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the selection of only the lowest types of demagogues for public offices.*
The same ancient custom prevailed in the Roman Republic, where officers, judicial or otherwise, and even citizens. could be tried upon imaginary charges at the forum of the polls, and subjected to banishment or death. This was the application of the Judicial Recall under the Roman Republic. Under the Empire, the Judicial magistrates were removable at the arbitrary will of the emperor.
The early English judges were merely the servants of the king, who had the power to remove them at will, if they refused to do his bidding; and before the Magna Charta was forced from King John at Runnymede, a litigant was obliged to purchase the favor of the king if he were to obtain justice in the king's courts. Under this system, the standards of the English judiciary were low. The judges were mere servile tools of the king, mere instruments of “graft,” as we would term it today. They were servants, not of the law, but the personal servants merely of their sovereign patrons.
These abuses were not remedied until by the statute of William III., it was provided that the judges should hold their offices, not during the pleasure of the king, but during good behavior, and that they should be removed only upon the address of both Houses of Parliament. Ever since that change the English judges have never been, either in theory or in fact, servants of the sovereign, nor servants of any persons or parties. They have been servants only of the law, administering the law as they found it to be, impartially, without fear or favor; and the respect since paid by the English Judiciary to the majesty of the law in that country has challenged the admiration of the world.
OURS A GOVERNMENT OF LAWS. It was to avoid the evils and abuses of ancient tyrannies, of the tyranny of monarchy as well as of the tyranny of democracy, that our constitutional democracy was established and that an independent judiciary was provided, with judges holding their
4 White's “Legal Antiquities,” supra. 5 White's “Legal Antiquities," supra, Chapter 3.
office during good behavior and removable only for sufficient cause and after hearing and adjudication. For over 100 years our constitutional democracy established under a system of express written checks and limitations upon the sovereign power, has stood the test of all trials which have had the effect fully to test its efficiency, its stability, its powers of elasticity, its effiectiveness in the protection of the property and liberty of its citizens and its ability to meet and adapt itself to new conditions. It was framed by man, it is administered by man; and for that reason the administration of the various departments of the government, including that of the judiciary, has been and must be accompanied by the discovery, here and there and now and then, of incidental inefficiencies, evils and even abuses. Some judges, not many, have been dishonest. Some judges, though honest, have been inefficient. Exact justice in this or that instance has not been administered. The power, however, of remedy by reform of procedure, by constitutional legislative enactments, and, if necessary, by deliberate constitutional amendments, has been at all times carefully provided.
THE JUDICIARY RECALL AGITATION.
But not content with the legal and constitutional forms of remedy, consistent with the principles of the constitutional system of government under which we live, a new agitation, under the guise of reform, has sprung up which directs its forces of attack against the very foundations of our government. Beginning with the local adoption of the Recall of Judges in Oregon in 1908 and followed later by the adoption in California and some other states of similar measures for the Judicial Recall, the movement has become nation-wide. Its significance and dangers are, in many states, under-estimated, because here and there, up to the present time, no special local demand for the Judicial Recall has shown itself. Within the past few months, however, the Recall of Judges by popular vote has just been proposed by the Kansas legislature for adoption by the people. In Arkansas, a constitutional amendment for the Recall of Judges, initiated by the people, was passed at the 1912 election, but was held by the state supreme court not properly submitted, and, therefore, not adopted. A constitutional amendment for the Recall of Judges has recently been adopted in the states of Arizona and Nevada. In Colorado a constitutional amendment has been adopted, not only for the Recall of Judges, but also for the Recall of Judicial Decisions. Under the latter amendment a Supreme Court decision declaring unconstitutional any state statute may be made ineffective by the majority of the votes cast by the state electors at a referendum election held to pass upon the decision complained of; and if the decision applies to certain city, or city and county, charter provisions, the decision may be recalled by a majority of the votes cast by the electors of the municipality in question at a referendum election held to pass upon such decision. Thus is established, in Colorado, a sort of local option as to control over final judgments of the highest court of the state. The Minnesota legislature has just proposed for adoption a constitutional amendment providing for the Recall of Judges. In many of the forty or more state legislatures which have just adjourned, measures for constitutional amendments providing for the Judicial Recall were presented, and in some of them, while not successful, received surprisingly strong support. In North Dakota, the measure was lost by only one vote.
