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"the theory of our governments, state and national, is opposed to the despotism of unlimited power anywhere."11 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
1 1 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 (B.. 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.
is 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.
"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.
is 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.
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."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,10 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,"2" which
"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
not permit a reference here to the numerous cases.
"Coxe's Judicial Power, 79-83.
is "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.
is Annual Bulletin American Bar Association, 1914, pp. 86, 89, 92. 2» Id., p. 88. si Id., pp. 86, 89, 92.
22 Id., p. 101.
23 id., p. 104.
2i Id., p. 121, 122.
20 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, Frledel 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 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,"268—and any one who
Rhode Island In censuring and refusing to re-elect the judges who refused to enforce a paper money legal tender law in Trevett v. Weeden, 1 Thayer's Cases on Constitutional Law, 73, 77, 78; Cooley Constitutional Limitations, 7th ed., 229, note?
8. Do you approve or disapprove the action of the Legislature of Ohio in attempting to impeach two of the three judges who refused to enforce a law partially abrogating the constitutional right of trial by jury (1 Chas Statutes of Ohio, 1833. pp. 38-40; Cooley, Constitutional Limitations, 7th ed., 229, 230, note)?
9. Do you approve or disapprove the action of the Governor and Legislature of Kentucky who tried to remove by address Circuit Judge Clark for holding that the law staying replevins for two years unless the creditor endorsed on his execution a consent to take notes of red dog and wild cat banks impaired the obligation of contracts?
Do you approve or disapprove of the action of the Governor and Legislature in attempting to remove by address the judges of the State Court of Appeals for affirming the above decision, and then passing a law purporting to abolish the old court in favor of a so-called new court (Sumner's Andrew Jackson,
120-128, 132-134; 1 Collins' History of Kentucky, 30-35; 4 Littell 34-87; 1 J. J. Marschall 206-209; 21 Yale Law Journal 1375-1379; Kentucky Bar Association Year Book, 1909, 5965)?
10. Do you approve or disapprove the Legislature of Massachusetts and Governor Banks removing by address Judge of Probate Loring for enforcing the fugitive slave law as United States Commissioner (1 Rhodes' History U. S., 500-505; 1 (C. P. Adams) Life R. H. Dana, 341347)?
11. Do you approve or disapprove the action of the federal authorities in arresting a number of elective state judges who refused to enforce the first civil rights bill (Flack, Adoption 14th Amendment, 50, 51)?
2fia I do not take into consideration mere politicians or impractical theorists who "catch their ideas at rebound," and who seem obsessed with the glamor of an "iridescent dream" put forward as a campaign expedient in the hope that it might prove a vote-catcher. Some of these latter are serving up some well-deserved strictures upon courts which have taken unto themselves functions and powers not conferred; and particularly the United States Supreme Court for some unwarranted constructions given to the 14th amendwill 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
ment—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."
-~ The declaration of Mr. Justice Miller in the case of Citizen's Savings & 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.