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.2

upon

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 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.

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

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 amend