KF 4884 .Z9 G37X LIBRARY OF THE UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAICN kF nm ,29 G37X 8061 12 'NVr IVd A 'M ‘asnoBJ^s S-1351BPM •SOJa THE RECALL OF JUDGES AND JUDICIAL DECISIONS SPEECH OF HON. AUGUSTUS P. GARDNER OF MASSACHUSETTS IN THE HOUSE OF REPRESENTATIVES APRIL 4 , 1912 WASHINGTON GOVERNMENT PRINTING OFFICE 37725—10830 1912 SPEECH OF HOIST. AUGUSTUS P. GARDNER, OF MASSACHUSETTS. On the bill (II. R. 20728) the Indian appropriation bill. Mr. JACKSON. Mr. Chairman, I am authorized by the gentleman from South Dakota [Mr. Burke], in his absence, to yield to the gentleman from Massachusetts [Mr. Gardner] the balance of the time upon this side. The CHAIRMAN. The gentleman from Massachusetts is recognized. TIIB RECALL* OF JUDGES AND OF DECISIONS. Mr. GARDNER of Massachusetts. Mr. Chairman, one of the leaders of the Republican Progressive League has said that a firm belief in the recall of judges by the people is the true acid test of a progressive. I dispute an analysis determined by any such chemistry. I deny the application of the epigram and in its place I offer a truer maxim. A firm belief in the founda- tions of our Federal Constitution is the rock from which the liberal reformer defies the radical destroyer. The people of this country are the motive power of the ship of state, the Con- gress chosen by the people is its rudder, and the Constitution adopted by the people as the expression of its profoundest beliefs is its ballast. The reactionaries of this Nation are hopelessly routed and now, as always in the world's history, a new line of cleavage has appeared between the forces which have put the old order to flight. On one side of this new line of cleavage we find the men who wish to prune and pare and train and cultivate the tree of life. On the other side we find the men who believe that the tree is so old and so rotten that it must be pulled up by the roots and a new one planted. SELF-LIMITED DEMOCRACY V. PURE DEMOCRACY. The issue is squarely joined between those who believe in a self-limited democracy and those who believe in a pure democ- racy. A self-limited democracy is one which declares that it will bind itself and fortify itself against its own hasty, unjust, or o 37725—10830 5 f w h. m.tl 3 KF <29 £3 % oppressive action by imposing on itself a constitution. It is a democracy which declares that its constitution shall be based on eternal truths and on a full recognition of the rights of every man to his life, his liberty, and his property. Such a Constitution we now possess and, hitherto, since this Govern- ment was formed, save during the period of our Civil War, all the people have submitted to its restrictions. But now comes forward a body of men who call themselves Socialists and who deny the right of individuals to hold property. Joined with the Socialists in the movement for fundamental constitutional changes are those radicals who believe in private property, but base their faith on a pure democracy. Let us see what a pure democracy is. Let us see what a purely democratic government must provide as its machinery. A pure democracy is a government where the will of the major- ity must at each and every moment be the supreme law of the land. A purely democratic government must obliterate the line which separates a constitutional provision from a law by mak- ing it possible for a majority of the people to disregard either at any time. Such a government will naturally provide an Initia- tive by which any reasonable number of voters may propose a law or a constitutional provision and a Referendum by which a majority of the voters may accept or reject a law or a consti- tutional provision. It will naturally provide an Imperative Mandate by which the majority of the voters may command the President or any executive officer to do its will, and a Recall of the President and of all other legislative and executive officers who shall fail to obey the orders of the majority or who shall perform their duties in an unsatisfactory manner. It will nat- urally provide for the Review or Recall of Judicial Decisions and for the Review of Jury Verdicts when the voters so desire. It will naturally provide for the Recall of Judges and, perhaps, for the punishment of juries who disobey the majority or per- form their duties in an unsatisfactory manner. It will natur- ally provide for proportional and minority representation and for a single chamber, instead of the Senate and House. It ought to abolish the veto power of the President, and it must give the franchise to ail adults living in the United States — men and women, black and white, citizens and aliens. When all these changes are adopted there will be a pure democracy in the United States. THE IMMEDIATE PROGRAM. Of course, there is to-day in this country no group of men calling for the immediate adoption of this whole program, but large numbers of our citizens are demanding that its cardinal points shall forthwith be made the law of the land. The cam- 37725—10830 A paign for the Initiative, Referendum, and Recall is in full swing, and the Review of Judicial Decisions has but recently been added to the immediate program. The Review of Judicial Decisions has never been tried in this Nation. The Initiative is new and is now undergoing a trial in some of the States of the Union. The Referendum has always existed here in one form or an- other, though not in the form now advocated. Elective officers, including elective judges, have always been subject to the Recall in the sense only that the voters might al- ways decline to reelect them. To-day I shall only discuss the question of the Recall of Judges by the people, and to some extent, the Review of Ju- dicial Decisions by the people, TENURE OF JUDGES. Since the foundation of our Government life judges in- this country have never been subject to recall by the people, and, except recently in a few States, elected judges have been sub- ject thereto only to the limited degree which periodical elec- tions afford. Various means, however, of removing judges by the legislature have been in force in the different States. Some States, like Massachusetts, provide that judges may be removed on address by the legislative and executive power acting jointly, and the removal may be made for any reason or for no reason at all. In Massachusetts the joint action of the governor, the council, the senate, and the house is necessary for a removal by address. All States provide for the removal by impeachment of judges who have been guilty of misconduct. For an impeachment, the concurrent action of the senate and the house is required, but no action by the governor is necessary. All judges of the United States hold office during good be- havior and can be removed only by impeachment. Yet such is the ingenuity of the American people that ways and means have always been found to remove life judges and superfluous judges when absolutely necessary for the public welfare, even if those judges have committed no impeachable offense. This end has been accomplished by reducing the number of judges and sub- sequently increasing them again. It has been accomplished by abolishing a court and simultaneously creating a new one with a different name, but with practically the same functions. In my own State of Massachusetts, in 1859, the Court of Com- mon Pleas was abolished and the Superior Court established for the express purpose of making a change in judges. The same device has again been employed in Massachusetts much more 37725—10830 recently. A clumsy and difficult mode of procedure, I