IRLF 
 
 JK 
 
 1533 
 F5 
 1911 
 MAIN 
 
 SB Efl 
 
 OF JUDGES 
 
 By 
 
 IORRISON 
 
 READ BEFORE THE CHIT CHAT CLUB 
 OF SAN FRANCISCO 
 
 Jri.v !.-, 1911 
 
THE 
 
 RECALL OF 
 
 AN ESSAY By 
 
 A. F. MORRISON 
 
 READ BEFORE THE CHIT CHAT CLUB 
 
 OF SAN FRANCISCO 
 
 JULY 10, 1911 
 
THE 
 
 RECALL OF JUDGES 
 
 AN ESSAY By 
 
 A. F. MORRISON 
 
 READ BEFORE THE CHIT CHAT CLUB 
 
 OF SAN FRANCISCO 
 
 JULY 10, 1911 
 
INTRODUCTORY . a 
 
 Analysis of Proposed Senate Constitutional Amendment 
 
 No. 23 /V/\ 
 
 The last session of the California Legislature has 
 submitted to the people of this State, for adoption, 
 an amendment to their Constitution providing that 
 every elective public officer of the State may be re- 
 called, or removed from the office to which he has been 
 elected, and that his successor may be simultaneously 
 elected, by a majority vote of the electors entitled to 
 vote, and who actually do vote, at an election called 
 for that purpose. 
 
 The procedure provided in this amendment for re- 
 calling the officer and electing his successor, is sub- 
 stantially as follows: 
 
 A petition signed by a certain number of the 
 electors who are entitled to vote for a successor of 
 the officer sought to be removed must be addressed to 
 the Secretary of State and be filed with the Clerk or 
 Registrar of Voters of the county or city and county 
 in which the petition is circulated. But no petition 
 can be filed against an officer unless he has held office 
 for six months; except that in the case of members of 
 the Legislature it may be filed after five days from 
 the convening or organizing of the Legislature. 
 
 The petition must contain a general statement of the 
 grounds on which the removal is sought. This state- 
 ment, however, is intended solely to inform the voters 
 of the grounds on which the proposal to recall is 
 founded; and no matter how flimsy it may be, its 
 sufficiency is not open to review. 
 
 545416 
 
In case the removal of a local officer is sought, the 
 petition must be signed by a number of electors equal 
 to twelve per cent of the entire vote cast at the last 
 preceding election for all candidates for the office 
 which the incumbent occupies. In case the officer 
 sought to be removed is a state officer who is elected 
 in the state at large, or in any political subdivision 
 of the state, the petition must be signed by twenty- 
 five per cent of such electors. 
 
 When such a petition, properly certified, is pre- 
 sented to the Secretary of State, he must forthwith 
 submit it to the Governor, who must thereupon fix a 
 date for holding the election, not less than sixty days 
 nor more than eighty days from the date of the 
 certificate of the Secretary of State. 
 
 The election must then be held for the removal of 
 the incumbent officer and for the election of his suc- 
 cessor. Any person may become a candidate for the 
 succession to the office in case of the removal of the 
 incumbent, by filing a nominating petition signed by 
 electors equal in number to at least one per cent of 
 the total number of votes cast at the last preceding 
 election for all candidates for that particular office. 
 
 The recall ballot shall submit to the voters the 
 
 question : Shall (naming the incumbent) 
 
 be recalled from the office of (giving 
 
 the title of the office). 
 
 There shall be printed on the ballot, in not more 
 than two hundred words, the reasons, as set forth in 
 the petition, for demanding the recall. The incum- 
 bent has the privilege, either of resigning, or sub- 
 mitting his name for recall on the s;mi<> ballot which 
 contains the names of the new candidates who seek 
 his office. If he concludes to submit the question of 
 his removal to a vote he has the privilege of having 
 
printed on the ballot his justification of his course in 
 office, in not more than three hundred words. If a 
 majority of those voting at the election vote "No" on 
 the question of removal, the incumbent retains his 
 office. But if a majority vote "Yes" he loses his office ; 
 and the votes for the several candidates must be can- 
 vassed and the candidate who shall have received the 
 highest number of votes shall be declared elected to 
 fill the office for the remainder of the term. 
 
 It will be noticed that this provision applies, as was 
 intended, to judges as well as to other officers ; and 
 it will be the purpose of this essay to consider the 
 policy of applying such an institution to the judiciary. 
 
 The Recall is a Novel Idea in Republican Government. 
 
 The institution of the recall as applied to an elective 
 officer, during his term, is practically new in republi- 
 can government. There have been only a few instances 
 where it has been formulated. 
 
 Article V of the Articles of Confederation con- 
 tained this provision : 
 
 "For the more convenient management of the general interest 
 of the United States, delegates shall be annually appointed in 
 such manner as the Legislature of each State shall direct, to 
 meet in Congress on the first Monday in November, in every 
 year, with a power reserved to each State to recall its delegates, 
 or any of them, at any time within the year, and to send others 
 in their stead, for the remainder of the year." 
 
 We find no trace of this provision in the Constitu- 
 tion which was adopted about ten years later, nor in 
 any of the numerous state constitutions which have 
 been adopted from time to time, except the constitu- 
 tional amendment adopted in Oregon in 1908. The 
 Oregon amendment is the prototype of that of Cali- 
 fornia, and applies to all elective officers, including 
 judges. 
 
A like provision also exists in the new Constitution 
 of Arizona, which, however, has not yet become effect- 
 ive. 
 
 In municipal affairs, however, it has made con- 
 siderable progress, especially in this State. The first 
 record of its adoption is in Los Angeles in 1903 ; and 
 since that time, it has been adopted in a large number 
 of municipalities of this State and in a number of 
 other Western and Pacific States. 
 
 We are safe therefore in saying, that this idea 
 of recalling officers, and especially judges, as a 
 political institution in republican government, is a 
 novel idea ; and it may be well to briefly consider the 
 motive for its origin, and the supposed demand for it. 
 
 Motive for the Recall 
 
 While representative government, in the abstract, 
 is ideal, it has been found, after more than a century 
 of trial, to disappoint many of the hopes of its advo- 
 cates and to fail in the accomplishment of many of 
 the benefits which it was thought would result from its 
 adoption. Our state legislatures have gotten into 
 such bad repute with the people, that latterly the most 
 pronounced reforms in state constitutions, have pro- 
 vided for curtailing the length of legislative sessions 
 and narrowing the powers of legislative action. The 
 idea seemed to be that the less legislation the less 
 harm. 
 
 The same may be said of the municipal legislatures. 
 The modern charters breathe mostly of distrust of the 
 municipal legislature. And, at the same time, with all 
 this distrust and caution in the fundamental laws, 
 nothing has been more pronounced than the continued 
 inability of the people to select members of the state 
 and municipal legislatures for whom they can have 
 
respect ; and in many cases the work of legislation has 
 fallen into the hands of men who are utterly unfitted 
 for it by capacity or education; and, often, also, into 
 the hands of men who may be called public free- 
 booters. In former times many men of great attain- 
 ments and high character sought the office of state or 
 municipal legislator, as a stepping stone toward the 
 satisfaction of higher ambitions or because they were 
 imbued with a patriotic desire to benefit their state or 
 community. Of late years, in most states in this 
 country, it has been very difficult for such men to be 
 elected, because, as a general rule, they have been 
 required to form an alliance with some political ma- 
 chine or boss in order to get elected ; and this meant 
 to surrender their independence to such an extent that 
 the highest type of men would not accept the con- 
 ditions. Furthermore, if the position was sought by 
 a man of a practical turn of mind, who might take the 
 view that politics is a system of compromises with evil ; 
 and if he were willing to make some sacrifices, for the 
 good he could do when elected, he would, nevertheless, 
 when elected, generally find himself impotent to do 
 anything without the aid of his fellow legislators who 
 would often be mere chattels of some extra legal 
 power or boss, who pulled the strings and who per- 
 mitted or forbade all legislation, according as it was 
 or was not satisfactory to this extra legal power. He 
 often found his fellows to be men who sought the 
 office for the small pay it afforded them and the 
 opportunities to get bribes for themselves, or maybe 
 small jobs and pickings for themselves or their rela- 
 tives and friends. 
 
 It has finally come to pass, that a man is likely to 
 lose his good character if he becomes a member of the 
 legislature or of a municipal council; and what was 
 
once a position of honor has almost got to be a matter 
 of contempt. Yet the people have gone on year after 
 year electing legislatures and municipal councils of 
 the same character. Reformation seemed beyond their 
 power. When they lost confidence in one party and 
 turned it out and put another in, it was generally 
 found that they had changed one bad lot for another. 
 It seemed beyond the power of the people to elect 
 servants who would keep their pledges and be true to 
 the interests of the people. The men elected to office 
 generally turned out to be vicious demangogues who 
 sought to gain the applause of the people by reck- 
 lessly plundering, for the benefit of the people, the 
 big corporations who had business to transact with the 
 public, or to enrich themselves by blackmailing these 
 same corporations, or selling out to them when the* 
 temptation was made great enough. 
 
 These conditions became so bad that many patriotic 
 men began to despair for republican or democratic 
 government. It actually seemed as if the people were 
 incompetent to manage their own affairs, and that 
 our institutions were in danger of breaking down. 
 It seemed to many that we were fast drifting either to 
 anarchy on the one hand or to a despotism on the 
 other. At any rate, one thing was clear : The repre- 
 sentative system had, both in state and municipal 
 affairs, shown, in actual practice, elements of weak- 
 ness which seemed, in our present state of political 
 development, to make it unworkable for the produc- 
 tion of efficient and honest government. Within little 
 more than a decade we have seen the continuous 
 growth of great business corporations, which have ac- 
 quired a practical monopoly of some lines of industry, 
 and whose annual budgets are larger than those of 
 some respectable sized states and nations. They wield 
 
the tremendous power which necessarily conies with 
 the employment of many millions of capital and many 
 thousands of men. They are disciplined and managed 
 by the best ability that money and influence can secure, 
 and they have virtually become imperil in imperio. 
 These great corporations have often been managed 
 without that sense of personal responsibility or con- 
 science which would govern an individual acting for 
 himself. These huge organizations, in the course 
 of their business affairs, necessarily come in contact 
 with the public, not only with the state and the 
 municipality, but with the people in their unorgan- 
 ized capacity, because their business is in supplying 
 the needs of the public. Sometimes, through their 
 great power and influence, they have gotten advan- 
 tages in dealing with the public which an individual 
 would find it difficult to obtain. Sometimes these ad- 
 vantages have been improper and harmful to the 
 public, although sometimes they have been perfectly 
 proper. Now, there are many people in every com- 
 munity (and I am speaking only of honest and sin- 
 cere people, and not of the dishonest and insincere) 
 who cannot see any advantage conceded by the pub- 
 lic to a big corporation without believing it to be 
 crooked, nor can they see a controversy of any kind 
 between a big corporation and an individual, decided 
 in favor of the stronger party, without believing it 
 to be a crooked decision. The public at large seem 
 often to partake of this quality of mind. We can 
 all recall cases where the public will apparently 
 sanction a dishonest or ruthless act against a big cor- 
 poration, the like of which probably a majority of 
 the individuals would not stand for in private life, 
 or at least they would not sanction the like as be- 
 tween man and man. There are many enterprises 
 
which could not be carried on without great capital, 
 and it has been quite common for new communities 
 to offer big inducements to capitalists or corporations 
 to invest their wealth in some such enterprise which 
 will benefit the community. Franchises, bonds and 
 other inducements are freely sometimes recklessly- 
 voted. Perhaps the undertaking may be premature, 
 or "ahead of the times," as they say, but the big in- 
 ducements of future gain attract the present poor in- 
 vestment. Everything is lovely as far as the public 
 is concerned, while the capitalist is not making 
 money, but if the community grows up to the sanguine 
 expectations of the people who voted those induce- 
 ments to the capitalist, and his concession becomes 
 very profitable, it is quite common for the people, 
 in their collective capacity, led on by demagogues, to 
 try to take it back or nullify it. The history of this 
 country contains many cases of just such incidents. 
 Even states have been among the worst repudiators, 
 and the nation itself has narrowly escaped the dis- 
 grace on several occasions. Unfortunately the men in 
 control of the tremendous power of these great cor- 
 porations have often, from one motive or another, 
 yielded to the temptation to use their great power 
 politically, and when this power, with the organiza- 
 tion and skill behind it, came in conflict with the 
 unorganized masses of the public, organization and 
 skill won. 
 
