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Mr. L. D. Smith:- I make this further motion, in view of the very valuable and entertaining paper by Mr. Keeble, I think he should be allowed to always remain a member of this Association, for the reason that no man more fitly deserves to be, and for the second reason that we can not well get along without him. Therefore, I move that he be made an Honorary member of this Association.
Motion seconded and carried.
The President:-Gentlemen of the Bar Association, we have with us this afternoon as a distinguished guest of this Association, a lawyer from a much colder clime than this. My own personal knowledge of him is that some years ago he gave up being the special counsel of anybody that he might represent all who “had the price." He believes the National Anthem of the lawyers should be “If you haven't any money you need not come around.” However, when it comes to things other than law suits, there is no man in the United States who has devoted more time to what is considered by those who would preserve our republican form of government as the question of greatest interest to the country, the Hon. Rome G. Brown, of Minneapolis, whom I now have the pleasure of presenting to you.
Gentlemen of the Tennessee Bar Association, Mr. Brown.
THE JUDICIARY AS THE SERVANT OF THE PEOPLE.
By ROME G. BROWN, MINNEAPOLIS, MINNESOTA. Mr. President and Members of the Tennessee State Bar Asso
I notice from the program that my subject is mis-printed. It should read “The Judiciary as the Servant of the People." I am reminded, however, of the story told me by Judge Henderson as we were riding together to this meeting. One of the Judge's colored servants, whose regular work was that of general utility man about the stable, practiced as a side line preaching and exhorting among his people. One day he remarked to the Judge that he had preached twenty-two sermons in the past few months and that he never twice used the same text. When asked by the Judge how he could preach on so many different subjects in so short a time, he replied: “Well, you see, Jedge, Ah has twen’-two texes, but Ah allus preach de same sermon.” That is about the case with me. I have a score or more of "texes” but my sermon is always substantially the same.
In the present wide-spread discussion which has been the result of the prevalent spasm of attack upon the judiciary, there has been no more valiant defense of our constitutional system of government than that presented to you and to this country by your most worthy president, my friend, Mr. Biggs,* and by other members of your Tennessee Bar. Were it not for the special invitation which I have received to speak to you upon this subject, in which I have become interested more than ever in any other subject touching the welfare of our nation, I should hesitate to attempt at this time to interest you in any presentation which I might be able to make.
At the urgent request, however, of your president, I would call your attention to some phases of the question which possibly have not occurred to you. At the same time, I would also touch upon certain points, which, however much they may have before been presented, should in these times be rehearsed on every occasion when representative members of our profession gather together.
There are certain orthodox principles of our system of government which are so deeply rooted, such integral parts of our system of constitutional democracy, that they cannot be too often emphasized; and in these times when the heresies of disruption are sounding, widely and loudly to the popular ear, their discordant notes, and, by very force and persistence of hue and cry, attempting to drown and send to oblivion the melodious chant of the teachings of our fathers, let us, regardless of the din of fallacies, persist in our efforts, until, as in the Wagner chorus, the shrieks, even the enticing strains, of the forces of evil die away, and there shall emerge, victorious and with re
“The Unrest as to the Administration of Law.” Address by Albert W. Biggs before Texas State Bar Association at Galveston, July 3, 1912.
newed and increased predominance, truth, sanity and respect, throughout the realm, for the essential principles of our government of law.
THE DOCTRINE OF A SERVILE JUDICIARY. As against the established view, which is alone consistent with our constitutional democracy, that the judiciary is an integral, separate department of the government, with functions, the performance of which make necessary its independence from the sovereign people, it is urged that the theory of our government and of its administration, heretofore universally held and applied, has been and is wrong; and that judges and their judgments should be subservient to the changing opinions of the voters and should be the means merely of carrying out, here and there and now and then, the arbitrary will of popular majorities. It is now claimed by many that the judiciary as a whole, and that any judge as a member of the judicial department, should be answerable directly to the people, for a failure to recognize and to enforce the popular will as the paramount law—statutes, constitutions and the fundamental law of property and personal rights to the contrary notwithstanding. The issue is between the established doctrine of the judiciary as the servant of the law, upon the one hand, and upon the other the doctrine of the judiciary as the servant merely of the people.