grant you, but effective for all that. SOURCE OF THE DEMAND FOR RECALL. It is only a few years since Mr. Dooley convulsed the country with laughter when he said that perhaps trade might not follow the flag, but that the Supreme Court followed the election re- turns. We acknowledged the exaggeration, but we admitted the grain of truth, because we knew full well that irremovable judges, like other men, only to a lesser degree, are influenced by changes in the times and changes in public sentiment. What reversal of opinion has come over the people so that to-day men listen eagerly when they are told that our Federal judges care nothing for public opinion and always decide questions in a narrow and reactionary spirit? We are living in an age of discontent, much of it justifiable, much of it the artful creation of the demagogue. W T hen men are discontented and filled with anger they do not attack with discrimination, but they attack blindly in all directions. For several years past the people have been turning out of power those representatives whose views do not meet their views and have been substituting men who share the same opinions as their electors. This is as it should be. This is the true remedy and the only sure remedy. If I can not bring myself to believe that which my constituents believe, it is my sworn duty to fol- low my own judgment while I am still in Congress; but never- theless the people in my district should turn me out of Congress if our difference in views is important. Why is it that in the wave of change which has swept over England the British judges and the British courts have not been the subject of attack? Why should discontent manifest itself in one direction at home and in another direction abroad? It is partly because the British court procedure has been re- formed and ours is still archaic. But why blame our courts for the use of worn-out tools? It is our legislatures and our lawyers Y who have been remiss in supplying them with no new ones, and the people ought not to tolerate this remissness one day longer. Far more significant than any question of difference in pro- cedure between the two countries is the fact that our courts are charged with two great unpopular functions which the British courts escape. American courts must declare void all laws, no matter how popular, which violate any of -the provisions of our fundamental law, the Constitution. As if that function were not sufficient cause for unpopularity, the additional duty is imposed on our judges of issuing injunc- tions in labor disputes, and they are further charged with the 37725—10830 G necessity of themselves punishing for contempt of court, with- out a jury trial, all citizens who violate those injunctions. The burden of unpopularity arising from the constitutional necessity must be borne ; but Congress and the legislatures -of the States can and, as I believe, ought to remove the burden of unpopularity arising from the denial of a jury trial in pro- ceedings for contempt to enforce injunctions. Such are, for the most part, the motives which have led to a demand for the Recall of Judges by vote of the people. AN “APPEAL TO SEASON.” Unfortunately, there is also a more sinister motive, confined however, I am confident, to a small minority of our people. In California last autumn there w’as a campaign for the adoption in that State of the Recall of Judges by vote of the people. The following article appeared in the Appeal to Reason, edited by Eugene V. Debs : The fight at the polls this fall will center around the adoption of the initiative, referendum, and recall amendments to the constitution. Under the provisions of the recall amendment the judges of the Supreme Court of California can he retired. These are the men who will decide the fate of the kidnaped workers. Don't you see what it means, com- rades, to have in the hands of an intelligent, militant working class the political power to recall the present capitalist judges and put on the bench our own men? Was there ever such an opportunity for effective work? No; not since socialism first raised its crimson banner on the shores of Morgan’s country. The election for governor and State officers of California does not oecur till 1914. But with the recall at our command we can put our own men in office without waiting for a regular election. Can this mean anything except that Debs’s object was to use the recall of judges for the purpose of securing the acquittal of the McNamara brothers? Few Socialists would knowingly lend their approval to such a motive. THE CHARGES AGAINST THE JUDGES. Whatever the causes may have been which breathed the breath of life into the movement for the Recall of Judges by the people, here are the principal counts in the indictment: That the courts, when they interpret the law, favor property rather than mankind; that the judges must necessarily become in- volved in politics, and often become the tools of their political allies; and that the judges are biased against all change in the existing order of things. Thank heaven a belief that judges act fro-nr corrupt motives has found no root in the American breast. The ermine is still glorious and unsmirched by the slime of the slanderer. Yet it has not escaped calumny. No mortal man can escape that, be he as chaste as snow and as pure as ice. 37725—10830 ✓ 7 Prof, Beard, of Columbia College, wbo has published what is probably the best compilation in favor of the Initiative, Refer- endum, and Recall, tells us that judges must necessarily be clrawn into politics, and Senator Jonathan Bourne, Jr., of Ore- gon, tells ns that from one ocean to the other experience has taught us that some of them will be influenced by the washes of the men to whom they ow^e their positions. I believe that both Prof. Beard and Senator Bourne have in mind such judges as are elected or appointed for a fixed term of years. I am afraid that it is true that some weak judges, as the time for their reelection or reappointment approaches, may allow their eyes to wander to the political outlook of the mo- ment instead of centering their regard wholly on the statute book. I feel that in such cases an unpopular litigant or a liti- gant with an unpopular cause might get something less than justice. For that reason I have no hesitation in pronouncing in favor of the Massachusetts judiciary system. Our judges, high or low, are all appointed for life by the governor of the State, and they never enter into politics. Why should they enter into politics? They have nothing to lose and nothing to gain by it. Of the Massachusetts system, more hereafter. SENATOR OWEN’S INDICTMENT AND THE ANSWER. In July, 3011, Senator Owen, of Oklahoma, chairman of the national committee of the Initiative and Referendum League of America, in order to prove his contention that the Supreme Court disregards the welfare of the people, presented a list of the specifications in his indictment. He instanced certain taxation law’s of certain States which have been set aside by the Supreme Court. The statute of Kan- sas imposing a special license tax on the Western Union Telegraph Co. is typical of this class of statute. It appears that the State of Kansas already fully taxed the Western Union Telegraph Co. for business done in Kansas, and this special license tax w r as an indirect endeavor to tax that company on business done in other States. Kansas, like many of the States of the Union, has been spending vast amounts of money, and it w^as not un- natural that its legislators should be willing to risk the consti- tutional question