 The people have seen men elected to their legis- 
 latures and other offices because of their supposed 
 friendliness to some big corporation, and they have 
 seen legislatures, state and municipal, enact laws and 
 vote privileges to corporations which they believed 
 would not be so voted except for the subserviency 
 to the corporations of those whom the people elected 
 
 10 
 
to office. And too often the people have been imbued 
 with the well-founded belief that some of those valu- 
 able privileges have been corruptly sold by their 
 chosen representatives. These things have made the 
 people extremely jealous and suspicious of every act 
 of their representatives, where one of these big cor- 
 porations is concerned, and the low character of many 
 of the representatives whom the people themselves 
 have elected to office has intensified this jealousy and 
 suspicion. 
 
 Added to all this there has grown up within the 
 last ten or fifteen years a school of journalists called 
 "yellow journalism/' and a school of magazine writers 
 called "muckrakers often Socialists and Anarchists, 
 sometimes in the open and sometimes in disguise 
 who have lost no occasion, and have often made the 
 occasion, to undermine the respect and confidence of 
 the masses of the people for the constitution and in- 
 stitutions of our country, and to stimulate and inflame 
 their jealousy and suspicion against their representa- 
 tives in office, and the corporations doing "big busi- 
 ness." The term "big business" has gotten to be al- 
 most as much an expression of contempt as the words 
 "member of the legislature," "councilman" or "super- 
 visor." 
 
 It cannot be doubted the "yellow journalists" and 
 the "muckrakers" have done some good in exposing 
 nefarious work, and there are probably honest and 
 sincere men among them. But it is undoubtedly true 
 that the most upright officials have been wantonly 
 and cruelly maligned without any higher motive than 
 to create discontent with the present order of things, 
 or to make a sensation, which will interest the public 
 and sell the paper or magazine. One great weakness 
 of the public is its delight in seeing character des- 
 
 11 
 
troyed, and people in high places traduced; though, 
 of course, it is much more satisfying if the abuse has 
 some foundation than if it has not. The newspaper 
 men have learned this lesson well, for whenever you 
 remonstrate with one of them for the bad character 
 of their publications, the invariable answer is that 
 they know what the public wants, and it is their 
 business to try to supply it. But when all is said, 
 and in spite of its own failings, there is no doubt 
 but that the public has often been badly treated by 
 its chosen representatives. In spite of the apparent 
 complacency with which the public, in election after 
 election, makes the same old mistakes and shows the 
 same old incompetency in electing its officials, it be- 
 lieves that it is entitled to better treatment than it 
 has received, and many people have worked them- 
 selves into the belief that the trouble is not so much 
 with themselves as with the system under which such 
 things happen. The temptation to try something new 
 is very strong. At any rate, during the last ten years 
 the public has been aroused to take a greater and more 
 earnest interest than for a long time before in pro- 
 viding checks on its representatives, and for taking 
 into its own hands a larger share in the management 
 of its own affairs. The reforms in this line have 
 been principally in adopting the institutions for direct 
 legislation by the people, known as the initiative and 
 referendum, and also the recall. 
 
 The Initiative, Referendum and Recall Explained and 
 Distinguished Generally. 
 
 The initiative and the referendum have been largely 
 borrowed from the Swiss Republic, but the recall is 
 of native growth. The recall has no necessary con- 
 nection with legislation, as have the initiative and ref- 
 
 12 
 
erendum. The initiative is the power of the people, 
 at large, to initiate legislation and to legislate. It is 
 direct legislation by popular vote, without reference 
 to the legislature. The referendum requires the act 
 of the legislature to be submitted to a vote of the 
 people for approval or rejection. The recall can be 
 applied in any kind of government, for the purpose 
 of removing officials who do not comply with the pop- 
 ular will, and electing others in their place. All three 
 reforms are the essence of pure democracy. 
 
 Strong and Weak Points of Initiative, Referendum and 
 Recall. 
 
 The strong and weak points of each of these in- 
 stitutions are very pronounced, depending upon the 
 end desired. It has generally been thought in the 
 past, by the best thinkers, that direct legislation could 
 be successful only in small communities like the Swiss 
 Cantons or the democracies of ancient times, em- 
 bracing a small territory, where practically the whole 
 people could meet in the forum or market place and 
 personally participate in the matters of public con- 
 cern. But in our time, with a highly intelligent peo- 
 ple, and the impediments of distance and time largely 
 eliminated by the press, the post office and the inven- 
 tions of modern science, the referendum has been 
 found to work measurably well over large areas. Many 
 think that the initiative is also likely to prove an ef- 
 ficient instrument of legislation, but it can hardly be 
 said to have passed the experimental stage. In a gen- 
 eral way it may be said that, theoretically, at least, 
 these reforms cannot make for efficiency in either 
 national or state governments, and would be abso- 
 lutely paralyzing and demoralizing in times of crises, 
 or in maintaining a dignified or stable policy in deal- 
 
 13 
 
ing with other nations. Wherever the work of the 
 specially trained expert, in government, is essential 
 to efficiency, these reforms are not likely to have a 
 salutary effect either on legislation or administration. 
 On the other hand, by their tendency to educate and 
 develop the whole people, it seems probable that the 
 initiative and referendum might lead to a higher pol- 
 itical development, if exercised in the hands of a peo- 
 ple possessed of a strong sense of justice, and who 
 will be considerate of the rights of the minority. But 
 it will be seen at once that these general considera- 
 tions suggest very deep questions not only of policy, 
 but of psychology. 
 
 In municipal matters, which are, and should be, 
 largely conducted from the point of view of a busi- 
 ness organization, and where the weakening effect on 
 the administration, even- if harmful in some respects, 
 would not be far-reaching in its results, it would seem 
 that the initiative, referendum and even the recall, 
 might prove a success. 
 
 RECALL OF JUDGES. 
 
 But our purpose is to deal specifically with the re- 
 call, and with only one phase of that problem, namely, 
 the recall of judges. 
 
 What has been said has been largely for the pur- 
 pose of developing the atmosphere surrounding the 
 problem, and to prepare the way for its better con- 
 sideration. 
 
 Notwithstanding the vital importance of this al- 
 leged reform, one of the first things which impresses 
 the investigator is the meagreness of the information 
 on the subject among the public men as well as the 
 ordinary citizens. There is scarcely any literature 
 worth considering, and what has been written is mostly 
 
 14 
 
immature and a priori reasoning, and consists almost 
 entirely of impressions and opinions. Aside from the 
 speeches in Congress, the most ambitious effort which 
 I have been able to find is an essay by Albert Fink in 
 the May (1911) number of the North American Re- 
 view, in which his principal purpose, in opposition to 
 the recall, is to prove that it is inconsistent with a 
 republican form of government, and therefore pro- 
 hibited by the Federal Constitution. This argument 
 is certainly very weak, for it makes republican govern- 
 ment synonymous with representative government; 
 but there is certainly nothing in the recall which is in- 
 consistent with representative government, however 
 much representative government might be weakened 
 by it. 
 
 Objections to the Recall of Judges. 
 
 To my mind the greatest danger in this reform lies 
 in the fact that it is an ill-considered assault upon the 
 most delicate part of our governmental machinery, and 
 tends to destroy the independence and courage of the 
 judiciary, in whom the quality of independence and 
 fearlessness has been heretofore considered of the most 
 vital necessity in protecting the liberty and security of 
 a free people. It is taking a leap in the dark, and 
 tempting fate, when nearly all of the arguments and 
 analogous precedents of history show that the step is 
 an unwise one. 
 
 Arguments for the Recall of Legislative and Adminis- 
 trative Officers Are Not Applicable to Judges. 
 
 There can be no doubt but that the movement for 
 the recall, generally including the recall of judges 
 is advocated by many excellent people. They say, with 
 much plausibility, that a public servant who does not 
 
 15 
 
carry out the will of the people, who elected him, 
 should be discharged, just as a private servant would 
 be discharged, who is disloyal to his employer. Of 
 course the word "people," as used in this connection, 
 means the "majority" or "group" which elected the 
 public servant, for he could not be expected to carry 
 out the will of the minority or group who did not elect 
 him, although such minority or group would form a 
 part of the "people." There is much force in this argu- 
 ment, when applied to the legislative or administra- 
 tive officer, for he is elected for the very purpose of 
 carrying out and making effective the policy and 
 wishes of the majority or group which elected him. In 
 a democracy, the majority should rule, and it has a 
 right to have its policy and wishes put into operation 
 by the servants which it elects. It elects the servant 
 for that very purpose, and if the servant fails to ef- 
 fectuate that purpose to the best of his ability, he is 
 faithless to his trust. 
 
 But a judge is not elected to carry out any policy of 
 any party, or the wishes of any- majority or group. 
 He is not, in any sense the servant of any majority 
 or group. He is the servant of the whole people of 
 every individual in the community as well as the whole 
 mass. He is under just as great and sacred obliga- 
 tions of duty to the poorest outcast as to the ruling 
 majority which elected him. It may become his duty 
 to thwart the will of that majority when it attempts 
 to override the constitutional rights of the minority 
 or of the individual. It may be his duty to protect 
 the poor outcast or the unpopular individual, or the 
 victim of race or religious or class prejudice, against 
 the prejudice or fury of the majority which may seek 
 his life or liberty. The judge should not be a partisan. 
 He is elected to interpret and decide the law, as it is 
 
 16 
 
written in the constitution or statutes, or if the case 
 in hand is not covered by constitution or statute, then 
 as declared by the courts of last resort, until such 
 time as that declaration is changed by constitution or 
 statute. The courts, therefore, must necessarily be 
 conservative. It is not their function to initiate legis- 
 lation or change laws to suit the ideas or whims of any 
 party or majority or group, but to declare what the 
 law is without fear or favor. This very conservatism, 
 so essential and necessary to the courts, has aroused 
 the bitterest antipathy of many who claim to be radi- 
 cal reformers.. The judge tries to find out what the 
 people or the legislature meant when they enacted a 
 constitutional provision or a statute, by an honest in- 
 terpretation of the meaning of the language used, 
 whereas these reformers insist that the judge shall 
 declare the law to be what the majority of the people, 
 for the time being, thinks it ought to be. The reform- 
 ers inveigh against judicial legislation, but more judi- 
 cial legislation, and much more erratic judicial legis- 
 lation, is the very essence of the proposed reform. 
 
 Bad Motives of Many Advocates of the Recall of Judges. 
 But in addition to those good people who advocate 
 the recall of the judges, it is most enthusiastically ad- 
 vocated by all of those elements, which, for their own 
 selfish ends, would like to see the judiciary placed in 
 a position where it could be intimidated and made sub- 
 servient to their own purposes, and also by all those 
 who would like to see the destruction of our present 
 institutions, and who believe that out of the confusion, 
 disorder and anarchy, which may result, their own 
 ideals and wild schemes of legislation, or possible revo- 
 lution or socialism, may have a chance to prevail. 
 
 17 
 
The Recall of Judges Historically Considered. 
 
 My purpose is to treat this subject somewhat his- 
 torically, but, of course, in the limits of a paper of 
 this kind, it is impossible to give more than the merest 
 sketch. 
 
 In considering the arguments for and against the re- 
 call we must start out with the fundamental assump- 
 tion that government of some kind is a necessity. 
 
 I believe Judge Baldwin (now Governor of Con- 
 necticut) is correct when he said: (American Judi- 
 ciary, p. 98.) 
 
 "Government is a device for applying the power of all to 
 secure the rights of each. Any government is good in which 
 they are thus effectually secured. That government is best in 
 which they are so secured with the least show of force. It is 
 not too much to say that this result has been worked out in 
 practice most effectually by the American judiciary through 
 its mode of enforcing written constitutions." 
 
 The Fundamental Rights of the Citizen. 
 
