fied to elect their own judges, most of them largely unknown, many of them wholly untried, that these same people should not be qualified after the judge has had a fair and reasonable opportunity to make good, to pass in judgment upon him and to wisely remove him for good and sufficient cause when he fails to efficiently and justly administer his trust. When we nominate him we pass in judgment upon his qualifications, when we elect him. we pass in judgment upon his qualifications, and that is all that we do when we vote to remove him. It is almighty strange that the sovereign citizen has his lucid intervals only when he nominates and when he elects. Thereafter he becomes the part of the mob when he criticises and censures the court, or when he asks by petition to vote to remove the judge.

The old theory of elective officers as first provided for in the various state constitutions, especially in staid old New England, was for short official terms. Why? So that if the officer proved incapable, inefficient, corrupt or unrepresentative of the best thought and life of the people that when he came up for re-election he could be defeated. Frequent elections are but frequent opportunities to recall the judge. Judge Redfield, one of the most eminent jurists. that ever sat on a bench in the state of Vermont or any other state, was elected and reelected annually for twentyfive consecutive times. It did not inpair his usefulness, his inefficiency; his proper independence or his distinguished service upon the supreme court of the state of Vermont.

It would seem eminently fair that the men who select the judge; the men whom the judge is to serve, the men who pay the judge, should be the men to remove him for misconduct in office.

But you say the people will make mistakes. As the legislatures of the several states may be justly faulted for the nonuse of the power so the people will be faulted for abuses. of the power. Well, the proof of the pudding is in the eating. The proof of the wisdom of any principle is in its practical application.

Oregon is the hotbed of American progressive thought and legislation. They have had a provision in their constitution authorizing the recall of judges for good cause for the past four years. During that time how many judges

have been recalled? Not a one. How many elections have been held to recall a judge? Not a one. A year ago an attempt was made to recall the trial judge, Judge Coke I believe, for laying down the law of murder too favorably for the defendant. The prosecutioners were greatly disappointed and very indignant. They started a petition for the recall of the judge, but it met with such general disfavor among the people that it was soon given up as a hopeless case. Another tribute to the good sense, the sound judgment and fair play of the American people.

There is no public office requiring any higher order of talent, tact and temperament than that of the trial judge. You cannot tell who will make the most serviceable and efficient judge, whether he be the office lawyer, the author lawyer, the trial lawyer, or a combination of each. There is absolutely no way of forecasting his efficiency except by giving him an actual trial on the bench. When he takes three days to try a case that should occupy but one, the public are losing one hundred dollars per day, the parties to the case probably as much more, and the cases to follow are being delayed and delayed because of the slowness and the dilatoriness of the judge in the administration of justice. If the newspapers give the proper publicity to his work on the bench, as above indicated, the cobblers and potterers will become known and can be recalled from the public service as they are now recalled, removed or discharged from private service. The recall election is the only way to reach such inefficient judges who permit the senseless, ridiculous pettifogging in the trial of cases. It is one of the greatest hindrances and delays in the administration of justice. You cannot impeach a man for general inefficiency, but it is mighty important to the public to have the right to recall him.

Atlantic Monthly. 107:452-64. April, 1911.

Nullifying the Law by Judicial Interpretation. Harrison W. Smalley.

Aside from the conduct of bad or ignorant judges, the practice of judicial interpretation has developed very serious

evils, which are now beginning to make themselves felt. Four of these evils I wish to discuss at some length.

First. A fairly complete interpretation of an important statute can be obtained only after prolonged delay, and by the incurring of large expense.

Under our present system statutory construction is an incident of litigation. A question of interpretation can receive no official consideration until it arises in connection with a lawsuit, and no answer can be regarded as authoritative until the case is settled, not by the trial court, but by the highest court which is competent to pass upon it. Thus the slow-moving 'wheels of justice' delay the answer for a year or more,-usually more,-and the trials, appeals, and other supplementary proceedings are likely to postpone it for at least another year. And as in each case only the particular questions of construction necessarily involved in the controversy can properly be settled by the court, it frequently happens that a series of cases must be carried to final judgment before all the dubious points in one act, or even in one section of an act, can be fully cleared up. The expense of this litigation must be borne by some one, and is not an item to be ignored; but the more important phase of the matter is the delay. Many years must pass in which the people are in doubt as to the meaning of the statute; and if, as is often the case, it is an act which affects industrial interests, the prolonged uncertainty is a depressing factor in the business situation.