in an endeavor to compel outside business to assist in paying the bills of their own State. The Constitution does not permit the execution of- such devices. Senator Owen also tells us that the fourteenth amendment of the Constitution w r as adopted to guard the negro, but that it has been used to protect trusts and monopolies in imposing long hours of labor. The fourteenth amendment certainly was adopted primarily to guard the negro, but that part of the 37725—10830 8 amendment to which Senator Owen refers was copied from the fifth amendment to the Constitution, adopted in 1701. The fourteenth amendment certainly never intended to give negroes greater rights than those accorded to white people. The employers’ liability act for the protection of employees was, as Senator Owen alleged, declared unconstitutional by five judges against four. The decision, however, related to the in- terference with State authority by the peculiar terms of the act rather than to its essence. The act has since been re- drafted and passed by Congress and the court has held it to be constitutional in its new form. It is not true,, as alleged by Senator Owen, that the arbitra- tion act “ passed as the result of the great strike in Chicago in 1894, was destroyed by the courts.” A reference to the decision which he quotes shows that the arbitration act to which he refers was passed June 10, 1898, and that only one paragraph therein was declared unconstitutional. As a matter of fact this act, known as the Erdman Act, promises excellent results in the future. It is not true that the interstate-commerce acts have been emasculated by the Supreme Court, and I can not understand how Senator Owen or anyone else can think so. The original interstate-commerce act and its amendments have brought the railroads under strict Government control. It is true, as Senator Owen says, that in 1895 the income-tax law of 1894 w r as declared unconstitutional by the United States Supreme Court, and the various States of the Union are now engaged in ratifying a proposed change in the Constitution de- signed to meet that decision. No one denied the power of Congress to impose an income tax, provided that the amount of money to be drawn from each State in the Union should be in proportion to that State's impu- tation. No one denied the power of each State in the Union to impose within its own borders such an income tax as it might think fit. But the income tax of 1894 was not apportioned among the States of the Union according to the population of each State. On the contrary, the amount to be raised in each State would be, roughly, in proportion to the total income of the citizens of that State. The clauses in the Constitution on which the opponents of the tax relied read as follows : “ Representatives and direct taxes shall be apportioned among the several States which may be included within this Union according to their numbers," and “ No capitation or other direct tax shall be laid unless in pro - 37725—10830 0 portion to the census or enumeration hereinbefore directed to be taken” It was not for the Supreme Court to consider the merits of the law. The whole question at issue was as to whether an income tax is or is not a direct tax. The Supreme Court decided that an income tax is a direct tax, and therefore declared the law of 1894 to be unconstitu- tional because it did not apportion the tax to the States accord- ing to their respective populations. I am not a lawyer, but it has always seemed to me that if an income tax is not a direct tax then nothing except a poll tax is a direct tax. Justice Harlan dissented from the Supreme Court in the in- come-tax decision. For this act and for others Senator Owen declares that Justice Harlan is a patriot and deserves the thanks of the country. I always admired the late Justice Harlan and I revere his memory, but I can not forbear to point out to Senator Owen that it was Justice Harlan who handed down the Kansas tax decision and the Arbitration Act decision which the Senator denounces in the same indictment. SOME MODERN INSTANCES. While Senator Owen is searching the records of the last 17 years to discover decisions of the Supreme Court with which to find fault, it is well to cite a few of its decisions which have upheld recent legislation. There is no need to go back 17 years. I shall confine myself to decisions fresh in all your memories, decisions handed down within the last two or three years. For examples, I call your attention to the decisions in favor of the Oklahoma Bank Act, the Oregon Initiative and Referendum Pro- vision, the North Dakota Coal .Rate Act, the United States Cor- poration Tax Act, the United States Safety-Appliance Act, and the United States Employers’ Liability Act. Moreover, during the last few years there have been numerous* decisions in cases arising under the Interstate Commerce Act and the Railroad Rate Act which have very much strengthened the hands of the Interstate Commerce Commission in exercising its control over the railroads. ' By a number of recent decisions of the Supreme Court the right of corporations to withhold their private books and papers from inspection by the authorities has been practically annulled. I by no means deny that some cases have occurred in which the courts in some of our States have failed to construe con- stitutional provisions in the light of present-day conditions. Each and every one of these cases has been violently brought before the public, while the numberless cases in which the State courts have shown themselves fully alive to the expansion of modern thought have passed quite unnoticed. 37725—10830 10 Throughout this discussion it is well to remember that only that small percentage of laws which contain provisions of doubtful meaning or of doubtful constitutionality is likely to require interpretation by our Supreme Courts, State or National. A SELF-CONTAINED REMEDY. After all, a decision that a wise law is unconstitutional carries its own remedy with it. If the decision is correct, experience has shown either that the law will be amended or else that the Constitution will be altered in the prescribed manner. If, on the other hand, the decision is incorrect, other courts in other States will rule differently on the same ques- tion. A new law will be passed, substantially the same as the old one, and this time it will be found constitutional. THE RECALL OF JUDGES WILL BE SLOW TO SHOW RESULTS. I assume that we shall all agree that the Recall of Judges, if it should be adopted, would be slow to show evil results, even though every day it might be undermining our system of gov- ernment. If the State were to dissolve the marriage tie, the results would by no means show at once. Most of us would continue to live with our wives as heretofore, but here and there, day by day, family life would be undermined by hastily contracted and quickly dissolved alliances until at last the whole rottenness of the system would be exposed. For 50 years after it joined the Union, the State of Rhode Island lived under a constitution or charter which practically could not be amended. It was a thoroughly vicious system, as all men can see to-day, yet the State lived under it for half a century before it resulted in the armed uprising of the people known to Amer- ican history as Dorr’s rebellion. If, as I believe, .the adoption of a provision for the Recall of Judges should put fear into the hearts of men who ought to be fearless, it by no means follows that all at once the entire bench would become cowards. The poison would be slow but