 The Declaration of Independence holds it to be a 
 self evident truth that men "are endowed by their 
 Creator with certain inalienable rights; that among 
 these are life, liberty and the pursuit of happiness; 
 that, to secure these rights, governments are instituted 
 among men, deriving their just powers from the con- 
 sent of the governed." I assume also that the instinct 
 of property implanted in our race indicates that the 
 right of property is a natural and fundamental right, 
 just as are the rights of life, liberty and the pursuit 
 of happiness, and that the right of property is also 
 one of the rights which governments are instituted, 
 among men, to secure. 
 
 These rights do not emanate from the state, al- 
 though, by force, it may take them away. The citizen 
 has a natural right to his life, of which the assassin 
 
 18 
 
has no right to deprive him ; he has a natural right to 
 his property, of which the robber has no right to de- 
 prive him. It is no less wrong for the state to deprive 
 the citizen of those rights than for the assassin or the 
 robber to do it. It makes no difference to the citizen 
 whether his rights are trampled on by a monarch or 
 by a majority of his fellow citizens. It is, therefore, 
 the duty of the state to protect the citizen in the en- 
 joyment of these fundamental rights, subject to such 
 reasonable restrictions as will secure the equal en- 
 joyment of the same rights in others. Civilization, 
 as we understand it, cannot exist without the reason- 
 able and proper enjoyment of these rights among men, 
 and their protection by the state. 
 
 The Necessity for Constitutions and Charters, or Funda- 
 mental Law. 
 
 I low can those fundamental rights best be secured 
 and protected? We have a country stretching from 
 ocean to ocean, and from the tropical South to the 
 frozen North. In this vast territory we have a diver- 
 sity of climate, topography, soil and resources which 
 is almost boundless. We have a population of upwards 
 of 90,000,000 of people, whose industries and wants 
 are as varied as our climate, topography, soil and re- 
 sources. Different communities have different customs, 
 methods of thought, and habits of life ; they have even 
 a diversity of traditions and ideals which the unifying 
 effect of our institutions have not been able to obliter- 
 ate. It would seem impossible for one central govern- 
 ment to wisely or efficiently legislate for, or govern, 
 such a people, in their local or domestic affairs. We 
 know that the different communities are passionately 
 attached to the principle of local self-government, and 
 that local laws which are popular in one community 
 
 19 
 
would not be tolerated and could not be enforced 
 in another. Our vast country could never have been 
 held together as a united nation were it not for the 
 prevalence of this principle of local self-government, 
 which permits different states and different com- 
 munities to live under the local laws enacted by them- 
 selves and which make them happiest. In spite of the 
 faults of our dual system of state and federal govern- 
 ments, time has shown that it was wisely conceived, 
 that it is well suited to the conditions, and that, in all 
 likelihood, it is the only system which could have suc- 
 ceeded, or which can succeed, in our varied and com- 
 plicated circumstances. 
 
 Under such varying conditions how can the funda- 
 mental rights and duties of the citizen, in his relations 
 to the nation, the state, the municipality and the in- 
 dividual, or the rights and duties of any one of these 
 entities, in relation to another, be secured and pro- 
 tected? How can the prosperity and happiness of 
 the community, and of the state and nation be best 
 attained ? With such a diversified and complex organ- 
 ization there must be fundamental laws, which define 
 and limit the spheres of activity of the different parts. 
 These fundamental laws are called constitutions and 
 charters, and each part of the great organism must 
 move in its own proper sphere, and must not conflict 
 or interfere with the others. Otherwise there will be 
 confusion and chaos. 
 
 If it were not for the restraints of our constitutions 
 and charters, every one knows that practically every 
 state and community would have hostile laws pro- 
 hibiting therein the equal rights of other states and 
 communities. We would have states and communities 
 exercising their ingenuity in devising legislation which 
 would give them some advantage over the others, in 
 
 20 
 
erecting tariff Avails, in subjecting one another to 
 petty discriminations and annoyances, and in resort- 
 ing to all kinds of devices inspired by rivalry and com- 
 mercial competition and enmity. We would have cer- 
 tain powerful classes in a single state or community, 
 depriving, by legislation, others, of a weaker class, of 
 their risrhts to the ballot, of their right to participate 
 in the benefits of the school funds, and of other rights 
 most essential to liberty, in fact, reducing their weaker 
 fellow citizens to a condition little better than serf- 
 dom. EA 7 eryone knows, that even now, with our con- 
 stitutional limitations, it is hard to prevent these 
 things. What would it be without them ? Instead of 
 national patriotism, local patriotism would run riot, 
 and would often revel in inspiring and inflaming the 
 Avorst instincts of the community. The demagogue 
 Avho would appeal to local selfishness and plausibly sug- 
 gest ways and means of building up the local com- 
 munity at the expense of other communities or who 
 would suggest some slick scheme for repudiating just 
 obligations one that would not appear too raw, and 
 with which those of easy conscience would be satisfied 
 would hold a high place in some communities. Every 
 reader of history knows that this is a mildly drawn pic- 
 ture. It could be made much more vivid. But we 
 will deal only with naked facts. The facts stated are 
 not imaginary. These things have all happened many 
 times in this country, not only before the adoption of 
 our Federal Constitution, but since, and even in our 
 oAvn time. 
 
 21 
 
Decisions of the Courts Are Necessary to Preserve the 
 Integrity of the Fundamental Laws. 
 
 The major part of the decisions of our courts on 
 public questions have been rendered in pointing out 
 transgressions by some state or local legislature, or 
 by some official of the rights secured by these consti- 
 tutional limitations. These cases have generally arisen 
 in an action wherein the single citizen has sought to 
 maintain his rights against state or community legis- 
 lation, or against a numerous group of other citizens. 
 The citizen makes his fight alone, but he, in reality, 
 represents every other citizen whose rights may at some 
 time be similarly invaded. The numbers and the noise 
 are often on the side of the unjust invasion, and often 
 in such cases, if the court decides in favor of the in- 
 dividual, and against the state or the community 
 or the group, there goes a roar that the rights of 
 the people have been stricken down by the court, 
 whereas the lone citizen, in a true sense, is the true 
 representative of the people, in upholding the constitu- 
 tion which they themselves adopted in their calm and 
 deliberate action, when uninfluenced by passion or 
 sinister motives. 
 
 And in spite of abuse and detraction, in spite of 
 politics which has sometimes influenced their decisions, 
 how beneficient is the influence of the judiciary in such 
 cases ! It acts as a buffer between the rights of the 
 citizen and lawful authority on one side, and the 
 passions and prejudices of the majority on the other. 
 When a constitutional right is invaded, if there was 
 no court to decide the controversy, what would hap- 
 pen? With our divided sovereignty and passion for 
 local self-government and our constitutional limita- 
 tions, this would be a very serious question. To take 
 
 22 
 
a most likely, and, at the same time, an extreme case 
 for illustration, suppose a Southern State had en- 
 acted some law which ruthlessly invaded the rights of 
 its colored citizens. If a citizen should be deprived 
 of his rights and he had no court to resort to, he would 
 most likely appeal to the Federal Executive. The 
 Executive would have to decide the matter, and if 
 it found that the right had been invaded, it would 
 be its duty to protect the citizen. The only way in 
 which this right could be enforced against the settled 
 policy of a state would be by the strong arm of the 
 Federal Government. If this were attempted, in the 
 inflamed state of the public mind, it would most likely 
 lead to resistance and maybe to rebellion. Now, the 
 court is not only a proper tribunal to sit in judgment 
 on the questions of the invasion of such rights, but it 
 is also a safety valve, where the passions and preju- 
 dices, if they exist, may expend themselves. It is a 
 tribunal which can be resorted to without the neces- 
 sity of force. There, if the state has invaded the 
 rights of the citizen, it must show some justification 
 other than prejudice or passion. It must put up its 
 best arguments in defense of its course, and there the 
 poor and friendless negro has an equal chance with 
 the powerful state to set forth his arguments in sup- 
 port of his rights, and to submit the arguments of his 
 powerful adversary to the test of right and of law. 
 Then, after calm deliberation, uninfluenced by any- 
 thing other than the right and the law, the court is 
 supposed to give its judgment. If the decision is in 
 favor of the weaker party there may be anger and 
 abuse, but it will generally be visited on the court, 
 and will not lead to the open resistance of lawful 
 authoritv. 
 
There Can Be No True Liberty Without Constitutional 
 
 Restraints No Man or Group of Men Is Good 
 
 Enough or Fit to Exercise Absolute and 
 
 Irresponsible Power Over the Lives 
 
 and Liberties of Their Fellows. 
 
 It is the object of our Constitution to embody the 
 guarantees and limitations which protect the funda- 
 mental rights of the citizen, and to determine the re- 
 spective spheres of activity of the nation, states and 
 local governments, which constitute either a grant 
 or limitation on their respective rights and powers. 
 It is the duty of the legislature to respect those rights, 
 and the duty of the executive and the judiciary to 
 enforce them. 
 
 The constitutional rights thus guaranteed and 
 limited are of especial importance to the poor and the 
 weak, because the rich and strong are better able to 
 take care of themselves, and there can be no liberty 
 or security, in the true sense, unless those rights are 
 protected from invasion by the government as well 
 as by individuals. 
 
 The government should be powerless to invade 
 those rights, whether it be the government of a mon- 
 arch or the government of a majority. In some re- 
 spects the tyranny of the majority is the more dan- 
 gerous. In the case of the monarch there is the sense 
 of individual responsibility and individual conscience, 
 and the dread of unpopularity all of which tends to 
 restrain him from the wanton abuse of power. As is 
 well known there is a woeful lack of this sense in 
 majorities and masses of people. It has been truly 
 said that the evil and corrupting influence of irrespon- 
 sible power on the human character is one of the best 
 known facts of history. And this is just as true when 
 
 24 
 
applied to a majority or a group as when applied to 
 an individual. It is a truism that no man or group 
 of men are good enough or fit to exercise absolute 
 and irresponsible dominion over the lives or liberties 
 of their fellows. It is, therefore, proper that the 
 majority as well as the minority should be subject to 
 constitutional restraints, which have been enacted by 
 the people themselves in their calm and sober moments, 
 and which can be invoked and enforced in moments 
 of excitement and passion by a just and calm and 
 elevated judicial tribunal, which will have the cour- 
 age and independence to protect the rights of the 
 minority or the individual against the passions and 
 prejudices of the majority. Without such restraints 
 there can be no true liberty, and unless there is an in- 
 dependent, impartial and courageous tribunal which 
 will protect the citizen when it is sought to break 
 through these restraints, they may prove of little 
 value. 
 
 How Did We Get Our Judicial System? 
 
 Our Constitutions, National and State, have invar- 
 iably and wisely, followed the distribution of the 
 powers of government formulated and advocated by 
 Montesqui; namely, the legislative, the executive and 
 the judicial. In commenting upon these powers, Mon- 
 tesqui said: (Book XI, Chap. V.) 
 
 "There is no liberty if the judicial power be not separated 
 from the legislative and executive. Were it joined with the 
 legislative, the life and liberty of the subject would be exposed 
 to arbitrary control; for the judge would then be the legisla- 
 tor. Were is joined to the executive power the judge might be- 
 have with violence and oppression. There would be an end of 
 everything, were the same man or the same body, whether of the 
 nobles or of the people, to exercise the three powers; that of 
 enacting laws, that of executing public resolutions, and of 
 trying the causes of individuals." 
 
 25 
 
It will be noticed, in passing, that the adoption of 
 the proposed constitutional reforms of the initiative, 
 the referendum and the recall will some day put Mon- 
 tesqui's dictum to the test. 
 
 Probably no generation that ever inhabited this 
 earth were better versed in the history and theory of 
 government than the men of the revolutionary and 
 post-revolutionary period. With them it was a living, 
 practical problem as well as a theoretical one. They 
 had lived through the disorder and anarchy of a long 
 war, brought on by conflicting theories of governmen- 
 tal rights and duties, and after that war they went 
 through another period of disorder, anarchy and ex- 
 periments in government, which produced a group 
 of public men whose ability and sagacity have never 
 been surpassed. 
 
 In 1780 Massachusetts adopted one of the first state 
 constitutions, and it contains two paragraphs which 
 have become famous, as embodiments of political wis- 
 dom. 
 
