stitutional amendment and statutory enactment in twenty states-not the complete provisions in all the states, but some of these provisions, and to some extent, in all the states.35

36

Regarding the various matters inquired about in the "questionaires" of the Standing Committee, to enable the committee to "ascertain the accuracy or inaccuracy of the views of the leaders of thought and publicists advocating the recall of judges," it is to be noted that it is a far call from the questions propounded to anything pertaining to the virtue or wisdom of the provision for the recall of judges, or to the question as to what influence the fact of the existence of such a provision, and of its exercise, will have upon the independence of the judiciary and the action of courts when called upon to pass upon statutes in contravention of the fundamental law. The committee seems to have diligently ransacked all history for inapt questions propounded-the answers to which, however scholarly, accurate and exhausting must of necessity be negligible in arriving at an intelligent conclusion on the

stances enforcing the wisdom of a provision for recall and the appropriateness of its application to the judiciary impeachment proceedings, it has been shown by the history of such proceeding in this country, are potent for the miscarriage of justice. In the first class of cases referred to above is the California case of People v. Schmitz, 7 Cal. App. 369 (the Supreme Court decision is hidden away in the reports of the inferior court), and of the second class are the cases of the Standard Oil Co. v. United States, 221 U. S. 1, 35 L. ed., 619, 31 Sup. Ct. Rep. 502 and United States v. American Tobacco Co., 221 U. S. 106, 55 L. ed., 663, 31 Sup. Ct. Rep. 632, in which the federal Supreme Court usurped the function and province of the legislative department, and construed into the statute words which the Congress of the United States had on two distinct occasions refused to enact into the statute

and furnished the occasion for that memorable and able dissenting opinion of the late Mr. Justice Harlan.

35 When New Mexico presented herself with a constitution and demanded admission into the sisterhood of states, William H. Taft, as President, refused to approve the constitution presented for reason, as he alleged, that it did not provide for a republican form of government, in as much as it provided for the recall of judges. At the dictation of Mr. Taft the constitution was amended by omitting the provision for the recall of the judges, and the territory was promptly admitted as a state. Immediately upon admission into the Union the New Mexico constitution was amended in 1912, by restoring the deleted provision for the recall of the judges.

36 Printed in full in footnote, 26 ante.

question the committee has under investigation. This is a little surprising, in as much as they had such a fertile field to draw from in American administration, or mis-administration of the law; or, if regarding the American field as a little too "personal," and likely to arouse "irritation" in some quarters, ample material is found for pertinent selections in the reigns of the Stuart Kings, or even in the transactions during the reign of Charles I, with its special schemes for Ship Money; attainder of persons slain in battle; Star-Chamber outrages; its Lauds, its Straffords, Heaths, cowardly Finchs, and other venal and time-serving judges. Many instances as strong, and as violative of every principle of law and right could be found as that of the judicial theft of the foreshore in the famous-or, rather, infamous-Philpot Case, in 1628, rendered by the judges who sat in the Ship-Money Cases, who were obsequious to serve the "straightened circumstances" of an arbitrary and foolish king by declaring the foreshore to belong to him in his individual right and not as king of England! But this decision never became the law in England, because the people, under the leadership of John Pym, lawyer; Oliver Cromwell, soldier, and other patriotic and staunch souls, rose in their might and put an end to the pretentions of Charles I, terminated his rule, and cut off his head as a punishment for his many usurpations and iniquities! And yet the decision in the Philpot Case, rendered by such venal and unprincipled judges, under such atrocious circumstances, for such an audacious purpose,notwithstanding it never was law in England,-was servilly followed in this country by a precedent-worshiping judiciary for more than a century, and until reviewed in its historical and legal light in 1907, and the whole superstructure of the long line of American cases founded upon the Philpot Case overturned by the decision in the case of the Town of Brookhaven v. Smith.37

37 188 N. Y. 74, 9 L. R. A. (N. S.) 326, 11 Ann. Cas. 1, 80 N. E. 665.

See Frederick R. Coudert's concise and scholarly reiew of the sub

The want of relevancy to the subject being investigated on the part of much, if not most of the "questionaires' sent out, must not be allowed to "throw chaff" in our eyes, or befog the real question at issue. What is called for by the "questionaires" is mental gymnastics rather than enlightening information or pertinent argument. Some of the questions propounded are interesting in and of themselves, as questions of abstract thought or study,-in a purely academic way, or from the standpoint of history, or in a comparative study of theories of government and methods of procedure-however little they may be related to, or in any way informing upon, the subject under discussion on the matter under consideration.