sure. It might be many, many years before the public would realize that it was suffering from cowardly judges, that industry lan- guished, perhaps, because capital had become timid, and that men’s rights were but doubtfully assured. Even then it might be many more years before the people would surrender the power of Recall. Flatterers of the voters would prove to them that all which was needed was a few amendments, larger per- centages of the population to sign the Recall petition, and changes of that sort. If the people once decide to assume the power to Recall the Judiciary, even if it prove to be a great error, yet they will not relinquish that power until the havoc which it has wrought is patent to every eye. 37725—10830 li TIMID JUDGES. The people believe that Congressmen are cowardly. To some extent that is the truth. How could it be otherwise? Can a married man, middle-aged or advanced in years, face with the dauntlessness of a hero the prospect of a return to private life, followed by an attempt to gather together the remnants of a shattered law practice? Unless he has means of his own, such courage is hardly to be expected. Can any Congressman, rich or poor, fail to quiver at the thought of the wound to his pride and self-esteem w r hic*h defeat w r ould entail? He w’ho could descend the ladder of power without pain and without humilia- tion never could have climbed it at all. How can we be otherwise than cowardly? If against our true beliefs w r e bow to the wishes of our electors, then they rightfully despise us. If, on the other hand, we fail to yield, then they rightfully defeat us. In politics, as in w 7 ar, long life and courage do not often go hand in hand. If it w r ere other- wise, courage would not be courage but rather policy. Many of you have been judges. Most of you are of the caliber of w T hich judges are made. Place my friend here at my left on the bench with a life tenure and he will be as brave and impartial and upright as a man can be. Place him on the bench for a long term of years and he will be a little less brave and a little less impartial, especially as election time or the time for reappointment draws near. Place him on the bench for a term of five years- and he will be timid and yielding. Suspend the Recall over his head and he will ultimately become as timid as we Congressmen. The old traditions of the bench will support his independence for a while, but sooner or later the same causes which make us timid will produce a like effect on him. Let us concede that in the nature of things Congressmen must be more or less yielding and more or less timid; do the people wish their judges reduced to this same level? “ But,” says the academic philosopher, “ the people will make up their opinions according to a judge’s full record. They will respect a coura- geous judge and will refuse to recall him.” Experience has taught all practical politicians that it is a great error to suppose that men will habitually vote for the candidates whom they respect. As a rule, men will vote for the candidates who will give them what they want, and men easily persuade themselves that that w^hich they w T ant ought in justice to be given to them. Furthermore, it is not true that men as a w r hole judge candidates by their entire records. Men forget, new voters come forward, and a candidate is only too likely to be judged by his most recent action. One of the most moving sights I ever saw in this Hall w 7 as at the expiration of the last 37725—10830 12 Congress, when a venerable Democratic Member arose to bid us farewell. He liad served his district and the people faithfully for 20 years, as we well knew. He had never been attacked by his constituents for any vote he ever cast except one, but that one vote was fatally fresh in the minds of the people. He had voted on the unpopular side on a question of the rules of the House, and it was feared that he might do so again. No po- litical change had taken place in his district; but his former services were forgotten and he was defeated. COMMON GROUND. I suppose that we shall all agree that no plan for the selec- tion or tenure of judges can be perfect. “ To produce good without some admixture of ill is the prerogative of the Deity alone.” What we are all seeking is not a perfect system, but the best method by which we may obtain and retain just and impartial judges. I suppose that we shall further agree that if the recall is once established as the law of the land it will not be possible to restrain its use. Those who believe that it will be used only as a last recourse will find that it can as readily be used as a first resource. The contention that public business should be conducted on the same principles as private business, and that every corpora- tion retains the right to recall its agents, appears to me hardly worth an answer. In the first place, the judge is not an agent, but, rather, a referee. In the second place, public business can never be conducted like private business for the simple reason that it is not private business. In all private corporations men vote in proportion to the number of their shares. Does anyone suppose that such a system could be applied in matters of gov- ernment? Stripping the discussion of the Recall of Judges by the peo- ple of all minor issues and of all casuistry, two great questions remain. First, ought judges to be more accountable to the people than they are now? Second, if greater accountability is desirable, will or will not its advantages be more than offset by an inferior type of judge on our benches? OUGHT THE MAJORITY TO RULE WITHOUT RESTRAINT? The theory that the majority of the people should have the right to recall judges who render decisions not to their liking, and the theory that the people should have the right to recall or overrule the decisions themselves, both rest on the assump- tion that the majority should have the right to govern in any way that it sees fit. Here is the fundamental error. The ma- jority must govern, yet it must not govern for the majority alone, but for the whole people. In order that it may not sac- 37725- 10.330 rifice the rights of the minority, their rights are set forth and protected in the Constitution. The United States Constitution prescribes the powers which shall vest in the National Government. It also enumerates cer- tain powers which neither the National nor the State Govern- ments are to possess. For instance, the Constitution forbids either the National or the State Governments to pass a law taking away any man’s right to be tried by jury, if he is ac- cused of crime. It forbids the passage of a law taking away one man's prop- erty and giving it to another man or to any number of men. It forbids the passage of a law permitting slavery. It forbids the passage of a law depriving any man of his vote on account of his race. It forbids the passage of a law impairing the obligation of a contract. For example, if the State of Massachusetts were to issue 4 per cent bonds to the people, then the State is forbidden to pass a subsequent law reducing the rate of interest to 3 per cent on the bends already sold. IS MANKIND JUST? Most men will admit that all those provisions in the Constitu- tion are just and sound. Many of you perhaps will say that the majority of the people would never at any time vote to set aside any judicial decision based on those principles. I am by no means so sure of that. Let us see. Do the people always allow jury trials to men accused of crimes which arouse violent popular indignation? The record of lynchings participated in by entire communities would seem to show the contrary. Are men always considerate of each other’s property rights? If the question were put to the whole people to-day whether men of the Slavonic race, for instance, should have the right to vote, are you quite sure that the majority would not vote “No”? If I recollect rightly, I have heard of States trying to re- pudiate their bonds. Suppose some small State should issue bonds foi* internal improvements at 4 per cent interest, and sup- pose that those bonds were taken by Wall Street capitalists. Suppose, furthermore, that, times were to become hard and that this State needed money for its own citizens, are you per- fectly sure that a majority of the people of that State, under the guise of a special tax or otherwise, might not vote to re- duce that interest to 3 per cent? Even the fact that those bonds had been sold by the Wall Street capitalists to savings banks might not save them, and the poor depositors in the savings banks might well be the true sufferers. 