 In one (Part First Art. XXX) it is declared that 
 
 "In the government of this commonwealth, the legislative de- 
 partment shall never exercise the executive and judicial powers, 
 or either of them; the executive shall never exercise the legisla- 
 tive and judicial powers, or either of them; the judicial shall 
 never exercise the legislative and executive powers, or either of 
 them ; to the end it may be a government of laws, and not of 
 men." 
 
 And in the same document occurs this remarkable 
 paragraph which would almost seem to have antici- 
 pated our present predicament : 
 
 "It is essential to the preservation of the rights of every 
 individual, his life, liberty, property and character, that there 
 be an impartial interpretation of the laws and administration 
 of justice. It is the right of every citizen to be tried by judges 
 as free, impartial and independent as the lot of humanity will 
 admit. It is, therefore, not only the best policy, but for the 
 
 26 
 
security of the rights of the people and of every citizen that 
 the judges of the Supreme Judicial Court should hold their of- 
 fices as long as they behave themselves well." (Part First, 
 Art. XXIX.) 
 
 These declarations of the Massachusetts Constitu- 
 tion were the result of the long and bitter experience 
 of the colony in its struggle for a government of law 
 as against a government of men. 
 
 In the early New England Colonies the common law 
 of England was rejected. As cases arose they were 
 decided by such rules as the magistrates might think 
 right and warranted by the precepts found in the 
 Bible. "In early Massachusetts the written pleadings 
 often referred to the Bible, quoting a text from it as 
 an authority, just as citations now might be made in 
 a lawyer's brief, from a legal treatise or reported 
 case." (Baldwin, pp. 4-5.) 
 
 The Assemblies acted as courts as well as legisla- 
 tures, deciding controversies between private parties 
 on what was considered equitable principles. As Judge 
 Baldwin says : 
 
 "This mingling of judicial with legislative functions is a 
 thing to be tolerated only while the foundations of government 
 are being laid. As the Eoman plebian, in the days before the 
 Twelve Tables, calmored for a known and certain law, so the 
 common people of the early colonies insisted that from a similar 
 want they held their rights too much at the will of their rulers." 
 (Baldwin, p. 5.) 
 
 And he quotes Governor Winthrop, as writing, as 
 early as 1639, these words: 
 
 "The people had long desired a body of laws and thought 
 their condition very unsafe while so much power rested in the 
 discretion of magistrates." 
 
 In the Royal Provinces the judges were appointed 
 by the crown and removable at pleasure. In the Char- 
 ter Colonies they were appointed by the legislative 
 bodies and the tenure was a short one, generally a 
 
 27 
 
year. There was a persistent struggle, on the part of 
 the colonies, to secure greater permanency of their 
 judges so as to afford them greater protection against 
 the royal authorities, but all such attempts were nega- 
 tived and defeated by the home government. 
 
 At the same time, the same kind of a struggle was 
 going on in England. The occasions on which the 
 crown could not secure an interpretation of the law 
 favorable to its claims were very rare, for it could 
 remove the judge and appoint a subservient one, as 
 in the case of the removal of Sir Edward Coke, and 
 it even punished jurors who had the temerity to bring 
 in a verdict against it. But by the Act of Settlement 
 of 1673, the power of the crown to remove or recall 
 a judge, at its pleasure, was taken away and the judi- 
 cial tenure was made dependent on good behavior. 
 Parliament, however, could, "by address," compel the 
 King to remove a judge. But even then all judicial 
 commissions expired on the death of the monarch. 
 This was changed in 1760, so that the judge's tenure 
 did not terminate with the death of the monarch, 
 and his salary, which had been theretofore paid by the 
 King from his "Civil List," was assigned to a per- 
 manent charge. 
 
 These reforms gave England a system of judges 
 whose decisions it was beyond the power of the execu- 
 tive to tamper with, and one that has reflected just 
 glory on that country, and which is an object of praise 
 by the critics of our own system. 
 
 The Constitution Was the Refuge of the Country From 
 the Evils of Unrestrained Democracy. 
 
 After the close of the American Revolution, as is 
 well known, there existed a condition of things in this 
 country which bordered on anarchy. There was no f ed- 
 
 28 
 
eral judiciary, and no way of forcing the states to com- 
 ply with the Articles of Confederation. The country 
 was poor and the debtors far outnumbered the credi- 
 tors. The people in their new found liberty did not un- 
 derstand what constitutional restraint meant. It was a 
 period of great unrest, like the present, and the coun- 
 try was full of enthusiastic reformers with pet ideas 
 and schemes for righting the wrongs of the world. 
 The debtors controlled the legislatures. The legis- 
 latures passed laws to enable debtors to cheat their 
 creditors. In one of these states, Rhode Island, oc- 
 curred one of the first decisions holding an Act of 
 the Legislature void, and what might be called the 
 first case of recall. In 1786 the General Assembly 
 passed an act to support the paper money of that 
 year's issue, and ordained that anyone declining to 
 receive it in payment for goods sold at par was liable 
 to a qid tarn action, to be tried without a jury. A 
 tradesman was sued for refusing to accept the paper 
 money. His counsel pleaded the unconstitutionally 
 of the act. The Court consisted of five judges, ap- 
 pointed by the General Assembly, sustained the plea, 
 treating the Charter from Charles II (for the state 
 had no other constitution), and the long usage under 
 it, as having established trial by jury as "a funda- 
 mental and indefeasible right." The decision caused 
 an outcry against the judges, their removal was de- 
 manded, and they were summoned before the General 
 Assembly, their creator, to explain the reasons for 
 their decisions. The judges protested against their 
 removal from office until after a formal trial. As 
 their offices were about to expire, they were not im- 
 peached, but the ensuing session of the Assembly 
 elected others in their place. The condition of the 
 country in the period immediately preceding the 
 
 29 
 
adoption of the Federal Constitution is so truly, 
 graphically and succinctly described by Paul Leices- 
 ter Ford that I cannot do better than quote from him. 
 In speaking of the new State Governments, formed 
 after the Revolution, he says: 
 
 "Remembering with hatred the alien checks on the popular 
 will which the King's negative and courts so often, and some- 
 times with cruelty, imposed on the people, when these represen- 
 tative bodies came to frame new governments, they practically 
 lodged all powers in the legislative department hitherto the 
 only one which had approximated to the people's will and made 
 the executive and judicial branches its creatures. 
 
 "Unchecked by the balance usually supplied by manufacturing 
 or commercial interests, the landholding classes, by their legis- 
 latures, in turn unchecked by co-ordinate departments, ran riot. 
 Paper money and tender laws robbed the creditor, regrating and 
 anti-monopoly acts ruined the trader. When the weak state 
 courts, true to the principles of justice, sought to protect the 
 minority, the legislatures suspended their sittings, or turned 
 the judges out of office. * * * For the moment a faction of 
 agriculturists reigned supreme, and to the honest and thought- 
 ful, democracy seemed to be digging its own grave, through 
 the apparent inability of the majority to control itself. 
 
 "Fortunately injustice to, and robbery of, fellow citizens, 
 eventually injure the wrongdoer as well as the wronged. A time 
 came when the claims of the creditors had been liquidated and 
 the goods of the traders had been confiscated, and the former 
 refused further loans and the latter laid in no new stocks. The 
 capitalist and the merchant were ruined or driven from busi- 
 ness, and it was the landholder, unable to sell, to buy, or to 
 borrow, who was the eventual sufferer. Such was his plight 
 that he could not in many cases sell enough of his products 
 to get money to pay his taxes, and this condition very quickly 
 was brought home to his own instruments of wrongdoing, the 
 legislatures, the evils they had tried to fasten on the minority. 
 Taxes were unpaid, and except where the conditions were fac- 
 titious, the state treasuries were empty. Finally, in an at- 
 tempt to collect the taxes in Massachusetts, a formidable re- 
 volt of taxpayers against the state government was precipitated. 
 Everywhere the state legislatures had become objects of con- 
 tempt in just so far as they had sinned against classes of citi- 
 
 30 
 
zens, and the people -were threatened with a breakdown of all 
 government by the misuse of majority power. It has been the 
 fashion of historians to blame the Congress of the Confedera- 
 tion with the ills of 1781-1789, but that was an honest, and, 
 when possible, hard working body, and the real culprit was not 
 the impotent shadow of national government, possessing al- 
 most no powers for good and therefore scarcely any powers 
 for evil, but the all powerful State Legislatures, which proved 
 again and again, as Jefferson asserted, that one hundred and 
 seventy-three despots would surely be as oppressive as one." (In- 
 troduction to The Federalist, pp. IX-X.) 
 
 The revolt of taxpayers, which Mr. Ford refers to, 
 was "Shay's Rebellion." It was put down by Governor 
 James Bodwoin. He saved the State, but his service 
 to the State in the establishment of order made him 
 so unpopular that he was "recalled" at the next elec- 
 tion. Similar insurrections took place in Vermont 
 and Xew Hampshire. 
 
 Xot only were court sittings suspended and judges 
 removed by the Legislatures, but in a number of in- 
 stances judges resigned their offices or signed agree- 
 ments not to hold courts, for a given time, at the be- 
 hest of mobs; which was an indirect and summary 
 method adopted for obtaining a suspension of the 
 laws. It was these disturbances that aroused the peo- 
 ple of the necessity of forming the Federal Constitu- 
 tion and Government. Mr. Ford says : 
 
 "It was fear that Shay's revolt would spread to within the 
 borders of its own state that made the New York Legislature 
 vote the call for the Federal Convention, and the fright it gave 
 Massachusetts was the cause for the assent of her assembly to 
 what it had negatived but a few months before." 
 
 John Quincy Adams said that the Constitution was 
 "extorted from the grinding necessity of a reluctant 
 nation." 
 
 The trials and tribulations through which the peo- 
 ple passed in those days made conservatives and 
 even reactionaries out of many men who had been 
 
 31 
 
ardent and zealous democrats. This reaction found 
 its expression in the Federal Constitution, and in 
 the various State Constitutions which were adopted 
 about this time. It may have been fortunate that 
 the country passed through such trying times, for 
 the bitter experience served, as no other school could, 
 to educate the people in the virtues, the blessings and 
 the necessity of constitutional government. 
 
 The State Legislatures had come to be looked upon 
 as the main causes of the evils with which society was 
 afflicted, and as the tools of the reckless and erratic 
 majorities and of the demagogues. Therefore we find 
 the framers of the Federal Constitution bent upon 
 curbing their powers of interference, not only with 
 the rights of the central government, but also with 
 the rights of the minority and of the individual. We 
 find provision after provision intended to prevent the 
 repetition of the excesses of the period. Hence the 
 provisions preventing the states from coining money, 
 emitting bills of credit, passing tender laws, bills of 
 attainder, ex post facto laws, and laws impairing the 
 obligations of contract. We may also guess that this 
 experience furnished the motive which dropped the 
 principle of the recall, which had appeared in the 
 Articles of Confederation. But this influence is es- 
 pecially seen in the "strength of the executive" and 
 the "stableness and independence of the judiciary" 
 established by the Constitution. 
 
 I have dwelt at some length on the confederation 
 period as an illustration of the necessity for constitu- 
 tional limitations in democracies and republics, be- 
 cause of its nearness to our own times, because it was 
 a period of willful disregard of those constitutional 
 restraints which, in our day, seem so odious in the eyes 
 of some of our modern reformers, who wish the law 
 
 32 
 
interpreting, as well as the law-making power, to be 
 entirely responsive to the popular will, and because 
 the people involved were our own people almost the 
 immediate progenitors of our best citizenship. Those 
 alleged reformers, w r ho now so bitterly denounce the 
 Constitution as a reactionary document, fail to tell 
 their hearers of the hopeless anarchy and bankruptcy 
 that preceeded it, which was produced by the un- 
 restrained, unscrupulous and erratic rule of popular 
 majorities, and how the constitution saved the nation 
 and made it a place fit to live in ; how it lifted the 
 nation, the states and the people out of the prevailing 
 anarchy and bankruptcy and started them on a career 
 of a century and a quarter of unexampled prosperity. 
 I have purposely refrained from turning back to 
 the histories of the republics of Athens and Corinth 
 and medieval Italy, which are full of examples of the 
 unscrupulousness, the bigotry and the selfish indif- 
 ference to justice and humanity, of which a majority 
 may become guilty, partly because those were peoples 
 of a different race, and partly because those times are 
 far removed from our own. It might be claimed that 
 the world has progressed since those times. But the 
 people of the Confederation period are only a few 
 generations removed from ourselves, and they were 
 people of the Anglo-Saxon stock. Were they, after 
 all, so different from the people of our own day? 
 