The new doctrine is a heresy against the principles of constitutional government as heretofore established in this country. The fact that it is such heresy is not, however, in itself a sufficient answer upon the merits. The time has passed for the mere hurling of epithets, or for the mere fulmination of phrases or terms. This doctrine of the judiciary as the pliant servant of the people is represented by those who advocate the Judicial Recall, in the form either of the Recall of Judges or of the Recall of Judicial Decisions. Let us, therefore, briefly examine the nature of these revolutionary measures.
RELICS OF ANTIQUITY. While these measures are advocated in the manner of nostrums, as panaceas for some evils which exist in fact, and for many more merely imaginary, they are not, as many assume, innovations. They are, rather, worn out, repudiated theories of government, relics of barbarism, long ago proven by experience as inconsistent with a properly balanced system of government, whether in the form of a monarchy or in the form of a democracy. They had lain so long abandoned as useless, unfeasible and destructive in any system of government, that their reappearance in the present day is generally assumed as the presentation of newly invented theories of government. In fact, their advocacy today is a resurrection merely of fossils long since cast aside and buried in the sands of time.
As shown by Mr. Edward J. White in his recently published “Legal Antiquities," the Judicial Recall is, like the ancient crime of witchcraft, the trial by battle, the trial by ordeal, the punishment of death by pressure and other cruel and outworn customs, once prevalent in the administration of justice, a relic of antiquity. It is a revival of the barbarous tyrannies of the past, from systems of government under which the exercise of judicial functions rested in persons who were judges only in name and who were, in fact, merely the servile instruments by which the whim, passion or caprice of whatever power was recognized as sovereign, should be reflected. It is a relic of the once prevailing idea that the judiciary is essentially the direct servant of the sovereign power of the state. If the sovereignty was vested in a person, the tyranny of monarchy extended to the arbitrary control of the judiciary. If the ultimate sovereignty vested in the people, then the tyranny of democracy extended its control directly to the office of the judge and made him, in effect, the mere servant of the people. And it was the tyranny involved in these ancient customs which brought disaster to the governments under which they were retained.
In the oldest code of laws known, the Code of Hummurabi, King of Babylon, over 2000 years before the Christian era, it was the prerogative of the king, either to send to the judges in advance his own decision of the case, or simply to send the case to them for tiral; and if a judge should, even upon hearing duly had, attempt to modify a decree or judgment once entered, even
1. “Legal Antiquities” by Edward J. White. Published 1913, F. H. Thomas Law Book Company, St. Louis, Mo. This work is a most illuminating discussion of certain ancient customs and laws, eliminated from modern codes as relics of barbarism. The author shows that the present agitation for the Judicial Recall is merely a reversion to abuses of the past which had long ago disappeared with the growth of civilization.
if it be to correct a palpable mistake, or should otherwise act against the wishes of the sovereign, he was expelled from the bench and also penalized in other ways. This was the practice under the same code of laws which punished the surgeon by removing the hand that performed an unsuccessful operation and which penalized the unsuccessful veterinarian who failed in the cures which he attempted.?
The Judicial Recall and its disastrous results are shown in the democracy of ancient Greece. Aristeides was recalled from his high judicial office and suffered banishment by a recall at the polls. Themistocles, who refused, for favor, to declare false judgments, met the same fate. Their recall was not upon charges made, either specific or general, but was the consequence of an ignorant envy and distrust spread among the masses, whose idea of democracy was the overthrowing of authority and the display, by the humiliation of those holding high office, of the exercise of the arbitrary power left to the people as sovereign. As said by Plutarch :3
“The ostracism was instituted not so much to punish the offender as to mitigate and pacify the violence of the envious, who delighted to humble eminent men, and who, by fixing this disgrace upon them, might vent some part of their rancor.”
The recall by ostracism was accompanied by the same mischievous results which are shown today under the Judicial Recall in Oregon and California. It was not used in the public interests to promote efficiency and honesty in the exercise of the judicial functions, but to gratify selfish or partisan prejudice. As stated by Aristotle, in exercising their power of Recall by ostracism, the people did not look to the interests of the community, but used ostracism for party purposes."
So the ancient Syracusans exercised the Judicial Recall by the system known as “petalism,” voting not upon a shell, but upon the leaf of the olive tree; but this system was repealed 450 years before the Christian era, for the very reason that the fear of such arbitrary degradation deterred the best qualified citizens from taking office and because the system resulted in
2 White's “Legal Antiquities,” supra, Chapter 3. 3 Life of Themistocles, quoted in White's “Legal Antiquities,” supra.