« PreviousContinue »
cracies for over two centuries, and until the present hour. When Finland and the Aland Islands were ceded to Russia by Gustavus IV in 1809, Finland did not enter Russia as a conquered country, but maintained her free institutions and fundamental laws, becoming a semi-independent grandduchy, with its own senate (the first in which women ever sat as legislators, 39 in number), and its own governorgeneral. The province of Viborg was reunited to Finland in 1811, and has since that time partaken of like freedom and independence. On the assassination of Alexander II, the influence of the reactionary party in Russia began to create trouble for Finland. Although one of the first acts of Alexander III was to confirm the constitution and freedom accorded to Finland by his predecessors, soon the Slavophil movement, with its motto of "one law, one church, one tongue," acquired great influence in official circles, the aim being, in defiance of the solemn pledge of successive czars, to subject Finland to the Orthodox Church and to autocracy. Years of bitter struggle fol-' lowed, the details of which cannot be set out here, with the result that on the accession of Nicholas II, the valiant constitutional struggle still being acute and the Finns still being free, in a manifesto of February 15, 1899, the Czar sought to abrogate the legislative power of the Finnish diet, and a new military law was proclaimed in July, 1901, by means of which it was sought to practically amalgamate the Finnish and Russian forces. But patriotic and determined Finns still struggled on,—and maintained their rights and their independence. This dogged resistance and earnest determination culminated in an imperial manifesto on November 7, 1905, by which all the demands of the Finns were granted, and the status quo ante 1899 was restored. From this brief summary it will be seen that the High Court of Viborg (the province of Viborg being an integral part of Finland) was right, and the Russian government flagrantly wrong.
In the case of Rutgers v. Waddington, the decision was made by an inferior court—a court corresponding in many particulars to a modern police court—and with a jurisdiction and efficiency comparable to that of a magistrate or justice of the peace. If the decision was wrong, or even if unsatisfactory, there was ample remedy by an appeal or writ of error. The assembly of New York at that time, I believe, was the court of last resort in New York, and might, of their own initiative, probably, have caused a proper review to be had. The Mayors Court was properly surprised that "a case of such magnitude should receive its first impression from a court of such limited jurisdiction," "from magistrates actively engaged in establishing the police of a disordered city," but the members were in a measure consoled by the intimation in argument that it was "probable, whatever might be their determination, the case would not end there." Why was not the case appealed? The Assembly's censure was clearly not only wrong, but childish.
In Trevett v. Weeden, the act under which the Superior Court of Judicature refused to take jurisdiction was not only unjust but unconstitutional in more regards than one, in that it deprived of the constitutional right of trial by jury, provided for a new and an unconstitutional court, in that a less number of the judges of the court required to constitute a quorum were designated as a court to try violations of the act, and made the decision of these judges final, specifically depriving of the constitutional right of appeal. The judges were unquestionably right in their decision, and if they were not, there was ample remedy by appeal, error or certiorari, or possibly by mandamus in a higher court to compel them to take jurisdiction. Plainly the legislature was at fault in censuring the judges but acted within its plain rights in refusing to re-elect the judges for this or any other reason—but not justified in so doing.
In the case of the Ohio judges who refused to enforce an act of the legislature which was in derogation of the right of trial by jury guaranteed by the Ohio constitution, the judges were in the right and the legislative attempt at impeachment for rendering such decision was wrong— men stepping beyond the legislative function of government and attempting to dictate to the judiciary (an independent and co-ordinate branch of the government), in what manner they should perform the functions of the high trust reposed in them. This was another manifestation of the public hysteria in the New York case and the Rhode Island case. When you consider the character, or want of character, of the average legislators, and the motives which control their acts, these three occurrences, and the Kentucky case following cannot be regarded as the deliberate acts of cool-headed and intelligent men uninfluenced by an outburst of public hysteria, and are valueless in this connection for any purpose.