 The History of Our Country Since the Adoption of the 
 Constitution Furnishes Many Examples Showing 
 
 the Necessity of Constitutional Restrainst. 
 
 The history of our country, since the adoption of 
 
 the Constitution, also affords many examples of the 
 
 moral weakness of majorities, just as flagrant as those 
 
 of the Confederation, and, if it were not for the re- 
 
 33 
 
straints of our Constitution, the results of the vagaries 
 and latent perversity of the descendents of the citi- 
 zens of the Confederation would have been just as 
 odious. We need not go back as far as the period of 
 the Confederation for glaring examples of the in- 
 justice and dishonesty which may become prevalent 
 in states and democratic communities, or for ex- 
 amples of the oppression of the minority by the ma- 
 jority, if unrestrained by constitutional restrictions. 
 We may instance, particularly, the contest between 
 the "Belief" and "Anti-Relief" parties and the U 01d 
 Court" and "New Court" parties in Kentucky from 
 1818 to 1828, and the State Repudiation contest in 
 Mississippi from 1841 to 1855. Indeed, we need only 
 go back to a time within the memory of men at this 
 table, to the Abolition period, the Know-Nothing 
 period, the Ku Klux period, the Greenback period, 
 the Populistic period, the Anti-Chinese period, and 
 the A. P. A. period, and a slight exercise of the imag- 
 ination will suggest what unconscionable things might 
 have happened in our country, and in many of our 
 best communities, were it not for the sobering 
 restraints of our Constitution. And it will be re- 
 called also, that many of the worst passions and the 
 wildest schemes of those periods occurred in com- 
 munities like those of the Southern States and the 
 Middle West, which were distinctively American or 
 Anglo-Saxon, and whose populations were largely the 
 direct descendents, only a generation or two removed, 
 from the people of the Confederation. 
 
 Repudiation in Mississippi. 
 
 In Mississippi the State repudiated $15,000,000 in 
 bonds for which it had become deliberately respon- 
 sible, and for which the bondholders had paid full 
 
 34 
 
value, and in some cases a premium, relying upon 
 the pledge of the credit of the state. Repudiation 
 and Anti-Repudiation were party issues for many 
 years. In 1852, the validity of these bonds came be- 
 bore the Court of Appeals, and the Court had the 
 courage to sustain their validity. In the state elec- 
 tion of the following year one of the judges of the 
 the Court sought re-election. The ticket of the Re- 
 pudiationists was triumphantly elected, and the judge 
 who had decided against the state was punished by 
 being ignominiously defeated. The state, later, by 
 popular vote, passed a constitutional amendment for- 
 bidding the payment of the bonds. 
 
 The "Relief" and "Anti-Relief" and the "Old Court" and 
 "New Court" Contests in Kentucky. 
 
 In the "Relief" and "Anti-Relief" contest in Ken- 
 tucky, the courts were also the storm center. It is 
 one of the most exciting episodes in American con- 
 stitutional history. Between 1818 and 1828, most of 
 the states in the Mississippi Valley were possessed with 
 the mania of producing prosperity by the issue of 
 paper money through the medium of banks in which 
 the state was, generally, a large stockholder, and for 
 which the state was supposed to have pledged its 
 credit, morally, if not legally. The most flagrant 
 abuses of this banking system occurred in Ohio, Illi- 
 nois, Missouri, Tennessee and Kentucky, but the most 
 eventful history connected with the mania was enacted 
 in Kentucky. As Professor Sumner says (Life of 
 Andrew Jackson, p. 119) : 
 
 "It was the outcome of the application of political forces 
 to the relations of debtor and creditor. It necessarily followed 
 that political measures were brought into collision with con- 
 stitutional provisions, and with judicial institutions, or the in- 
 
 35 
 
terpreters and administration of the same, on such points as 
 the public credit, the security of contracts, the sanctity of vested 
 rights, the independence of the judiciary and its power to pass 
 on the constitutionality of laws/' 
 
 The state was flooded with paper money, issued 
 by the Bank of Kentucky, in which the State was a 
 large stockholder. This bank had to suspend, and the 
 cry was for the issue of more paper money and the 
 suspension of specie payments. As a "relief" measure 
 the legislature chartered a new bank called the Bank 
 of the Commonwealth of Kentucky, which was author- 
 ized to issue notes to the extent of $3,000,000. It had 
 no stockholders, but its president and directors were 
 elected annually by the legislature'. Its-^nates were 
 issued on loans on mortgage security 'artid Vere ap- 
 portioned among the counties in proportion to their 
 taxable property. It was to be a truly philanthropic 
 and popular institution. Loans were to be made to 
 those who needed them "for the purpose of paying 
 his, her or their just debts" or to purchase the pro- 
 ducts of the country for export. No private banker 
 was to reap any profit from its operations. All the 
 profits were to go to the state. Its notes were legal 
 tender to and from the state. The only real capital 
 ever invested in it, was $7,000, appropriated by the 
 Legislature to buy books, paper and plates for print- 
 ing the notes. As Professor Sumner says: "It was, 
 therefore, just one of the grand swindling concerns 
 common at that period." As a further "relief" meas- 
 ure in connection with this bank, the Legislature 
 passed a "replevin" and "endorsement" law extending 
 the time of the debtor two years, in which to redeem 
 from a sale, under execution, unless the creditor 
 would endorse on the note his willingness to take the 
 notes of the Bank of the Commonwealth of Kentucky 
 
 36 
 
in payment, if the debtor could pay them. In any 
 event, the debtor's time was extended one year. A 
 little later the Legislature passed an act which pro- 
 hibited the sale of land, on execution, for less than 
 three-fourths of its value, as appraised by a jury of 
 neighbors. Of course this jury would be composed 
 of men in the same predicament as the owner of the 
 land. In 1822 Judge Clark of the Circuit Court of 
 Kentucky declared the replevin law was unconstitu- 
 tional. The judge was cited before the Legislature, 
 and an attempt was made to have him removed by the 
 Governor, on the resolution or address of the Legis- 
 lature. The Constitution required a two-thirds vote 
 to accomplish such a removal, and the attempted re- 
 moval failed for lack of the necessary two-thirds, the 
 vote standing fifty-nine for removal and thirty-five 
 against. The Governor of the State denounced the 
 decision of the court, and the people very generally 
 regarded the decision "as a usurpation by the judges, 
 and an assault upon their liberties," (Sumner, p. 126). 
 In 1823, in the face of this clamor and a hostile 
 Legislature, the Court of Appeals affirmed the un- 
 constitutionally of the law. The Legislature answered 
 this decision of the court by declaring that the law 
 u-tix constitutional. The issue was thus thrown into 
 the political arena. 
 
 Professor Sumner says, (p. 126) : 
 
 "The relief system thus brought directly to the test the 
 power of a system of constitutional guarantees, administered 
 by an independent judiciary to protect rights against an in- 
 terested and corrupt majority of debtors, which was using its 
 power, under democratic-republican self-government, to rob the 
 minority of creditors." 
 
 The state election in 1824 was fought on the issue 
 of electing a legislature which should have the neces- 
 sary two-thirds required by the Constitution to adopt 
 
 37 
 
an address to the governor, requiring him to remove 
 the judges who had decided against the constitution- 
 ality of the "relief" laws. The "Relief" party 
 declared "that liberty and republicanism were at stake 
 and that the contest was to see whether judges should 
 be above the law." (Sumner, p. 127). Plainly, it was 
 proposed to construe the constitution by popular elec- 
 tion. The new legislature summoned the judges before 
 it to show cause why they should not be removed, but 
 they made such a powerful defense that the "Relief" 
 party, although it had a good majority, could not con- 
 trol the requisite two-thirds vote. Foiled in its attempt 
 to adopt an address to the Governor by a two-thirds 
 vote, the Legislature then adopted the revolutionary 
 method of trying to legislate the Court out of office 
 by repealing the law under which the Court was or- 
 ganized, and it immediately passed a new act creating 
 a new Court of Appeals. The old Court denied the 
 constitutionality of the repealing act, and continued 
 to do business. The new Court organized and seized 
 the court records and held them by military force. 
 The moderation of the old Court party was all that 
 prevented civil war. Both Courts continued to hear 
 and decide cases. New appeals from inferior courts 
 were entered in one or the other Appellate Court, ac- 
 cording to the court which the appellant's counsel 
 regarded as the rightful tribunal. The inferior 
 tribunals were in despair as to which court to obey. 
 
 In the meantime, the conditions of business and pol- 
 itics were deplorable. Sumner quotes a writer in Niles 
 Register (23 Niles, 337) as saying: 
 
 The Bank of the Commonwealth of Kentucky "has nearly 
 destroyed all commerce or trade, extinguished personal credit, 
 and broken down confidence between man and man, as well 
 as damped and depressed the industry of the State, but the 
 
 38 
 
people are beginning to get tired of its blessings, and its paper 
 mill will soon cease working, leaving a debt, however, due 
 to it from the poorest of the people to the amount of two and 
 a half to three millions of dollars." 
 
 People left the State in great numbers and very 
 few came in. In 1825, Governor Desha, a partisan 
 of the New Court party, in his message to the Legis- 
 lature, claimed that this emigration from the State 
 was due to the decisions of the courts. 
 
 Sumner says (pp. 127-8) that 
 
 "Two classes of persons were driven from the State by the 
 Eelief System; (1) those who wanted by steady industry and 
 accumulation, without borrowing, to acquire capital, and to be 
 secure in the possession of it, and (2) those who could not, 
 under the prevailing depression, work off the mortgages which 
 they had eagerly given to the Bank of the Commonwealth for 
 its notes, in the hope of thus escaping from old embarrass- 
 ments. After five years their condition was hopeless, and if 
 they had any energy they started westward to begin again." 
 
 In the state election in 1826, the Old Court party 
 carried both houses of the Legislature. An act was 
 passed, over the Governor's veto, declaring the act 
 abolishing the old court unconstitutional and void. 
 The Replevin Law was also repealed, and Kentucky 
 immediately entered upon a career of sanity and pros- 
 perity. 
 
 In speaking of the swindle of the Bank of the Com- 
 monwealth and the heavy losses it entailed, Professor 
 Sumner says: 
 
 "Who got the gain ! It seems that there must have been private 
 and personal interests at stake to account for the rage which 
 was excited by these decisions, which touched this bank, and 
 by the intensity of friendship for it, which was manifested by 
 a leading political clique." 
 
 39 
 
The Cries: "You Distrust the People," "If the People Are 
 Competent to Elect Judges They Are 
 
 Competent to Recall Them." 
 
