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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."

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

tion is the highest form of legislative law, the fundamental law upon which all other laws rest and to which they must conform, and it must be preserved inviolate, 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 todayand a law (as well as an administration of the law) demanded which shall be in closer touch with prac

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 advanced 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, §1.

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.'

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, 8 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

7 "American Doctrine of Constitutional Law," 7 Harvard Law Review, p. 129, is doubtless the utterance of Prof. Thayer to which Mr. Roosevelt refers. It is to be noted, in passing, that Prof. Thayer was not the only person who has regarded, and declared, the power and practice of the American courts to declare unconstitutional and void a statute in contravention of the fundamental law as "unique;" this error has been shared by others. See, among other publications: "The Law of the Constitution (1908 ed.), pp. 96-105, 160-169; Roger's Constitutional History, Introduction, pp. 9-14; Maine's Popular Government, pp. 217, 218; I De Tocqueville's Democracy in America (1862 ed.), pp. 123-130, (1889 ed.), pp. 94-100; I Bryce's American Commonwealth (1889 ed.), pp. 237-258.

8 Answer of the Massachusetts House of Representatives to the Governor's Speech, Oct. 23, 1765. See Samuel Adam's Works (Cushing's ed.), p. 17.

9 Jefferson's Works (Ford ed), Vol. 5, pp. 80, 81.

10 He further said, and it seems to us justly, that "whatever interpretation lawyers may give, freemen must feel it to be absurd and unconstitutional. Absurd, because laws cannot alter the nature of things; unconstitutional, because the constitution is no more if it can be changed by the legislature" (and he might well have said by the people, otherwise than in the duly appointed manner). See Carson's History of the Supreme Court of the United States, p. 122.

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"the theory of our governments, state and national, is opposed to the despotism of unlimited power anywhere.'"1 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, 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

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 authorities 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 Abridgment, 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 admonished 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.

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ultra vires, Dominion, Commonwealth, Union and Colonial laws in excess of, or in contravention of, the acts constituting the dominion or commonwealth, quite as freely as does our federal Supreme Court in cases where the federal constitution is contravened.16 In France, the right and the practice existed from an early day until the chaos and anarchy of the Revolution was succeeded by the Constitution of 1791. In Germany, the right and practice existed down until the inauguration of the reign and rule of "iron and blood," and the practice is not entirely discontinued under that rule today, but is diverted from the good of the people to the purposes of the "empire. "" In the South American Republics, the right and practice in a similar manner, if not the exact doctrine of annulment in all, exists today; as in Argentina, Bolivia,20 Brazil, Columbia,22 Cuba,2 Mexico, Venezuela,25 and possibly elsewhere. Not content with these accomplishments, the Standing Committee has formulated a new "questionaire," which

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16 The cases are quite numerous; the following are cited for those who wish to look further into the question: Royal Bank of Canada v. Rex, App. Cas. (1913), 293, 289-298; Re Marriage Legislation in Canada, App. Cas. (1912) 880, 886, 887; City of Montreal v. Montreal St. R. Co., App. Cas. (1912), 336, 346; Burrard Power Co. v. Rex, App. Cas. (1911), 97, 94, 95; Woodruff v. Attorney General of Ontario, App. Cas. (1908) 508, 513; Toronto Corp. v. Bell Tel. Co., App. Cas. (1905) 52, 58, 59; Attorney General v. Hamilton St. R. Co., App. Cas. (1903) 524, 528, 529; Union Colliery Co. v. Bryden, App. Cas. (1899) 589, 587, 588; Attorney General Dominion of Canada v. Attorney Generals of Ontario, etc., App. Cas. (1898) 701, 714.

The same is true of the House of Lords. See among other cases, Webb v. Outrim, App. Cas. (1907) 88; Routledge v. Low, L. R. 3 H. L. 100, 108-120.

