, p. 678, 81.
The Standing Committee of the New York State Bar Association has done its work admirably and thoroughly on the task assigned to it in 1914 has made two reports,a general report to the annual session of the association held in 1915, and a second or supplementary report to the annual session in 1916,--leaving scarcely anything to be desired further, and richly merits the gratitude of the bench and bar of the whole country, as well as of accurate scholarship. The committee has incontrovertibly established, by a wonderful accumulation of documentary evidence, that “there are certain original inherent rights belonging to the people,'18 that a constitutional bill of rights is necessary because of, as Thomas Jefferson once put it, "the legal check which it puts in the hands of the judiciary," that, as was well pointed out by Gouverneur Morris, “the boasted importance of legislative authority is but a jingle of words; in the literal meaning, is impious;'>10 that “the theory of our governments, state and national, is opposed to the despotism of unlimited power anywhere.’r11 The committee show by documentary evidence of the highest character, both historical and judicial,12 that the right and practice of courts to set aside statutes in contravention of the rights of the people and the fundamental law of the land has existed in all countries, ancient13 and modern,14 and until almost within the memory of men now living; that is to say, in England until subsequently to the American Revolution, after which time the Privy Council and Court of King's Bench made a series of decisions which foisted upon the people of Great Britain a court new and hitherto unprovided for otherwise, by declaring Parliament to be not only the supreme legislature, but also the highest court in the land, giving it the name of the High Court of Parliament, and to the laws enacted the character of decisions of this High Court;15 and they show further, that even to this day the Privy Council annuls, as
7 "American Doctrine of Constitu- & Answer of the Massachusetts tional Law," 7 Harvard Law Re- House of Representatives to the Gov. view, p. 129, is doubtless the utter ernor's Speech, Oct. 23, 1765. See ance of Prof. Thayer to which Mr. Samuel Adam's Works (Cushing's Roosevelt refers. It is to be noted, ed.), p. 17. in passing, that Prof. Thayer was
9 Jefferson's Works (Ford ed), not the only person who has re
Vol. 5, pp. 80, 81. garded, and declared, the power and practice of the American courts to 10 He further said, and it seems to declare unconstitutional and void a us justly, that "whatever interprestatute in contravention of the fun- tation lawyers may give, freemen damental law as "unique;" this er- must feel it to be absurd and unconror has been shared by others. See, stitutional. Absurd, because laws among other publications: “The cannot alter the nature of things; Law of the Constitution (1908 ed.), unconstitutional, because the constipp. 96-105, 160-169; Roger's Consti- tution is no more if it can be tutional History, Introduction, pp. changed by the legislature" (and he 9-14; Maine's Popular Government, might well have said by the people, pp. 217, 218; I De Tocqueville's otherwise than in the duly apDemocracy in America (1862 ed.), pointed manner). See Carson's pp. 123-130, (1889 ed.), pp. 94-100; History of the Supreme Court of the I Bryce's American Commonwealth United States, p. 122. (1889 ed.), pp. 237-258.
11 Citizen's Savings & Loan Assoc. v. Topeka, 87 U. S. (20 Wall.) 655, 663, 22 L. ed. 455, 461.
12 Among the English law author. ities may be instanced Viner's Abridgment, tit. Statutes (E.6), where it is said: “15. It appears in our books, that in several cases the common law shall control acts of parliament, and sometimes adjudge them utterly void; for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law shall control it, and adjudge it to be void.” This doctrine is supported in 4 Comyn's Dig. tit. Parliament (R. 27); Bacon's Abridg. ment, tit. Statute (A); City of London v. Wood, 12 Mod. 669; Day V. Savadge, Hob. 85, 87a-87b; Bonham's Case, 8 Co. Rep. 114a, and others.
13 In the Roman Empire, from the time of Justinian, judges were ad monished to permit no special imperial ukase or private law of the Emperor to be alleged before them which seemed to be adverse to gen
eral law or public utility; that the general imperial constitutions were to be observed. See Coxe's Judicial Power, pp. 108-112.
14 Throughout the continent of Europe, until after the French Revolution, the Law of Nature or law of God, though unwritten, was held to be the supreme law, invalidating all human laws inconsistent therewith. See Haine's American Doctrine of Judicial Supremacy, pp. 1824, 34-37; Coxe's Judicial Power, pp. 79-83, 104, 105, 135-164. See, also, I Continental Legal History Series, pp. 178-183, 272, 407-424.
15 See Kelly v. Carson, 4 Moore, Privy Council, 89, 90; Burdets v. Abbott, 14 East 135, 138, 141, 159, 160; Stockdale v. Hansard, 9 Ad. & El., 109, 127, 130, 112 Eng. Repr. 1112, 1154, 1160, 1162, 36 Eng. C. L. 27. The discussion of Mr. Justice Miller, on another angle of the general topic, in the case of Kilbourn v. Thompson, 103 U. S. (13 Otto) 168, 183-185, 26 L. ed. 377, 384, is interesting and instructive.