 If such things are likely to happen in communities 
 with traditions of liberty and constitutional rights and 
 restraints, what may we expect in times of crises or 
 agitation, in communities where large masses of the 
 population are new to the country and its institutions, 
 and have no such heritage? I do not mention these 
 things in disparagement of democratic government 
 as compared with any other kind of government. But 
 the great shibboleth of the advocates of the recall of 
 the judges, and about their only argument against 
 it are these : "You distrust the people," and "If the peo- 
 ple are competent to elect judges, they are competent 
 to recall them." In most cases this is merely "lip ser- 
 vice," and insincere flattery of the people. In most 
 cases it is doubtful if those who make these declara- 
 tions, in their own hearts, believe them to be valid 
 arguments in favor of the recall of the judges, and 
 many of them will privately admit that they do not 
 believe the people are competent to elect judges, and 
 that the popular election of judges is the greatest 
 weakness of our judicial system. Are the people bet- 
 ter qualified to elect judges than mayors, supervisors 
 and members of the legislature? All of these officers 
 are selected from the citizens of a single city ; some 
 from small districts or neighborhoods, where nearly 
 everyone is supposed to know, or to know all about, 
 his neighbors. These same persons who are shocked 
 if you express the belief that the people are not qual- 
 ified to elect judges, believe that in the great majority 
 of instances the people have made a dismal failure in 
 selecting such other officers. But the selection of good 
 judges is the most difficult and important task the 
 
 40 
 
people are called upon to perform. The judge should 
 be a man of special qualifications, which can be 
 properly passed upon only by those who have watched 
 him in the practice of the law. These qualifications 
 do not come intimately under the public eye, and a 
 candidate who is a good "mixer," who is a "hale fel- 
 low" with large numbers of people, who is "magnetic," 
 and who belongs to numerous societies and organiza- 
 tions, is the man who will usually be elected over a 
 man better endowed with the solid attainments and 
 traits of character which go to make a good judge. 
 If a doctor were to be selected, either to treat a pri- 
 vate case, or to stamp out an epidemic, the absurdity 
 of leaving the choice to the competition of a popular 
 election would be apparent to most people. It is no 
 disparagement of the people to say that they would 
 be likely to make a bad selection, because they have 
 not the requisite information to make the choice. It is 
 little less absurd to impose upon the people at large 
 the duty of electing judges. They cannot have the 
 requisite knowledge or discrimination to make the best 
 selections. The very. parties who are responsible for 
 this proposal to recall the judges have given the 
 strongest proofs of their own belief in the inability 
 of the people to elect the best judges, for they, them- 
 selves, have proposed another amendment to the Con- 
 stitution, to be voted on at the same time with the re- 
 call amendment, whereby they propose to take from 
 the people the power of electing members of the Rail- 
 road Commission a judicial office and conferring the 
 power of appointment upon the Governor. And these 
 same parties who are responsible for the proposal to re- 
 call the judges have given another striking proof of 
 their insincerity and of their own distrust of the people, 
 by the manner in which they have manipulated this 
 
 41 
 
proposed recall amendment. As they well know, there 
 were many advocates of the recall of the legislative and 
 executive officers, who did not believe in the recall of 
 judges. Representatives of this latter class beseeched 
 the legislators, and the powers behind the legislators, 
 to submit the different propositions to the people sep- 
 arately. Could they not trust the people to vote dis- 
 criminately on such simple propositions as these ? And 
 was not that the proper and honest way to let the 
 people say how far they would stand for the recall? 
 But the reformers turned deaf ears to these entreaties. 
 They insisted on compelling all who believed in any 
 kind of a recall to swallow the recall of the judges also, 
 or lose all chance for any recall legislation. 
 
 The Argument Against the Recall of Judges is Not an 
 Argument Against Popular Government. 
 
 Personally, I am a firm believer in democratic gov- 
 ernment, and a follower of Jefferson in almost every- 
 thing except his attitude toward the judiciary.* On 
 that subject, I believe he was wrong. But his error, 
 in that respect, may be excused by the great provoca- 
 tions and the exceedingly bitter partisan strife of his 
 day, when practically all of the judicial offices were 
 filled by partisans of the opposite party. So also, there 
 are palliating circumstances for the errors of the sin- 
 cere advocates of the recall. Judges are human and 
 
 Note. Down to the year 1832, no State provided for the 
 election of judges by popular vote. In that year, in the 
 Constitutional Convention of Mississippi, Mr. Henry S. Foote, 
 afterwards U. S. Senator, and Governor of the State, induced 
 its adoption. It rapidly spread to other States. In Mr. 
 Foote's "Reminiscences," published in his later years (1874), 
 he expressed regret at his part in this change. See his state- 
 ment, Appendix No. 1. 
 
 It is curious to note that Mississippi was also the first 
 State to abandon the popular election of judges and to re- 
 turn to the appointive system. By the Constitution of 1890, 
 the Governor appoints and the Senate confirms. 
 
 42 
 
make mistakes; some have been bad, and it is to be 
 presumed that others will be bad; but, on the whole, 
 and in a great majority of cases, our judges have been 
 good men; and it is not necessary to burn down the 
 barn in order to get rid of the rats. 
 
 It is not a conclusive argument against popular 
 government, or democracy, to show that it has, many 
 times in the past, been guilty of tyranny, oppression, 
 injustice and temporary excesses. What form of gov- 
 ernment has been guiltless of them? Neither is it a 
 conclusive argument to show, as is often done, that 
 popular governments have furnished many examples of 
 misgovernment, of weak government; and of unwise, 
 dishonest and even stupid legislation. What form of 
 government has been free from these? To admit all 
 the sins which have been charged against popular gov- 
 ernments, or democracies, is simply to admit that the 
 majorities which have controlled them, have been 
 composed of men possessed of all the frailties of men. 
 But when we admit this much, will not popular gov- 
 ernment measure up well and compare very favorably 
 with the monarchies, oligarchies and aristocracies 
 which, for thirty centuries, have furnished the great 
 majority of the dreadful examples which show, as 
 Oxenstiern said, "With how little wisdom the world 
 is governed!" The great majority of the examples of 
 tyranny, of ruthless oppression, of wickedness, of 
 dishonesty, of spoilation and of stupidity which have 
 occurred in the world's history, have not been fur- 
 nished by popular governments or governments by 
 majorities, but by governments of minorities. Who 
 that has read history can honestly assert that the rule 
 of the minority, the government of the monarchy, 
 or of the oligarchy, or of the aristocracy, has shown 
 
 43 
 
that it is more worthy of confidence than the rule of 
 majority f 
 
 On the other hand, the history of our own country 
 is full of examples of the wisdom and beneficence of 
 majority government. But what of that? Is that 
 any argument for the proposition that the majority 
 should be left absolutely free to enact its will, on all 
 occasions, unrestrained by such wholesome and reason- 
 able restraint as, in times of calm judgment, may be 
 dictated by honesty and good policy? Every student 
 of politics and of government knows that in times of 
 great agitation and popular excitement, when party 
 or class feeling runs high, and when the chasm be- 
 tween contending parties or classes becomes so great 
 and wide that neither side can any longer rely upon 
 mere reason or argument to win converts from the 
 other side, the stronger party will be tempted, if 
 strong enough, and will too often yield to the temp- 
 tation, to force its opinions and its will upon the 
 weaker party by physical force. It may do this, not 
 always as the result of unreasoning and angry passion, 
 but often from a pious or zealous confidence in the 
 righteousness of its own cause and in the goodness of 
 its own intentions. And this will be equally true, 
 whether the stronger party is a majority or a minority. 
 History unerringly shows that, at such times, the 
 weaker party needs a more certain and effective pro- 
 tection than appeals to the reason and justice of its 
 oppressor. Can any man be sincere who denies that 
 this is the lesson of history; and that there should be 
 some effective protection for those who dissent from 
 the creed of the stronger party, whether that creed 
 be religious, political or any other? Most certainly, 
 there should be some paramount law for the protec- 
 tion of the weak, the lowly, the unpopular, the dis- 
 
 44 
 
senter; and above all, for the protection of freedom 
 of speech, freedom of the press, freedom of religion 
 and the security of property. The protection guar- 
 anteed by our constitutions in these matters has been 
 won, only after centuries of struggle ; and it is too 
 sacred to be left to the whim of any ruling class, 
 whether it be a majority or a minority. Has there ever 
 been devised a better means for accomplishing this 
 protection than the written constitution, and the 
 courts, imperfect as they may be? What can be of 
 greater importance than the impartiality and inde- 
 pendence of the judges who sit in those courts for the 
 protection of those rights ? 
 
 There Can be no Liberty or Prosperity Without Proper 
 Constitutional Restraints, and Any Scheme Which 
 Tends to Destroy or Weaken the Independ- 
 ence and Courage of the Judges Makes 
 Against the Security of the Funda- 
 mental Rights of the Citizen. 
 
 How can there be "equal and exact justice to all 
 men" without these constitutional restraints, and with- 
 out an independent tribunal sufficient for their pro- 
 tection ? It seems certain that no liberty or prosperity 
 can be long lived without such restraints or such a 
 tribunal. Any scheme or any policy which will de- 
 stroy or weaken those restraints or which will destroy 
 or weaken the independence of the judges, who are 
 to interpret and protect those rights, most certainly 
 makes against the security of the fundamental rights 
 of the citizen. 
 
 The teachings of history show that liberty has 
 nothing to fear from an independent judiciary; and 
 that in nearly every instance where judges have 
 trampled on liberty and invaded popular rights, it 
 
 45 
 
has been where the judge was subject to removal by 
 the power that appointed him and whose will he was 
 serving when the misdeed occurred. 
 
 It is Unfortunate that Judges are Compelled to Decide 
 Political Questions. 
 
 It is unfortunate that judges are compelled to de- 
 cide political questions; for it is oftenest in such 
 questions that great popular antagonisms are aroused ; 
 and it is here also that most dissatisfaction with the 
 decisions of the courts is likely to arise. If the judge 
 is a strong party man, the decision on a political ques- 
 tion is apt to be colored by political bias; and if he 
 decides in favor of the party that elected him, it will 
 be very hard to convince the partisans of the opposite 
 party that the decision is not a political one. But 
 these questions do arise in the interpreting of the laws 
 and must be decided; and, unfortunate as it may be, 
 who is better qualified to pass on them than the 
 courts? Who is more likely to render an unbiased 
 decision ; and whose decision will command any greater 
 respect ? 
 
 The most obvious remedy for this evil is to remove 
 the judges as far as possible from politics, and make 
 them entirely independent of the appointing power, 
 and removable only after some kind of a fair trial 
 wherein the judge shall have an opportunity to be 
 heard in his own defense. 
 
 But notwithstanding the weaknesses of our judicial 
 system, the courts have generally been accorded a great 
 measure of respect and confidence by the majority of 
 our people. The people have recognized the courts 
 as the bulwark of conservatism and the hope of the 
 oppressed. They know that the true function of the 
 court is to stand impartially between man and man, 
 
 46 
 
and even between the whole people and the man they 
 prosecute, in an attempt to deprive him of his life or 
 liberty or property. They look to the court as the 
 guardian of their peace and safety in the ordinary 
 affairs of life. They believe that, in the main, the 
 courts have fulfilled their function fairly well; and 
 it is nothing short of a public calamity when the 
 people lose confidence in the courts, and in the fair 
 and impartial interpretation of the laws; for then 
 the greatest prop to a stable government has become 
 shattered. 
 
 The Decisions of the Courts are Misrepresented and Public 
 Confidence Undermind by Malcontents who wish 
 
 to Overthrow the Existing Order. 
 It is to be expected, therefore, in this period of 
 unrest, on which we have entered, that the courts 
 should become the target of the malcontents and should 
 come in for a good share of the attacks levelled at 
 the existing order of things; that their faults should 
 be greatly magnified, their motives maligned and their 
 decisions misrepresented, by those who desire to dis- 
 credit all existing law and all orderly government. 
 The very respect and confidence which the courts 
 have enjoyed have been the motive for some of these 
 attacks. To undermine the public confidence in the 
 institution that has been the corner stone of stable 
 government and that still retained the greatest share 
 of such confidence would be the greatest victory of the 
 malcontents. And as a result of these attacks upon the 
 integrity and independence of the courts many good 
 and well meaning people are thoughtlessly carried 
 away by the subtle and plausible misrepresentation of 
 the malcontents, and are unconsciously allying them- 
 selves with the very worst enemies of society. Most 
 
 47 
 
of the attacks on the judges are by general innendo. 
 They lack specifications; and they are nearly always 
 untrue. It is outrageous that judges should be abused 
 and slandered for making decisions which follow the 
 law, and uphold the constitution, as is often the case. 
 The judges in such cases have only done what they 
 are required to do by their oath of office, and what 
 they are elected to do. 
 
