Page images

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 1791.1? 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."'18 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,19 Bolivia,20 Brazil,21 Columbia, 22 Cuba,23 Mexico,24 Venezuela,25 and possibly elsewhere.

Not content with these accomplishments, the Standing Committee has formulated a new questionaire,''26 which

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. At torney 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

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 I d., 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 questionairetwo 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)? town prison, then in the fortress of

Do you agree or disagree with the Spandau? Do you consider the acviews of Judge R. M. Wanamaker tion of Frederick William II in rethat “Courts are now exercising ju instating the cashiered Raths, but risdiction in this country exercised not the Chancellor, and paying the in no other civilized country in the Raths' fine without enforcing restiworld. I refer particularly to judg- tution thereof from Arnold, was a ments declaring legislative acts con- re-establishment of judicial indetrary to state and Federal constitu- pendence (10 Carlyle Frederick the tions.... It is an usurpation of Great, Book 21, Ch. 7, pp. 126-147)? judicial power,” which he says the 4. Do you approve or disapprove recall would prevent (Illinois State the action of President Kruger and Bar Association Year Book, 1912, pp. the Valksraad in threatening to 181, 182, 185)?

cashier the judges of the High 2. Do you approve or disapprove Court of the South African Repubof the action of Philip II of Spain lic because they enforced the Grondin recalling alike Justiza's Lanuza wet, and threatening to fill their of Argon, the fueros or liberties of places with creatures of the war Aragon and the Justiza's decision, party (14 Cape Law Journal 169with a block, a headsman and an 177) ? axe, whereby the Justiza was exe- 5. Do you approve or disapprove cuted, the fueros were overthrown the action of the Russian Governand autocracy triumphed through- ment in imprisoning the High Court out Spain (1 Lea, Inquisition of of Viborg for eight months because Spain, 229, 230, 430-432; 4 Lea, In- it refused to execute an act of the quisition of Spain, 260-266, 269, 270; Russian Duma which had not been 3 Cambridge Modern History, 513- passed by the Finnish Senate (New 517; 1 Prescott Reign of Charles V., York Times, May 25, 1914)? 143-145, 260-265)?

6. Do you approve or disapprove 3. Do you approve or disapprove of the act of the Assembly of New of the action of Frederick II recall. York in 1784 in censuring the ing the decision of the highest court Judges of the Mayor's Court of the of Prussia in von Gersdorf v. Ar City of New York for deciding Rutnold by cashiering Chancellor von gers v. Waddington, I Thayer's Frust, also by cashiering and fining Cases on Constitutional Law, 63, 72, for the benefit of Arnold, Raths 73? Rannsleben, Friedel and Graun, and 7. Do you approve or disapprove imprisoning the Raths first in the of the action of the Legislature of

ing the subject-matter involved, or is it an assumption on the part of the committee? Surely it will not be claimed that the committee, however learned its members may be, as a body, is infallible, although they seem to have assigned to them, or have arrogated to themselves, authority hardly less than pontifical. Second: The proposition is scarcely correctly stated, for the reason that the “leaders of thought and publicists” who advocate and have brought about statutes providing for the recall of judges, equally with other public officers, do not assert that the object and purpose in instituting and enforcing the recall of judges is “to control the judiciary so as to prevent the courts” from “declaring statutes in contravention of fundamental law to be unconstitutional, '9268—and any one who

Rhode Island in censuring and re. 120-128, 132-134; 1 Collins' History fusing to re-elect the judges who re- of Kentucky, 30-35; 4 Littell 34-87; fused to enforce a paper money legal 1 J. J. Marschall 206-209; 21 Yale tender law in Trevett v. Weeden, 1 Law Journal 1375-1379; Kentucky Thayer's Cases on Constitutional Bar Association Year Book, 1909, 59Law, 73, 77, 78; Cooley Constitu- 65) ? tional Limitations, 7th ed., 229, 10. Do you approve or disapprove note?

the Legislature of Massachusetts 8. Do you approve or disapprove and Governor Banks removing by the action of the Legislature of address Judge of Probate Loring for Ohio in attempting to impeach two enforcing the fugitive slave law as of the three judges who refused to United States Commissioner (1 enforce a law partially abrogating Rhodes' History U. S., 500-505; 1 (C. the constitutional right of trial by F. Adams) Life R. H. Dana, 341jury (1 Chas Statutes of Ohio, 1833. 347)? pp. 38-40; Cooley, Constitutional 11. Do you approve or disapprove Limitations, 7th ed., 229, 230, note)? the action of the federal authorities