In the recent Massachusetts legislature, a measure was presented and strongly urged authorizing the Recall of Judicial Decisions in all cases when “a law otherwise duly enacted by the legislative authority of the commonwealth shall be held by the Supreme Judicial Court to be in violation of the constitution.” In April last, there was introduced in the Congress a joint resolution proposing to the states the election of all federal judges by vote of the people with a tenure of twelve years, and providing for a Recall of all judges, both of the Supreme Court and inferior courts, at any general election at which presidential electors shall be chosen. A senate joint resolution was introduced in December, 1912, proposing a constitutional amendment providing that any decision of the Federal Supreme Court declaring unconstitutional an act of the Congress, may be submitted by the Congress to the electors and that by vote of a majority of congressional districts and of
6 See House Joint Resolution 26, 63rd Cong., 1st Session, introduced April 7, 1913, by Congressman Lafferty.
the states, such act should, notwithstanding the decision of the Supreme Court, become a law.?
To this extent has already spread the agitation for the Judicial Recall. This agitation presents questions which are present living issues. They are questions, not of politics, but of science of government. We should study them, free from partisan bias, as students of science and history, and should advocate publicly and in private the conscientious and deliberate conclusions to which we come. And we should be actuated in so doing by no motive or purpose other than to perform conscientiously the duty which rests upon us as citizens and as lawyers.
A GOVERNMENT OF LAWS OR OF MEN The question which confronts us is, Shall our government remain a government of laws or shall it become merely a government of men? Shall it remain a self-limited, constitutional democracy, a government of checks and limitations necessary to insure consistency, equality and stability, or shall it and the liberty and property of those living under it, be subject at any time and directly to the unrestrained and unlimited whims, passions and caprice of temporary majorities? This distinction between a government where the law is supreme and one where the will of the people is directly supreme, a government of laws as against a government of men, is one which has been made by every authority upon the science of government from the time of Aristotle to the present date.
Today the quack and the demagogue are rampant—to the extent that the doctrines of socialism, under one disguise or another, and old, discredited theories and customs, relics of antiquity, are urged to replace the teachings of the fathers of our republic.
That species of democracy where the people and not the law is supreme is, as stated by Aristotle,
"produced by the influence of the demagogue. * * * A democracy of this sort is analagous to a trpanny, * * * The demagogues are, by referring everything to the people, the cause of the government being administered
7 Senate Joint Resolution 142, 62nd Cong., 3rd Session, introduced Decem-ber 4, 1912, by Senator Bristow.
by popular majorities, and not according to law, since their power is increased by an increase of the power of the people, whose opinion they command. The demagogues likewise attack (the courts and) the magistrates and say that the people ought to decide; and since the people willingly accept the theory, the power of all the magistrates is destroyed. Accordingly, it seems to have been justly said that a democracy of this sort is not entitled to the name of a constitution, for where the laws are not supreme, there is no constitution.”
So the demagogues today reach out for popular favor by attacking our constitution as well as the fundamental laws established expressly for the safeguarding of liberty and of property, and join the socialists in the alluring cry that everythingproperty, liberty and the fundamental law safeguarding bothshould be turned over directly to the people as a whole, to be administered, not upon any consistent theory or principle, but according to the temporary popular prejudice. Conservation is made a cloak for confiscation. Need of judicial reform is made an excuse for an attempt to wipe out the constitution and the courts. The people are fed upon that which is most destructive to their own interests. This is the day of the rule in politics of the casuist and the sophist. Our private and public councils are ruled too much by the demagogues. The remedies for ailments of our body politic are prescribed, and often administered, by quacks. We are fed upon socialism. It is the day of the rule of the phrasemaker, the peddler of fallacies, the purveyor of the non sequitur; it is the day of the rule of the muckraker, the muckraker in politics and in journalism.
Much, however, as we condemn the muckraker who extends his poisoning influence from the speaker's platform, the most vicious element in public life today is the muckraking journalist. Unscrupulous and despicable contributors, under the guise of journalists, are combined with certain degenerateminded and sordid publishers to sacrifice the name and fame or honorable men and to debase the authority and reputation of the very office which they occupy. To discriminating persons, they shock all sense of decency. To the undiscriminating, which compose a large mass of the readers, they culminate