The first question propounded, in both its relations, is abundantly answered-from the standpoint of the writer -in what has already been said herein. Regarding the instanced action of King Philip II of Spain, there can be but one intelligent answer by a liberty-loving and justice-fostering American-and that is, that the matter, either in theory or in practice, has absolutely no bearing upon the question in hand, and is not even remotely related to it; that it can have no bearing or influence upon any form of enlightened and civilized government in any land at this time. We of this day and age of the world cannot overlook the fact that Philip II was not a man, but a monster; not a ruler, but a demon tyrant; not a religious zealot, but a bigot and a hypocrite; not upright and honest, not sincere and true, in any walk in life, but deceitful and intriguing and lying and treacherous even to those most devoted to his miserable person; untrue alike to his wives and his friends, and is charged with having been the murderer of his own son! A man and a monarch-if monarch he may be called-who knew no law but his own nefarious will, and that will was as unstable and changeable as the winds of the tropics. We cannot forget the autos de fé es

ject in his chapter on "Perversion of a Precedent," in his admirable

volume, "Certainty and Justice," p. 205 et seq.

tablished in Spain and other parts of the world so unfortunate as to be under Philip II's sway; the "Court of Blood" established in the Netherlands; the atrocities committed upon the denizens of the New World-Savage and Christian alike. Neither can we forget the bigoted bishops nor the sycophant and servile judges of those respective courts, who were so subservient to his nefarious purposes. Philip II was a veritable monster, and no enlightened and liberty-loving American can approve of any measure he ever proposed or any act he ever did or caused to be done! The Krebsmühle or Crab-Mill Case, known to history as Miller Arnold Case, in which Frederick the Great played so conspicuous a part in righting a great wrong-but failed to bring home the consequences to the real "culprit" in the matter, one Freyherr Baron von Gersdorf, of Kay, who could not forego the pleasure of a private fishpond, even though it did rob Miller Arnold of his accustomed water with which to mill the usual grists for a time of which the memory of man runneth not to the contrary. Landlord to Miller Arnold was a Major Graf von Schmettau, who had them up in his own court of Pommerzig, a "manorial or feudal kind of court," for nonpayment of rent, which rent they could not pay because they had no water to grind grists, it all went into Baron von Gersdorf's fishpond. It is needless to say that Von Schmettau's court gave judgment for Von Schmettau. This was at the time when the Prussian abuses in the administration of the law had become unendurable to the King, and was during the time of the second law-reform period. The Project des Corporis Juris Fridericiani, the work of the eminent jurist, Samuel von Cocceji, having proved inadequate to the requirements, and the law abuses being so outrageous to justice, the King set the grand chancellor, Count Johann H. C. von Cramer, to work to improve upon the labors of Von Cocceji, and the result was the Allgemeines preussisches Landrecht-which was not completed and adopted until after the death of Frederick the Great. In the meantime the Ar32

VOL. L.

nolds got no redress, and the many urgent requests of the King brought but one answer-nothing wrong in the procedure and conclusion reached. Impatient, the King, a despotic autocrat, took the matter into his own hands and administered what to him seemed justice to the Arnolds,however short it may fall of "legal justice;" in the course of which proceeding, he expresses his contempt for the Federzung or goose-quill class, and delivered himself of sentiments that read much like planks in a modern progressive platform, wherein he directs that all courts shall "proceed to deal equally with all people seeking justice, be it prince or peasant; for, there, all must be alike," declaring that "for a court of law doing injustice is more dangerous and pernicious than a band of thieves; against these one can protect oneself; but against rogues who make use of the cloak of justice to accomplish their evil passions, against such no man can guard himself. These are worse than the greatest knave the world contains, and deserve double punishment. He further adds: "My gentleman (Herr von Zedlitz) won't make me believe black is white. I know the Advocate sleight-of-hand, and won't be taken in. An example becomes necessary here,-those scoundrels (Canaillen) having so enormously misused my name, to practice arbitrary and unheard-of injustices. A judge that goes upon chicaning, is to be punished more severely than a highway robber. For you have trusted the one; you are on your guard against the other."

1938

Frederick the Great, thereupon directed the State's-Minister, Freiherr von Zedlitz, to pronounce judgment upon those servants-of-justice arrested by his command for their misconduct in the Arnold case, and von Zedlitz having found himself unable to "draw up a condemnatory sentence" against the Raths, the king proceeded forthwith to pronounce the judgment himself. It is to be noted that substantial right and justice was done in the sentence with reference to

38 Carlyle's Frederick the Great, bk. XXI, ch. VII, Standard Edition, Vol. VI, p. 392.