37725—10830 14 Now, if a majority will do any or all of those things, will it not also overturn any decision of a court which tries to inter- fere, if the Recall or Review of Court Decisions is permitted? Will that majority tolerate any judge who stands in the way of its will if it has the right to recall him? Does not the whole history of the world show that unrestrained majorities are tyrannical and unjust? Ask the first Irishman you see whether he thinks the English majority has been just to the Irish minority. The fact is that in its very nature a constitution is a con- tract which the citizens of a country make with each other, promising each other to do certain things and not to do certain other things, until the contract or constitution shall be changed by amendment. And right here appears the fallacy of the argu- ment that if the people are competent to adopt a constitution they must be competent to declare what they meant when they adopted it; in other words, they must be capable of interpreting it. This means that a majority of the people is the proper in- terpreter of the meaning of a contract or constitution made especially to secure the rights of the minority. In other words a majority which has made a law is to be empowered with the right to decide whether or not the provisions of its own law fall within the limitations previously agreed upon by the Con- stitution. That this position is untenable can be seen by reduc- ing an illustration to a small scale. A PACIFIC ISLAND THE CONSTITUTION INTERPRETED BY VOTE OF THE PEOPLE. Suppose five men live on an island in the Pacific, and sup- pose that they all raise cattle. Inevitably disputes will arise, and some sort of government must be formed to prevent blood- shed and destruction. They agree to fence off their lots and to keep their cattle within their own boundaries and not to slaughter or appropriate each other's animals. That agreement is a constitution. The strongest man and the weakest man alike agree to it and all the men disarm. There comes a heavy storm and blows down one man’s fences. His cattle escape, damage his neigh- bors’ crops, and pasture on their lands. Thereupon his neighbors each slaughter one of the escaped animals for his own use. The owner of the cattle declares that his neighbors have vio- lated the constitution by slaughtering his cattle. His four neighbors contend that he himself has violated the constitution by not keeping up his fences and that they have suffered damage thereby. “ Moreover,” they say, “we. are a majority of the peo- ple and we decide that we have not violated the constitution.” Whereupon the owner of the cattle would probably arm himself 37725—10830 15 once more and. hire one of tlie people to fight on his side. How much better it would have been if those five men in the first place had chosen the wisest man as judge and had agreed to regard his decisions as final. Perhaps you think that the ma- jority of those people were entitled to interpret for themselves the constitution which they had adopted. HAVE HUMAN BEINGS NO ABSOLUTE RIGHTS? A little over half a century ago the world was startled by a doctrine which found great currency in many States of the Union. The dictum went forth that the negro had no rights which the white man was bound to respect. And now the doc- trine is gaining ground that the minority of the people have no rights which the majority may not vote to overthrow if it sees fit. That, in plain English, is the doctrine of the “ Review of Judicial Decisions by the People.” The doctrine of the “ Recall of the Judiciary by the People” is not quite so extreme, because some courageous judges will be found who will face the recall and face a poverty-stricken and humiliating old age rather than render a decision, no matter how popular, which runs counter to the Constitution. Just so a number of Republican Senators were found who had the courage to break away from the Republican Party and vote against the impeachment of Andrew Johnson. Nearly every student of history to-day recognizes that those Senators were in the right, yet no one of them was reelected to the Senate, and it is' told that one of them ended his life as a crossing sweeper. THE BILL OE EIGHTS. There is no case arising under the Constitution to which there are not two parties. If the question in dispute rests on the constitutionality of a law, then there is a majority of the people on one side and a minority of the people on the other. To hold that the judge is the agent of that majority is to make of him an advocate, not a judge. The Massachusetts Bill of Rights, adopted in 1780, declares : It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit. But can a judge with the recall hanging over his head be as free, as impartial, and as independent as the lot of humanity will admit? Will dependence on the majority lead to independence of the wishes and hopes of that majority? Rufus Choate describes the duty of a judge in these words : He shall know nothing about the parties, everything about the case. He shall do everything for justice ; nothing for himself ; nothing for his friend ; nothing for his patron ; nothing for his sovereign. If on one side 37725— 10830 1G is the executive power and the legislature and the people — the sources of his honor, the givers of his daily bread. — and on the other an indi- vidual nameless and odious, his eye is to see neither, great nor small. Do you believe that judges, with the sword of recall hanging over them, could possibly avoid being conscious of the probable political consequences to themselves arising out of unpopular decisions or out of decisions against powerful interests or against powerful counsel? WHAT SORT OF JUDGES SHOULD WE GET UNDER THE RECALL SYSTEM? In a certain city in Massachusetts it used to be said that no mayor could ever last long. If he enforced the liquor laws, he was defeated, and if he refrained from enforcing them, he met the same fate. Do you care to put your judges in that position? What sort of men do you think would consent to become judges under such conditions? Let any lawyer of standing ask himself whether he would accept the position of judge under a recall system. Most of you will say “no.” Failures at the bar might clutch at the straw. Ambitious young lawyers might be candidates under this uncertain tenure. Probably most of these ambitious young lawyers would accept the office as an advertisement and a help toward building up the private practice to which they intend to return. How many successful men deeply