 A reading of some of the organs of public opinion 
 devoted to the advocacy of the recall will convince 
 anyone that the attacks on the judiciary, in this state, 
 for instance, are only one phase of a much broader 
 question. Their purpose is to destroy public con- 
 fidence in the whole judicial system as a function of 
 government. The vicious attacks on the courts for 
 declaring acts of the legislature unconstitutional shows 
 this to be fact. Whether it is or is not a wise policy 
 to permit the courts to declare acts unconsitutional is 
 beside the question; for it has been an established 
 principle of law in this country for more than a cen- 
 tury. No principle is better established. This practice 
 is now, however, denounced in the most bitter terms, 
 as a "judicial usurpation," "a prevention of pop- 
 ular government," "a government by judges," "a ju- 
 dicial tyranny," "judical permission to enact laws," 
 "a failure to respond to the popular will," "the chain- 
 ing of the present to the dead corpse of the past," 
 and other like expressions; all intended to prejudice 
 and poison the popular mind as to the wickedness of 
 those judges who indulge such a practice. Could any- 
 thing be more unfair than to use such an argument 
 in favor of the recall of the judiciary? The logic 
 of the argument, of course, is that, when we have the 
 recall, this practice will stop. Now if it is a fact that 
 this principle is the settled law by the precedents of 
 
 43 
 
a century, one would think that the judge who had 
 sworn to uphold the laws, and then ignored it, ought 
 to be recalled, rather than the judge who conscienti- 
 ously followed it. The principle itself is well settled ; 
 but if it is a wrong principle or a wrong policy, why 
 not change it, in a legal and orderly manner, by chang- 
 ing the constitution which the majority has a right 
 to do, instead of attempting to amend it, in an ir- 
 regular manner, by coercing the judge to violate his 
 oath, and independence, and self respect, under threats 
 of a recall ? In other words, if the legislature enacts 
 a law which contravenes the constitution or a funda- 
 mental law enacted by the people themselves for 
 the very purpose of placing limits on legislative action, 
 the judge who upholds the fundamental law will be 
 recalled, if the later, or legislature made law, is pop- 
 ular with a majority of the people. Of course it follows 
 that if the later law is not popular; if the legislature 
 has not properly interpreted the popular will ; of if 
 it is thought to be a corrupt legislature, and the new 
 law is thought to be favorable to the "interests" or 
 to "big business," then the judge must ignore it and 
 sustain the fundamental law, or be recalled ; for in this 
 latter case he has violated his oath of office. In other 
 words, so far as the judge is concerned, he is supposed 
 to be responsive to the popular will, whether the legis- 
 lature interprets it correctly or not. If he guesses 
 the popular pulse correctly his position is safe. If he 
 mistakes the popular pulse he is likely to lose his 
 position. No doubt the newspapers, interested parties, 
 mass meetings, and public clamor will help him to 
 his guess; but we have often found out that the most 
 votes are not always on the side of the most noise. 
 It would seem that such a condition of affairs could 
 easily lead to anarchy. In a recent article by Mr. 
 
 49 
 
Justice Lurton, he has very aptly dealt with this phase 
 of the subject in this language : 
 
 "Whether the general interests will be best subserved by a 
 disregard of constitutional barriers or by obedience to the slow 
 processes for constitutional amendments is a question which goes 
 to the very fundamentals of our institutions. To override con- 
 stitutional methods spells revolution and tends to the destruc- 
 tion of a government of law. To yield to the clamor of a 
 temporary majority upon the pretense that otherwise popular 
 government is prevented is but to overthrow the barriers which 
 the people themselves, under great deliberation, have erected 
 against their own impulsive majorities. These impediments to 
 hasty action are intended not only as bulwarks for the defense 
 of minorities, but as defenses against hotfooted action by 
 temporary majorities in supposed exigencies." 
 
 The Logic of the Recall Would Require Cases to be De- 
 cided by Popular Vote. 
 
 It is not uncommon to hear the advocates of the 
 recall inveigh against the courts, that they legislate 
 when they interpret and construe the laws ; and in the 
 next breath insist that the courts must be responsive 
 to the popular will and construe the laws as the people 
 wish them to be construed. 
 
 Hon. Sydney Anderson of Minnesota, in a recent 
 speech in congress on the recall in Arizona said : 
 
 "While they act through the medium of the court, the making 
 or unmaking of law is nevertheless a legislative function, and 
 should be just as much subject to final control by the people as 
 though they legislated through the medium of the legislature." 
 
 It is undoubtedly true that the interpretation of a 
 law is, in a sense, the making of law. If the law needs 
 interpretation to fix its meaning this may involve a 
 kind of quasi legislation; and it is true that judicial 
 decisions cumulatively tend to become additions to 
 the law, although claiming only to interpret it. The 
 legislature, however, can change these, as any other 
 law, if they do not meet popular approval. But if 
 
 50 
 
the meaning of a law is doubtful, somebody must have 
 authority to finally determine its meaning; and un- 
 fortunately this predicament arises very often. 
 As Judge Baldwin says : 
 
 "Few statements of any rule or principle can be written out 
 in such a way as to convey exactly the same expression to every 
 mind. Thought is subtler than its expression. The meaning of 
 written laws will therefore often be questioned." (Baldwin 
 American Judiciary, p. 81.) 
 
 At a recent meeting of the Commonwealth Club, in 
 a debate on this subject, the question of the "interpre- 
 tation" of one of the proposed constitutional amend- 
 ments, relating to the railroad commission, was 
 broached. There were several Senators and Assembly- 
 men present, who were responsible for the amendment. 
 Each one who expressed himself had a different view 
 as to its meaning and effect. 
 
 How would the judge interpret the popular will in 
 construing such a law ; provided there is a popular will 
 on the subject? How is the judge to proceed to get 
 at the popular will? If he decides against the popu- 
 lar will, then there may be an election, and he may 
 be recalled. It would seem only fair to the judge to 
 call the election, in advance, so that he may be properly 
 advised of the popular will. If he has to rely upon 
 the newspapers and other organs of popular opinion, 
 they may intentionally, and perhaps for hire, mislead 
 him. 
 
 But if the law is ambiguous and uncertain and in 
 need of interpretation, the judge who interprets it 
 according to the popular will, legislates just as much 
 as if he interprets it according to the rules of gram- 
 mar and logic and according to the judicial precedents. 
 So, it is not the judicial legislation which these reform- 
 ers object to so long as the interpretation is in accord- 
 
 51 
 
ance with the popular will. But as there is so much 
 difficulty in getting at the popular will, except by 
 an election, it would seem that the only logical and 
 safe way to determine questions of interpretation is 
 by an election and not by the agency of judges. At 
 the meeting of the Commonwealth Club just referred 
 to, when the diversity of opinion as to the meaning of 
 the constitutional amendments became apparent, Sen- 
 ator Gates, the champion of the recall, in the legis- 
 lature, said: 
 
 "This is just what the recall is for. It will decide questions 
 like this for you. Do you want to let the lawyers decide all 
 these matters for you, or do you want to decide them your- 
 selves?" 
 
 Of course, when this stage is reached, the usefulness 
 of the courts will be very small and will be practically 
 confined to clerical duties. Besides, as interpretation is 
 legislation, it will be in line with the popular reforms 
 to let the people do the legislation ; because if the judge 
 is to legislate, even according to the popular will, then 
 we still have the odious thing called "a government 
 by judges" which is itself a kind of representative 
 government. Why not have direct legislation here 
 also ?* 
 
 There is no doubt that the majority of the people 
 are honest, and if they were fully advised of the facts, 
 and had the requisite time to consider them, they could 
 under normal conditions, where their sympathies or 
 passions were not aroused, give a just decision on 
 questions of fact. But they are too busy with their 
 own private affairs, in making a living for themselves 
 
 Note. That government by mass meeting is not a new in- 
 vention of the twentieth century, see Aristotle's remarkable 
 description of that class of lawless democracy, as it existed 
 in his day. (Politics, Book TV, Chap. TV.) The likeness to 
 the ideal of some of our local reformers is striking, not to 
 say startling. See Appendix No. 2. 
 
 52 
 
and those dependent on them, to take the time to suf- 
 ficiently investigate and ascertain the facts. They 
 would too often get the facts from yellow journalists, 
 muckrakers and demagogues, who would often be in- 
 terested in misinforming them, telling them things 
 which might have the semblance of truth, but which 
 would really be intended to prejudice their minds 
 and inflame their passions. It is upon false premises 
 built up in this way that a majority would be very 
 likely to form their judgments. Turn back, only a 
 few years, and recall how this community was divided 
 on the questions involved in the graft prosecutions, 
 where the several factions were busily engaged in 
 making popular opinion for and against each other. 
 Such things have never failed where the interests 
 involved were powerful enough to expend the neces- 
 sary efforts to produce the desired results. 
 
 But when it comes to deciding questions of law, 
 how can the people be expected to pass intelligently 
 upon the correctness or incorrectness of a decision of 
 a judge who is supposed to have made a life study of 
 the subject, and to have reached a conclusion after 
 full argument for the adversary parties, represented 
 by experts learned in the law, and to have decided ac- 
 cording to his oath? As previously insisted upon, it 
 is no disparagement of the intelligence of the people 
 to say that they are not qualified to pass upon com- 
 plicated questions in government or law, upon some of 
 which even those who have made them a life study, 
 may honestly disagree. Even when the principles are 
 well settled it is often difficult to apply them to the 
 facts of the case, because of the infinite variety and 
 complexity of human actions and affairs and the vary- 
 ing force with which different acts and shades of 
 action affect different minds. No assembly, even of 
 
 53 
 
educated men, could pass intelligently upon many 
 measures or principles which are outside their own 
 special spheres of information. How, then, can the 
 people at large, whose time is occupied in strenuously 
 following their own vocations, pass upon these dis- 
 puted points. To doubt their ability to do this may 
 be a lack of confidence in their ability or intelligence 
 in certain respects; but it is certainly no disparage- 
 ment of their general ability or intelligence. To ask 
 the people, busy with their own affairs, to do such 
 things, is absurd, as every one should know, and is 
 wrong in principle. Matters requiring special knowl- 
 edge should be left to specialists. Our government 
 and institutions would break down if submitted to such 
 an absurd strain. Our modern life is becoming so 
 complicated that, while the democratic form must be 
 retained, the strain on the people must be made lighter 
 instead of heavier. The average man can no longer 
 give the time necessary to study the whole of the com- 
 plex and diversified conditions which affect his public 
 duties. Instead of the people taking a larger share in 
 their own government, they will, in certain respects, 
 be compelled, more and more, on account of the vast- 
 ness of the task, to take a relatively smaller share if 
 they desire efficient government. They will have to 
 delegate to specialists the investigation and solution 
 for them, of the tremendous questions that are con- 
 stantly pressing for solution ; just as in their private 
 business, if they wish the best results they unhes- 
 itatingly confide matters requiring special knowledge 
 to those best qualified to produce the best results. 
 This idea was ably expounded over a year ago in an 
 address which President Hadley, of Yale, delivered 
 at the University of California. He pointed out the 
 necessity in a democratic government, on a large scale, 
 
 54 
 
if it is to endure, to utilize trained specialists to work 
 out, for the people, the great problems with which 
 they are confronted under modern conditions; and 
 which the people at large have not the training nor the 
 time to work out for themselves. As an example of the 
 capacity of our constitutional democracy to adapt 
 itself to these new conditions, he instanced the creation 
 and work of the Interstate Commerce Commission. 
 Since that time, acting along the same line, we have 
 established a Court of Commerce, and a Tariff Com- 
 mission composed of specialists, whose business it will 
 be to thoroughly investigate the special subjects com- 
 mitted to them, and who will do for the people what, 
 admittedly, they are and must be incapable of prop- 
 erly doing for themselves. President Hadley divides 
 the problems of democracy into problems of social 
 order and problems of business administration (Uni- 
 versity of Cal. Chronicle, Vol. XII, p. 208). Ques- 
 tions of social order like slavery, immigration, suffrage, 
 states' rights, prohibition and divorce, the people must 
 work out for themselves ; but questions on which only 
 a small part of the voters can possibly inform them- 
 selves, must be left to experts. This is the logical way 
 to get the best results. 
 
 The doctrine that the will of the majority must 
 be right simply because it is the will of the majority, 
 is not only an obvious absurdity, but it is dangerous 
 to democratic government itself. It logically leads to 
 the wiping out of all restraints and constitutions. 
 Under such a doctrine a constitution would be a mere 
 sham. 
 
 55 
 
What Good can the Recall of the Judiciary Effect? 
 
 It must be admitted that we should have the best 
 judges possible ; but there will be a difference of opin- 
 ion as to how that result may be attained. Of course 
 the system of selection which will secure the best re- 
 sults is the best. The two systems which have hereto- 
 fore seemed to meet with the approval of thoughtful 
 men are first, appointment by the executive and legis- 
 lature with a tenure of good behavior; and second, 
 popular election with a reasonably long term. 
 