A capital illustration may be found in the Sherman AntiTrust law. Passed by Congress in 1890, its meaning has not yet, after twenty years, been fully elucidated by the Supreme Court, although many cases have been tried under it. Some people are so discouraged by the failure of protracted litigation adequately to illuminate the act, that they are inclined to regard it as hopelessly obscure. President Taft, on the other hand, seems confident that the significance of the law has in the main been explained by judicial decisions. But, after all is said, the fact remains that under our present system twenty years have not sufficed for a full interpretation of a statute which was so important that a complete understanding of it should have been gained by the people of the country with the least possible delay. Any number of other

illustrations may be given, and some will be found in cases mentioned later in other connections.

Second. The existing practice compels our judges to assume an attitude on current economic and political questions. As has been said, law-interpretation is law-making, and to the extent that judges are engaged in the exposition of statutes they are making laws for the people. They can no longer, therefore, maintain the position of arbiters, impartially applying rules of the law to the controversies of litigants. They have become legislators, engaged in the determination of governmental policy in matters of political and economic character.

A law is passed by the legislature for the regulation of corporations; but whether the regulation shall be mild or severe rests within wide limits, with the judges who interpret it. By one construction, they can nullify the law; by another, they can hold the corporations to a very strict account. And so it is necessary for judges to take an attitude, to reveal their personal convictions with reference to those 'problems of the day' which are the subject of so much important legislation. Almost inevitably their decisions disclose whether they are more in sympathy with the trusts, the financial interest' and those magnates popularly known as 'malefactors of great wealth,' who so loudly proclaim their 'vested interests' and 'property rights,' or with the great body of the people who urge in reply their claims of 'popular rights' and the 'public welfare.'

Similarly, judicial interpretation may well serve to indicate whether the judges sympathize with labor or with capital; whether they are in accord with movements for the alleviation of the working conditions of labor; and, in general, whether they favor those modern measures which aim at the elevation of the moral plane of competition and of business, and which do not refuse to make some sacrifice of the traditional rights of liberty, contract and property, when that is necessary in order to attain the end desired. Their decisions disclose these things because it is practically impossible for them to conceal their point of view in construing statutes dealing with such subjects.

But this necessity of descending from their judicial aloofness into the turmoil of present-day industrial and political struggles, is not a good thing from any point of view. It detracts from the dignity of the judges, and diminishes the respect which has so long been felt for our courts. Worst of all from their point of view, it exposes the judges to a, new species of criticism,-a criticism not of their learning, nor of their judicial fairness, nor of their legal acumen, but of their economic policy. The wisdom and righteousness of their ideas in regard to great matters of public policy are being called in question, and from the effects of such criticism they should surely be protected, if any means of protection can be found. Moreover, as will presently appear, the entrance of the judges into the arena of industrial conflict is not helpful to the people in their efforts to solve the problems which perplex them.

Third. The existing practice removes carelessness in legislation.

It is the duty of a legislative body to give to the people laws which are as precise and clear as possible; but this is a duty which is often neglected, for legislators know that any confusion, ambiguity, or uncertainty in a statute will in the long run be cleared up by the courts, and this knowledge is one of the causes which are producing careless drafting of bills. Indeed it sometimes happens that legislators deliberately frame an act so that its meaning will not be clear, in order to throw on the courts the task of determining the question of policy involved, thereby avoiding the necessity of deciding it themselves.

An excellent illustration of this line of conduct was furnished by Congress in the passage of the Hepburn bill in 1906. Since that measure conferred on the Interstate Commerce Commission, power to fix railroad rates on complaint, it was of the utmost importance to define precisely the limits of that power. Should the Commission be allowed to regulate rates freely except as limited by constitutional restraints, or should more narrow restrictions be placed upon it? Unable to agree on this question, the differing factions in Congress at last concurred in a phrasing of the law which left