learned in the laws would care to put aside their practice for the uncertain tenure of a judgeship? The salary of a judge is small compared to that which the majority of our Federal judges could earn in private practice. Yet they have accepted the smaller salary because the appoint- ment assures their future for life, modestly but very honorably. Once establish the Recall and every able man before becoming a judge will carefully weigh the situation which will confront him. He will not fail to realize that he may be called upon to decide questions which involve the press, which involve elec- tions, which involve religious questions, which involve powerful corporations, which involve employers and employed, which in- volve liquor laws, which involve cases for damages where the com- munity is the defendant and some unpopular citizen the plaintiff. No judge can escape such embarrassing cases, and no human being can deny that often a judge would be in danger of re- call, no matter which way he should decide the cases brought before him. Will such a prospect as that attract the kind of man whom the people desire as judge? Says the casuist, “ Do you mean to say that an honest and upright man will hesitate to accept a judicial office merely because he may some time be called on to face a fair trial by the citizens? Can he not trust the people to acquit him if he has done no 37725—10830 IT wrong?” I mean to say exactly that. Every man within the sound of my voice often does things which he feels to be right, knowing full well all* the time that he might have the greatest difficulty in persuading a censorious world of the purity of his motives. A “ FAIR TRIAL BY THE CITIZENS.” But would the Recall be a “fair trial by the citizens”? By no means. It would be a trial in which the accused must face not only his judges but at the same time another candidate for his position. Perhaps this other candidate might be more popular. Perhaps while the judge was secluded in his office the other candidate might have been continually building up his political strength with the new voters. A fair trial im- plies that the defendant may summon witnesses and cross- examine them. A fair trial implies that the defendant's side shall be heard by jurymen who shall listen attentively to the whole case. Under the Recall the accused has no such rights. He can not bring before the public the newspapers or magazines which have been breathing insinuations against him. He can not cross-examine his accusers. He can not compel voters to listen to his side of the case. He can not compel the newspapers to be just in their treatment of the evidence. No one can picture the situation of such a judge better than it was pictured on the floor of this House last May : The recall is a political indictment found without evidence, charg- ing no offense, moral or legal, presented to the entire community as a court. The defendant is stripped of all presumptions. He can not answer the charge, because no charge is necessary to convict him. The answer is made that the recall simply affords the judge an oppor- tunity to go before the people at another election. Yes; but how does he go? Docs he go as a clean-hearted, clear- headed candidate, resting his claims upon his ability as a judge or his honor as a man? Does he go with pride gathered as the fruits of a useful life? Does he go as the embodiment of courage and patriotism? No ; he goes with character dismantled by the attacks of those who would destroy him. lie goes with his oath of office broken by the furtive whisperings of those who hold a grudge. lie goes with his honor stained by the vulgar hands of the reckless accuser. He goes leaving his family at home in the shadow of disgrace. He goes im- pugned, impeached, outraged, and dishonored, not so much to regain the worthless office, but to restore his shattered fame and recover his foreclosed honor. How will it finally affect the character of our judiciary? What ultimate contribution will it make to the stability of good government? Would tlie possibility of a trial of this kind attract to the bench the kind of men whom we need? THREE WORLD-WIDE MOVEMENTS. In the last 150 years there have been three separate epochs when world-wide discontent and world-wide change have simul- taneously manifested themselves. 37725- -10830 2 18 In the first of these epochs occurred the uprising of Poland under Ivosciuszko, the American Revolution, the French Revo- lution, and an entire change in the map of Europe. The second of these epochs was marked by the revolution of 1848 in France, the uprisings of Garibaldi in Italy, of Kossuth in Austria-Hungary, the overthrow of the Sonderbund in Switz- erland, and the Chartist upheaval in England. During this second epoch we Americans were engaged in a war with Mexico, which for a short space of time distracted the minds of the people. The spirit of discontent, however, manifested itself here, not only by the rapid growth of the movement against slavery, but by various other movements of a popular nature. For example, in a single decade seven States of the Union adopted the system of electing their judges, a policy previously unknown in this country. The present epoch of change and discontent began with funda- mental reforms in New Zealand. During the last 10 years Australia, Great Britain, Germany, and France have been struggling with the new problems. Revolutions and changes in forms of government have occurred in the last decade in Russia, Persia, Turkey, Portugal, and China. It was during the first epoch of world-wade change that our National Constitution was adopted. Singularly enough, both parties to the discussion of the question of the Recall of Judges by the people quote the sayings of the fathers who built that Constitution. Jefferson was our minister to France during the framing of the Constitution, so he had no part in the work. Nevertheless, both sides quote him to prove their respective contentions. I am by no means one who thinks that all wisdom died with the fathers; neither am I one who believes that their wisdom can be lightly disregarded. A son standing on his father's shoulders can see a greater distance than his sire, but the range of his vision is destroyed should he attempt to rely on his own stature alone. Wisdom is cumulative. Each age adds its wisdom and experience to the wisdom and experience of the ages that have gone before. How foolish, therefore, would our own age show itself to be were we to refuse consideration to the wisdom and experience of the fathers of the Constitution. In the Constitutional Convention of 1787 a proviso was offered to make the Federal judges removable by the President on the application of the Senate and the House. But one State voted in favor of this proviso; so that to-day our Federal judges are appointed by the President for life and can only be removed by finding them guilty on impeachment. You may quote Jefferson 37725— 10S30 19 as you choose. “The devil can quote scripture for his pur- pose.” The fact remains that even this modified method of removal by Congress was sustained in the Constitutional Convention by the vote of only one State. To be sure Senator Owen ex- plains all this by telling us that the fathers who wrote the Con- stitution were reactionaries. The world has always thought otherwise. The German historian, Yon Holst, in his History of the Con- stitution of the United States, gives a most interesting account of the movement toward a pure democracy in the second epoch of discontent and change which I have specified. Speaking of this