The same is also true of the highest courts of the various dominions, provinces and commonwealths of the British Empire, but space will

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not permit a reference here to the numerous cases.

17 Coxe's Judicial Power, 79-83.

18 "The Imperial Courts have had to declare state laws or ordinances inoperative in order to enforce the precedence of the imperial laws."Standing Committee's Report, 1915, p. 85.

19 Annual Bulletin American Bar
Association, 1914, pp. 86, 89, 92.
20 Id., p. 88.

21 Id., pp. 86, 89, 92.
22 Id., p. 101.

23 Id., p. 104.

24 Id., p. 121, 122.
25 Id., p. 148.

26 The questions propounded by the committee in the "questionnaires" sent me are as follows: 1. Do you agree or disagree with the views of Senator Robert L. Owen that "The moment the recall went into effect the courts would promptly discontinue . . . declaring an act of Congress unconstitutional;" also that both nation and state should take or keep "control of the judiciary by short tenure and by recall" (47 Congressional Record, July

it has sent out to assist them, as the committee puts it, in "trying to ascertain the accuracy or inaccuracy of the views of those leaders of thought and publicists advocating the recall of the judges who assert that those urging judicial recall do so in order to control the judiciary so as to prevent the courts declaring statutes in contravention of the fundamental law to be unconstitutional."

In connection with the above preliminary statement accompanying the new "questionaire" two things are to be noted. First: Did the New York State Bar Association constitute the Standing Committee a final court of arbitration with plenary power to pass upon and finally determine as to the "accuracy or inaccuracy of thought" touch

31, 1911, pp. 3360, 3373, 3369, 3370)?

Do you agree or disagree with the views of Judge R. M. Wanamaker that "Courts are now exercising jurisdiction in this country exercised in no other civilized country in the world. I refer particularly to judgments declaring legislative acts contrary to state and Federal constitutions. It is an usurpation of judicial power," which he says the recall would prevent (Illinois State Bar Association Year Book, 1912, pp. 181, 182, 185)?

2. Do you approve or disapprove of the action of Philip II of Spain in recalling alike Justiza's Lanuza of Argon, the fueros or liberties of Aragon and the Justiza's decision, with a block, a headsman and an axe, whereby the Justiza was executed, the fueros were overthrown and autocracy triumphed throughout Spain (1 Lea, Inquisition of Spain, 229, 230, 430-432; 4 Lea, Inquisition of Spain, 260-266, 269, 270; 3 Cambridge Modern History, 513517; 1 Prescott Reign of Charles V., 143-145, 260-265) ?

3. Do you approve or disapprove of the action of Frederick II recalling the decision of the highest court of Prussia in von Gersdorf v. Arnold by cashiering Chancellor von Frust, also by cashiering and fining for the benefit of Arnold, Raths Rannsleben, Friedel and Graun, and imprisoning the Raths first in the

town prison, then in the fortress of Spandau? Do you consider the action of Frederick William II in reinstating the cashiered Raths, but not the Chancellor, and paying the Raths' fine without enforcing restitution thereof from Arnold, was a re-establishment of judicial independence (10 Carlyle Frederick the Great, Book 21, Ch. 7, pp. 126-147)? 4. Do you approve or disapprove the action of President Kruger and the Valksraad in threatening to cashier the judges of the High Court of the South African Republic because they enforced the Grondwet, and threatening to fill their places with creatures of the war party (14 Cape Law Journal 169177) ?

5. Do you approve or disapprove the action of the Russian Government in imprisoning the High Court of Viborg for eight months because it refused to execute an act of the Russian Duma which had not been passed by the Finnish Senate (New York Times, May 25, 1914)?

6. Do you approve or disapprove of the act of the Assembly of New York in 1784 in censuring the Judges of the Mayor's Court of the City of New York for deciding Rutgers v. Waddington, I Thayer's Cases on Constitutional Law, 63, 72, 73?

7. Do you approve or disapprove of the action of the Legislature of

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