9. Do you approve or disapprove in arresting a number of elective the action of the Governor and Leg- state judges who refused to enforce islature of Kentucky who tried to the first civil rights bill (Flack, remove by address Circuit Judge Adoption 14th Amendment, 50, 51) ? Clark for holding that the law stay 26a I do not take into consideraing replevins for two years unless tion mere politicians or impractical the creditor endorsed on his execu- theorists who “catch their ideas at retion a consent to take notes of red bound," and who seem obsessed with dog and wild cat banks impaired the the glamor of an "iridescent dream" obligation of contracts?

put forward as a campaign expediDo you approve or disapprove of ent in the hope that it might prove the action of the Governor and Leg a vote-catcher. Some of these latter islature in attempting to remove by . are serving up some well-deserved address the judges of the State strictures upon courts which have Court of Appeals for affirming the taken unto themselves functions above decision, and then passing a and powers not conferred; and parlaw purporting to abolish the old ticularly the United States Supreme court in favor of a so-called new Court for some unwarranted concourt (Sumner's Andrew Jackson, structions given to the 14th amendment-which decisions cannot be justified or defended on principle, or because of any existing "public policy," and which have wrought grave injustice to the people at large, while greatly to the advantage of the "favored classes.”

will take the trouble to look into the decisons of the courts in those states in which the recall of judges has been esestablished, will see that, in its practical application, the provision for recall of judges does not have that effect upon the courts. The sole object of the recall of judges is to secure, and to enforce, an able and impartial and an honest administration of the laws; not to control the decisions of the courts, or to in any manner interfere with the independence of upright, right-minded and well-meaning members of the judiciary.

It is to be noted that the theory of the recall of public officials, including judges, is not merely doctrinaire, or academic, and unsuited to the practical requirements of public offices, but, on the other hand, is adapted to and potent in promoting the attainment of the highest efficiency in public service, judicial or otherwise. A judge on the bench, where learned and upright and just in all things, as it is given to him to see the right, uninfluenced by any selfish and selfserving influences, and unswayed by any outside dictation, is one of the noblest creations of modern civilization; but in the ultimate analysis he occupies no other or higher position than any other servant of the people in so far as his tenure of office is concerned; there is no special and peculiar privilege of inviolability of possession attaching to the office and honor going with the ermine and the woolsack.27 In this ultimate analysis, and in fact, a judge is nothing more than the paid servant of the people in a high position of trust and responsibility; and whenever that servant ceases to perform efficiently and faithfully

27 The declaration of Mr. Justice Miller in the case of Citizen's Sav. ings & Loan Assoc. v. Topeka, 87 U. S. (20 Wall.) 655-663, 22 L. ed., 455,

461, that "the theory of our governments, state and national, is opposed to the despotism of unlimited power anywhere," applies with especial force to the “despotism” of an inalienable tenure of judges. The provision for impeachment of judges has, by practical experience, shown itself inadequate to the proper and expeditious purging from the bench of unworthy members thereof.

those services for which he was singled out from among his fellows to do and perform, there is no good or tangible reason why his master, the people, should not discharge him from his position and stop his salary, the same as a lazy, drunken, inefficient, or dishonest farm-laborer is dismissed by his employer. The purpose of the provision to enable the people thus to dispense with the services of and dismiss from their position unworthy or inefficient employes by a recall of judges, is not anywhere claimed, to my knowledge, by any discerning person familiar with the doctrine,—to be for the purpose of in any way influencing or controlling the honest and independent action of courts or judges in passing on the constitutionality of statutes, or to prevent the courts from holding and declaring to be unconstitutional statutes contravening the fundamental law.

A concise review of the situation leading up to, and in fact making imperative, the enactment of a provision for the recall of officers, including judges, will be helpful to a better understanding both of the purpose of the recall of judges and the reasons for the enactment of such provision. The fundamental theory of government in this country,—not always attained in practice, it must be sorrowfully admitted,-has always been, as Abraham Lincoln so forcibly and tersely put it, a “government of the people, by the people, for the people.":28 This is the grand conception and theory upon which our governments, federal and state, were founded; but for a long series of years it was, --and continues to be even yet,an unattained and an unattainable dream; yet this furnishes no reason why we should not still strive earnestly to attain that to which we have approached so appreciably nearer. We have had too much—of late years at least-government of political bosses, by political bosses (through their creatures and tools in congress, in legislatures, in the executive offices, on the bench,29 and elsewhere), for the selfish and sordid

28 Speech at Gettysburg, Nov. 19, 29 It is common knowledge, as well 1863.

as undisputed history, that Boss

« PreviousContinue »