country in the middle of the last century, he says — I quote from the translation: How strong this tendency to the radicalization of democracy was can best he seen by the many efforts, more or less successful, made in many States to apply even to the judicial office the principles of pure democracy. He then quotes many of the arguments and speeches made for and against bringing the courts under popular control. The reasons urged on both sides are precisely the same arguments which are being formulated to-day. Even the terminology used is exactly the same. The so-called “ Progressive Democracy ” of Mississippi undertook to interrogate all candidates for judge- ships as to what their decisions would be on the question of the right of that State to repudiate its debts. Yon Holst says: With the utmost shamelessness it was declared to be a public right to pledge judicial candidates before their election to decide questions which might be brought before their court in a certain way, because, according to the genuine democratic principle, public opinion ought to be the law of the land. The great German historian then points out that the Supreme Court had by no means stood still, as alleged, nor had it been a rock against which the waves of public opinion had broken in vain. Said Von Holst : The truer comparison would be with a glacier, stiff and firm and yet moving forward, and, as it slides down, always adapting itself to the bed on which it lies. Slowly and quietly the Supreme Court had changed with the times. Slowly, quietly, and surely will the Supreme Court always change with the times if its independence is respected. But should its independence be wrested from it, rashly and rapidly will it leap from innovation to innovation, hurriedly will it seek to reflect each irresponsible impulse of the hour, until the time will come when the world shall say that the greatest tribunal ever devised by the mind of mortal has become a victim to the folly of mankind. 37725—10830 20 SOME MASSACHUSETTS HISTORY. While other States were being swept by the fire of pure democracy Massachusetts by no means . escaped, A constitu- tional convention was called in Boston in 1853* Although the amendment providing that Massachusetts judges should he elected was voted down, nevertheless a proviso limiting their tenure to 10 years was carried. Fortunately, however, the peo- ple rejected the new constitution, and to-day Massachusetts judges, from the highest to the lowest, are still appointed for life by the governor of the Commonwealth. Massachusetts judges from the highest to the lowest can only be removed by impeachment or on address by the senate and house, if the gov- ernor and council give consent. Have the events proved Massachusetts right or wrong in ad- hering to the practice of the fathers? If our system is wrong the fact must have appeared ere now. Men can not for over a century gather grapes from thorns nor figs from thistles. Ques- tion the next lawyer you see as to which State bench stands highest and hands down the best decisions. He will tell you that the Massachusetts bench stands first of all. Do you ever hear whispers that Massachusetts judges have unholy alliances with politicians or with corporations? No; because those judges are appointed for life and fear no man. Ask yourselves whether such whispers have been unheard in the States where judges are elected for short terms in the interest of pure democracy. The movement for the Recall of Judges in those States answers the question. No Republican platform and no Democratic platform in Massa- chusetts has ever demanded the Recall of Judges. No Republican platform and no Democratic platform in Mas- sachusetts has even demanded an elective judiciary. Could this, by any possibility, be the record if our system had proved a fail- ure? In the past year it has fallen to the lot of our Democratic governor, Mr. Foss, to make many appointments to the Massa- chusetts bench. His selections have commended themselves to everyone. I read in a newspaper a little while ago of an inter- view between the governor and a certain Republican, who had called to congratulate him on his appointments of judges. In the course of the interview Gov. Foss explained that he had experienced great difficulty in getting the best men to serve. Do you think that his task would have been lighter if these men had been obliged to face the torture of a political canvass and an uncertain tenure? Can it be that the people of Massachusetts are so different from the people in other States, or is it the fact, perchance, that 37725—10830 21 our system is the true system? For myself, I feel that the movement to control the judiciary, begun in the middle of the last century under the guise of progress, has proved a step backward instead of a step ahead. THE RECALL OF JUDGES BY ADDRESS OF TIIE LEGISLATURE. Of late the Massachusetts constitutional provision for the re- moval of our life judges by address of the legislature has been quoted as a precedent for the Recall of Judges by the People. Yet no one, so far as I can find, has made a study of the question to see whether in Massachusetts this provision has worked well or worked badly or has simply been a useless vermiform appendix of our' system. Habitually this Massachusetts constitutional provision has been misstated. Few people seem to be aware that it requires the consent of the governor, the consent of his council elected by the people, and the consent of both branches of the Massachusetts Legislature before a judge can be removed by address. This method of relieving the Massachusetts bench of undesirable judges has been resorted to but twice within the last 100 years and only five times in the history of the State. In 1803 three judges were removed — two of. them on convic- tion before the Supreme Court of extortion and the third on account of paralysis. Tlie two extortionate judges could clearly and properly have been removed by impeachment, and prob- ably the paralytic could have been removed by the same process if the legislature had so desired. Certainly that paralytic must have been neglectful of tlie duties of his office. Be that as it may, in one way or another, physically or mentally disabled judges have always been separated from the bench. I know of no one who maintains the contrary, so I doubt whether any new method of separation is required in such cases. To remove by process of impeachment a paralytic judge who refused to re- sign might perhaps seem severe, but it could be done. In the last analysis the Senate and the House are the sole judges as to what constitutes an impeachable offense. The two cases of removal by address occurring in Massachu- setts during the last 100 years are those of Judge Day and Judge Loring, both of them probate judges. Judge Day was removed on address for misconduct and maladministration in office. Clearly he could have been removed as well by impeach- ment. The most notorious case, however, is that of the removal of Judge Loring purely for political reasons. A full account of it can be found in the Diary of Richard H. Dana, one of the founders of the Free Soil Party. Judge Loring held simultaneously the office of Massachusetts judge of probate and the office of United States commissioner. 