The Kentucky case is of a class with the last three discussed, with these important differences: (1) the executive department joined with the legislative department in attempting to do an unconstitutional act; (2) they attempted to perform an act of removal in a way not provided for by the constitution and laws of the State; and (3) attempted by statute to abolish a court established by the constitution and to erect in its place a court not provided for by the constitution. Not one of their acts can be tolerated in any State with an established form of government—a simple illustration of the tyranny of ignorance and spleen.
The Massachusetts case, although the result of an outburst of public indignation taking on a form of hysteria, is on a somewhat different footing, occurring as it did at the height of the excitement in one of the history-making epochs43 of our nation. The sentiment in the north was at fever heat and the current was beginning to turn against the fugitive-slave law and in favor of common humanity;44
« See Vol. 18 The American Na- « Life of Seward, Vol. II, p. 230. tion: A History, pp. 263-285.
so-called personal liberty laws of a very stringent character were passed in many, if not in most of the States north of the Mason and Dixon line, in a determined effort to effectually block the operation of the^fugitive-slave law, and which came so near nullifying the federal constitution that they showed, as nothing else could have done, the extent to which sectional feeling had progressed, and that the fugitive-slave law could be executed over the extreme and strenuous opposition of the people of the North, only.43 This was the period of righting a great wrong of centuries standing. Just at this time indignation at the signing by the President of the Kansas-Nebraska bill, and at the action of the United States authorities in Boston in the Burns case,415 added fuel to the flame of righteous indignation. Judge Loring may not have participated in the high-handed proceedings of the Federal authorities, but the proof introduced before him was so clumsily presented and so technically defective, that he was abundantly justified in setting Burns at liberty, if he had chosen to do so.47 Aside from the matter of Judge Loring's proper or improper action in the Burns case, it must be admitted that he did wrong in holding at one and the same time, under such a state of public feeling, the position of United States commissioner and Judge of Probate ;4S and it cannot properly be said that the legislature, in acting favorably upon the petition sent them in March, 1855, demanding the removal of the Judge of Probate from office, exceeded their power in "divorcing" the two offices from one and the same person. The public indignation was wrought up to such a pitch over the details of the Burns case that the people re
« 18 The American Nation: A 000 in the case. 1 Rhodes' History History, pp. 283-285; VII Wiley's of the United States, p. 504, et
The United States, p. 330, et seq. seg.
«« The proceedings in the Anthony Burns Case, an escaped slave, tried
in Wmi i , M.v vvu TM~ \«T United states- P- 332 and authorities
in .boston, in May, 1854, were un- ., . J,,., , n. j It. n
questionably highhanded on the there cited; Wilson s Rise and Fall
part of the federal authorities, who of the Slave Power- pp" 435' 436
were determined to win at any cost, 4» 1 C. F. Adams' Life of R. H.
and are said to have expended $40,- Dana, p. 343.
lentlessly hunted down and procured the dismissal from office of every person interested in or in any way connected with the restoration to slavery of the man Burns/0 The arrest of the State judges for refusal to enforce the XIVth amendment to the Federal constitution occurred in that unsettled period following the rebellion, when the South was filled with and oppressed by blatant and unprincipled carpet-baggers; when the bitterness of the great struggle thralled North and South alike; at a time when the XIVth amendment had not been passed upon and construed and its full scope and import fixed and determined. Those judges who refused to dismiss, as under the magic aegis of the XIVth amendment, cases against negroes who were charged with the violation of state laws, such as carrying concealed weapons, illicit traffic in spirituous liquors, miscegenation and the like, acted in a very proper manner, and any interference by Federal authorities was an outrage; those judges who denied to negroes the full rights secured by the amendment, such as their civil rights, the right to take an oath and give testimony in a cause in a court of justice, acted wrongly and richly merited due punishment in a proper proceeding for that purpose. It is the high function of a judge to execute valid laws and constitutional provisions faithfully and impartially; if his conscientious scruples, or his blind partisan prejudices, will not permit him to do this—he should at once resign, or else be summarily removed.
James M. Kerr.
Los Angeles, Cal.