 Will the recall produce better judges? Will it be 
 conducive to promote integrity, independence or 
 courage, which, with ability and learning, constitute 
 the prime characteristics of a good judge? When a 
 judge goes on the bench he bids farewell to his 
 practice, the means of his livelihood. He is generally 
 a man of moderate means to whom his salary is essen- 
 tial for his livelihood. If he is subject to recall, and 
 would be secure in his position, he must not only avoid 
 the danger of losing it, but his care will naturally be 
 not to invite a recall election which, with its other 
 dangers and annoyances, may entail an expense which 
 he can ill afford. Unless a judge is of the type of 
 Brutus, will not the temptation be very strong to con- 
 sider the influences which may be behind the parties 
 litigant as well as the merits of their causes? In fact 
 is that not the avowed purpose of the recall to make 
 the judges responsive to the popular will? Is the 
 judge more likely, in such case, to go, for his law, to 
 the constitution and statutes and to the decisions 
 construing them where the wise and learned and 
 honest judge is supposed to go or will he be more 
 likely to consult the pages of the sensational but 
 powerful newspapers, the resolves of mass meetings, 
 
 56 
 
or labor councils, and the harangues of demagogues 
 or the leaders of powerful organizations, controlling 
 large numbers of votes? 
 
 If the judge is a timid man, will not his usefulness 
 be destroyed? Will men of high character accept a 
 judicial office under such circumstances? Will any 
 man accept it unless the salary is more of an object 
 to him than his reputation, or unless induced by 
 sinister motives ? One thing is pretty certain, and that 
 is, that the judge who should be recalled will scarcely 
 ever be recalled, unless he happens to make a false 
 guess at what is the popular will. 
 
 Ask yourself how you would like to have your cause, 
 which you knew to be just, tried before such a tribunal, 
 especially if you were resisting the ruthless aggression 
 of some labor union; if you were resisting an unjust 
 claim for damages of some employee injured in your 
 service; if you were foreclosing an honest mortgage 
 against the widow of your debtor. A case like this 
 last recently occurred in Red Bluff, where a creditor 
 sought to foreclose a claim of nearly four hundred 
 thousand dollars which had been loaned to the widow's 
 husband. During the sessions of the court, the court- 
 room was packed with the townspeople, the room could 
 not accommodate the crowds. Every bit of evidence 
 in the widow's favor was hailed with applause which 
 the warnings of the court could not suppress. During 
 the trial the appearance of the town was like a holi- 
 day. How would this plaintiff have felt or fared if 
 the judge was a timid man and subject to recall ! 
 Suppose the case of a Chinaman or a Japanese or a 
 member of some other unpopular or despised race, who 
 has been beaten and abused, or whose property has been 
 destroyed or injured by a mob. What will be his 
 chances for justice, or what will be the chances of meet- 
 
 57 
 
ing out justice to his oppressors, before a judge who 
 is subject to recall? What would be the chance of 
 meeting out justice to a mob which might burn some 
 poor and perhaps innocent negro at the stake ? What 
 would be the chance of a judge performing his duty in 
 a county like Adams County, Ohio, where the majority 
 of the electors admitted having sold their votes? 
 
 Under the Recall Amendment, a Judge May be Recalled 
 by a Minority of the Voters. 
 
 But if a judge is recalled, he may be recalled by a 
 minority and not by a majority. A well organized 
 minority may easily accomplish a judge's undoing. 
 Suppose the registered voters of San Francisco were 
 70,000, and that at the last election of judges only 
 40,000 voted. A petition signed by 10,000 voters would 
 be sufficient to bring about a recall election. If, at 
 the recall election, less than 20,000 electors voted, the 
 judge.could be recalled by say 10,000 voters. A strik- 
 ing illustration of this is afforded in the case of the 
 Arizona Constitution, which has caused so much stir 
 in the Nation at large, but which apparently did not 
 create such a great stir in Arizona. When it was sub- 
 mitted to popular vote less than 27 per cent of the 
 voters and less than 6 per cent of the population went 
 to the polls. It is decidedly a minority constitution. 
 
 But suppose the recall will enable us, occasionally, 
 to get rid of a dishonest judge more expeditiously than 
 by the legislative impeachment or legislative removal 
 now provided for ! Suc-h a condition is only a tempo- 
 rary and a local condition ; for there can be no doubt 
 that the very great majority of our judges are honest 
 and competent. What will be the result? Must we, 
 for the sake of being able to correct such an occasional 
 mistake, weaken and destroy the intellectual honesty, 
 
 58 
 
the courage and the independence of the whole body 
 of our judges? Is is not better that such a single 
 judge, (if it is impracticable to impeach him) be al- 
 lowed to serve out his term, living under the suspicion 
 of his fellow citizens, than to introduce a system whose 
 tendency must necessarily be to demoralize the whole 
 bench? Is not this scheme very much like the case 
 of the farmer who burned his barn in order to get rid 
 of the rats? 
 
 It is objected that judges have been subservient to 
 bosses and powerful interests to whom they have owed 
 their nomination and election; and that the people 
 must have the opportunity to correct such abuses? 
 But in answer to this, it may be said that the new 
 primary election law has already placed the correction 
 in the peoples' hands. Under this law the people 
 themselves will be able to nominate their judges; and 
 hereafter judges are to be voted for, not as the 
 nominees of any particular party, but solely upon their 
 individual merits and popularity. 
 
 There are many other phases of this matter which 
 could be dwelt upon; but the length of this paper 
 forbids ; and for the same reason I am precluded from 
 giving a large number of illustrative examples of the 
 inconsiderate and ruthless manner in which honest 
 judges have been punished and broken by angry con- 
 stituents for doing their plain and honest duty. 
 
 .59 
 
CONCLUSION 
 
 It seems clear that any one who has at heart the 
 preservation of true and stable democratic govern- 
 ment, where the citizen will be secure in the enjoyment 
 of his liberty and the property which he has accum- 
 ulated by toil and self-denial, should be opposed to the 
 recall of judges. 
 
 If there ever was an institution with a more obvious 
 tendency to bring democracy into disrepute, it is diffi- 
 cult to imagine what it can be. The great success of 
 democratic government in this country, pre-eminent 
 among the popular governments of history and the 
 reason why our people have been satisfied with it, has 
 undoubtedly been due to the fact that we have been 
 living under just and reasonable constitutional re- 
 straints. Under such just and reasonable restraints, 
 popular government has prospered and made a record 
 which is illustrious when compared with the best gov- 
 ernments of any other form ; and it has been an in- 
 spiration to peoples of the world. But the way to 
 prepare for the overthrow of popular government and 
 for reaction, and possibly the advent of the "man on 
 horseback," is to open wide the door for the anarchy 
 and disorder which may come in time of crisis, from 
 an unrestrained democracy. 
 
 Unrestrained democracy is what the recall of judges 
 logically means; for with the recall how much reliance 
 can be placed on constitutional guarantees? 
 
 I will therefore end with this suggestion : 
 
 Why not give the new system which we have just 
 inaugurated in this State, namely, the direct primary 
 nomination and non-partisan election of judges, a fair 
 trial before embarking on a new, untried and appar- 
 
 60 
 
ently dangerous experiment ? There is no telling what 
 injury may come from such a radical step. It may 
 unsettle the very foundations of society. It certainly 
 will not make our State an inviting field for the invest- 
 ment of new capital, until the effects of the new system 
 can be fairly determined. As Oregon and Arizona 
 seem to be bent on trying the experiment, those who 
 favor the recall of judges ought to be glad to wait 
 and see the effects of the experiment in those com- 
 munities; when, after due observation, if it is found 
 to work evil we may avoid it; and if it is found to 
 work good we can adopt it, with all the advantages 
 of an experience which will cost us nothing. Why not 
 let Oregon and Arizona try the experiment for a 
 reasonable time before we act; and why not watch 
 the workings of this innovation in those communities, 
 so that we may profit by their experience, without 
 the risk of paying the penalty ourselves, if the ex- 
 periment should prove to be an unwise and costly one? 
 
 APPENDIX NO. 1 
 
 "I undertake to say that the Constitution of Mis- 
 sissippi embodied the popular suffrage idea, in connec- 
 tion with judicial elections, earlier than was done else- 
 where since the adoption of the Constitution of the 
 United States. I was induced to propose it in the 
 manner mentioned in consequence of a then recent 
 perusal of Mr. Jefferson's writings, in which this mode 
 of election is so highly recommended, especially in the 
 letter already named, addressed by him to a Mr. 
 Kercheval. There is scarcely an instance of a more 
 rapid diffusion of any political notion whatever so 
 directly in opposition to established public scnliincnl 
 than now occurred all over the Union. T take no par- 
 ticular credit to myself for first suggesting this idea 
 
 61 
 
in Mississippi ; and it would be indeed very ridiculous 
 for me to do so, for I hold that experience has plainly 
 shown this change in the mode of election to have been 
 a great and most deplorable error, since for many 
 years past it has, as I think, been found altogether 
 impossible to keep politics out of the judicial elections ; 
 and hence a great and constantly increasing deteriora- 
 tion of the judicial department of our system has been 
 observable." (Henry S. Foote, Casket of Reminis- 
 cences, p. 348.) 
 
 APPENDIX NO. 2 
 
 "Another kind of democracy is where, other things 
 being the same, the multitude, and not the law, bears 
 sway. This comes to pass when, instead of the law, 
 the mere resolves of the popular assembly are 
 sovereign ; and this is the work of the demagogues ; 
 for popular governments, in which the constitution 
 and laws are supreme, afford no place for demagogues, 
 but the best citizens are there in authority. Where, 
 however, the laws are not sovereign, demagogues 
 spring up. In such a government the people are a 
 sort of many headed monarch ; for the many rule not 
 as each, but as all. Whether Homer had in mind this 
 kind of government, when he censures a plurality of 
 rulers; or whether he meant that in which many 
 individuals bear sway, is not clear. Now, such a 
 people being in truth a monarch, will, of course, play 
 the king; and inasmuch as it is controlled by no law, 
 readily becomes despotic. Hence, flatterers are in 
 honor. A democracy of this description bears the 
 same analogy to a popular government, based upon 
 the supremacy of law, that a tyranny bears to the 
 legitimate forms of monarchy. In both the animus 
 or moral character, is the same; both exercise despo- 
 
 62 
 
tism over the better class of citizens; and the resolves 
 of mass meetings are in the one, what edicts and 
 decrees are in the other. The demagogue too, and the 
 flatterer of the tyrant, bear the closest analogy; they 
 are, indeed, at heart, the same; and these have the 
 principal power; each in their respective forms of 
 government, court favorites with the absolute monarch, 
 and demagogues with a people such as I have de- 
 scribed. The demagogues are, in fact, the guilty 
 authors of this degeneracy of popular government, by 
 referring everything to the mere pleasure of the 
 people, without respect to law or right. Thus they 
 aggrandize themselves, and become mighty; by ruling 
 the popular opinion, they rule the state ; for the mul- 
 titude obeys them ! // they wish to overthrow an 
 upright magistrate, they accuse him not before the 
 law, but before the people, which, they say, might to 
 be his judge; the people, well pleased, entertain the 
 wrongful pn^oposal, and thus all just authority is dis- 
 solved! He, who should blame us for calling such a 
 democracy a state, would, certainly, not censure with" 
 out good reason; for where laws do not govern, there 
 is no state." (Aristotle, Politics, Book IV, Chap. IV.) 
 
 63 
 


 
 10 
 
RETURN TO: 
 
 CIRCULATION DEPARTMENT 
 198 Main Stacks 
 
 LOAN PERIOD 1 
 Home Use 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
 ALL BOOKS MAY BE RECALLED AFTER 7 DAYS. 
 
 Renewals and Recharges may be made 4 days prior to the due date. 
 Books may be renewed by calling 642-3405. 
 
 DUE AS STAMPED BELOW. 
 
 AUG 1 5 2003 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 FORM NO. DD6 UNIVERSITY OF CALIFORNIA, BERKELEY 
 50M 5-02 Berkeley, California 94720-6000