37725—10830 22 In 1854, when the abolition movement in Massachusetts was nearing its climax, Anthony Burns, a fugitive slave, was cap- tured in Boston by the United States authorities. He was brought before Judge Boring, acting in his capacity as United States commissioner. Mobs gathered in the street, endeavoring to free Burns. Bloodshed took place, and the trial was con- ducted in a court room surrounded by United States artillery- men and marines. Dana became volunteer counsel for the fugi- tive slave. In his diary he tells ns that Judge Loring treated the case with fairness. As the record was complete and the question of identity established, there was nothing for the judge to do except to surrender the slave to his master. When the legislature met an address was brought forward calling for the removal of Judge Loring from his position as judge of probate in Massachusetts. No contention was made that he was not a good judge of probate. Nothing was alleged against him, except that when acting as United States commissioner — an absolutely different office — he had performed an unpopular duty. Pas- sions were aroused, feeling w r as at fever heat, and at first no one was found courageous enough to point out the impropriety of the proposed address. Dana’s diary tells us how he asked his fellow abolitionists to help to stem the 'tide. It tells us how he went to Quincy and to Dexter, and how they agreed with him but would not help him. Finally, Dana took his popularity in his hands, went alone before the legislature, and opposed the address. Nevertheless it was adopted in the session of 1855. Henry J. Gardner, the Knownothing governor of Massachusetts, resting on his constitutional rights, refused to remove Judge Loring. The State went Knownothing again in the autumn elec- tions, and Gov. Gardner was reelected and reelected once more the next year. An address against Judge Loring was again adopted in 1857 and again discountenanced by the governor. It was not until 185S that Judge Loring was finally removed by Gov. Nathaniel P. Banks. Such is the history of the most famous instance of removal on address by the Legislature of Massachusetts. TTIE EXPERIENCE OF THE STATE OF MAINE. Now, let us turn to the State of Maine, where the provision for removal of judges by the legislature is nearly the same as in Massachusetts. Throughout the history of the State of Maine only one judge was ever removed on the address of the legis- lature. Judge Davis was removed from the bench of that State entirely for political reasons. I condense a history of the case taken from the Monthly Law Reporter. In January, 1856, owing to a question arising under the new constitution of the State of Maine, two individuals, Mr. Baker 37725—10830 23 and Mr. Emery, simultaneously claimed to be sheriff of Cum- berland County. Mr. Baker at the time held office as sheriff under an old commission which by its terms had not yet expired. Mr. Emery had been appointed by the governor to supersede him. Mr. Baker claimed that the governor had exceeded his powers, inasmuch as by the terms of the new constitution, re- cently adopted by the people of Maine, sheriffs must be elected and not appointed. Mr. Emery maintained that the time for election had not arrived, and that meanwhile all officers re- mained as before under the power of the executive. Judge Davis recognized Mr. Baker, the incumbent of the office, as the legal sheriff. For this act he was removed by the legislature nearly or quite on a party vote. The office so left vacant was not filled. The next year the political complexion of the Maine Legislature had been changed by the autumn elec- tions and a new governor had been chosen. Thereupon Judge Davis was reappointed to his position. CONCLUSION. It is idle for anyone to assert or for anyone to deny that Abraham Lincoln would have been removed under a recall sys- tem in 1861 or 1862. Neither contention can be proved. It is well to remember, however, that a large majority of the people in 1S60 voted for other candidates for the Presidency. Lincoln was the choice of a minority only, and we must not forget that men elected merely by a plurality of votes are peculiarly likely to be recalled as soon as anything goes wrong. The northern forces w^ere defeated repeatedly in 1861, 1862, and the spring of 1863. Men shook their heads and mistrusted the ability of the President. Under a recall system, can you doubt that a movement for the recall of Lincoln would have been inaugurated? That the movement would have been suc- cessful no one can say, although that is my opinion; but does anyone doubt that it would have been inaugurated? Could anything have been w-orsc? than to plunge the country into an- other presidential campaign in 1861 or 1862? Yet a minority can always force an election under the recall system, irrespec- tive of what the wishes of the majority may be. The recall advocates tell us that the device would seldom be used against judges. I am inclined to concede some force to that view. I should expect to see it used more often in the earlier years of its adoption, because throughout the Union to-day the bench is honored by many a judge who will coura- geously stand for the truth, unpopular as it may temporarily be. Gradually the bench will change. Judges wall be intimidated by the fate of their courageous associates. Men will not seek 37725--10830 24 the bench as a career unless they are willing and ready to make their decisions conform, not to the law and to the Constitution, but to the wishes of each temporary majority. The recall will seldom be invoked against a bench of timeservers. The enemies of the judiciary tell us that judges are frail, weak, erring men, like ourselves, and that their opinions are no better than our own. I grant you that judges, like all men, are by nature subject to frailty, weakness, and error. Is that a good reason for the adoption of a system which will magnify those defects? Should it not rather be the aim of our system to strengthen, to intrench, and to guard the judge against those infirmities which are the inheritances of every son of Adam? No influence in office is so purifying as fixity of tenure. If anyone doubts that fact, let him take counsel with those admin- istrators of our Government whose memory goes back beyond the time when our reformed civil-service system became a living reality. Subject a man in office to the necessity of watching the political barometer and you will find that one eye, if not both, will be watching the storm signals instead of the public service. Secure that same man in his position, provide for his support, and he will glance neither to the right nor to the left from the line of his duty. In conclusion, I can not resist the temptation to borrow an illustration from Justice Wendell Phillips Stafford, of the Su- preme Court of the District of Columbia. In ancient Rome the tribunes of the people were charged with the duty of annulling laws which struck at fundamental rights. Demagogues and designing men, whose purposes had been thwarted, advised the Romans to do away with the tribunes. History tells us that the people were brought to a wise determination of the question by the relation of a fable. “ Once upon a time,” said the tribunes, “ the wolves advised the sheep to get rid of their watchdogs be- cause they interfered with the sheep going where they pleased and were really the only obstacle to a perfect understanding between the forest and fold.” When, afterwards, the Roman people forgot this fable and gave up their tribunes, they lost their liberty, and they never regained it till they got their tribunes back. The watchdog may anger the sheep and may restrain the sheep against their impulses, but he is their security and the protector of each one of them. Let the flock think twice before it exchanges the watchdog for the wolf. 37725—10830 o