the matter unsettled. They adopted provisions which were capable of different interpretations, thereby compelling the courts to solve a legislative problem, to determine the nation's policy as to this important phase of the regulation of railway corporations. After what has been said as to the stately progress of judicial construction, need it be added that the problem is still unsolved?

Fourth. Frequently the legislative intent fails of recognition, and a statute is made to accomplish more or less than its authors purposed.

This is by all means the most serious result of the existing system of judicial interpretation. An act of legislation, however much demanded and needed by the public, may totally fail to accomplish its end, or at least may become such a feeble instrument as to be altogether disappointing, while on the other hand, it may be applied to situations not contemplated at the time of its enactment. Such broadening of the scope of a statute is not common, but examples may be found, one of which is furnished by the Sherman Antitrust Law. That statute was designed to meet the evils of the industrial trusts, but seven years after its passage the Supreme Court ruled that it should also be applied to railway agreements and combinations.

In a large majority of cases, however, judicial construction produces an opposite result, and operates to restrict the application of statutes. In fact, the tendency in this direction is so strong that in many cases provisions of law are actually nullified by judicial interpretation,-provisions, that is, which the courts uphold as perfectly valid and constitutional, but upon which they place so peculiar a constuction as to deprive them of all their vitality. Thus many a law admirably designed for the alleviation of some distressing social or economic ill gives little, if any, of the relief desired.

Before proceeding to enforce the seriousness of this evil by reference to important laws which have been weakened or nullified by the courts, we shall do well to pause and ask why our judges exhibit so marked a tendency to interpret statutes in this manner. Two potent reasons may be suggested.

While contemplating statutes, judges are thinking of legal technical ties, and not of the social conditions which called forth the law and which it was intended to ameliorate. Often judges have but an imperfect understanding of such conditions; but however complete or limited their knowledge may be, when called upon to give a judicial ruling on the statute, the technicalities of the law control their thoughts. This is a most natural result of the character of the law in which they have been trained.

A second reason why judicial interpretation SO often proves fatal to the effectiveness of an act is to be found in the fact that, in principle and spirit, the system of law which prevails in this country, and which we inherited from England, is hostile to such iegislation. For the regulation of industry invariably means the limitation of personal and property rights in commercial enterprise; while it is the traditional policy of the law to preserve such rights inviolate. The great body of the people clearly recognize that during the last century, and especially during the last generation, serious social and industrial evils have come into existence, to the injury of the general public; and they also plainly see that, to mitigate or destroy these evils, some distinct limitations must be placed on private rights of contract and property. But our system of law has not followed the course of industrial evolution, or at best has followed it with slow and reluctant step. In the main our system of law is still lingering in the eighteenth century. Indeed, it has been so little impressed by the evils with which the public are struggling that it has modified little, if at all, its ancient declaration in favor of the protection of private rights against interference.

If such is still the avowed purpose of the law, and the declared duty of the courts, it is but natural that judges who are trained in the law and filled with its spirit, would look askance at modern industrial legislation, and should think of it, not as a body of rules which should be applied with a firm hand, but as a body of rules all out of harmony with the traditions and ideals of the law,-designed, in fact, to invade those 'sacred rights' which, in the eyes of the law,

it is the very purpose of government to preserve. Looking at industrial legislation in this way, it is only natural that judges in their interpretations should tend both consciously and unconsciously to moderate the rigor of the statutes. It would hardly be humanly possible for them to give any more force than they felt absolutely obliged to give to statutes which, from their eighteenth century point of view, are fundamentally wrong. In brief, the legal and judicial bias against legislation of this type must be and is manifested in statutory interpretation.

Recall of Judges.

T. J. Walsh.

It is nowhere proposed to make the principle of the recall specially applicable to judges, but in the general assault upon the system it is insisted that, at least, an exception should be made in the case of such officers and it is in connection with them particularly that it is urged that it offends against the requirement of the Constitution that the government of each state shall be republican in form.

In this connection profuse reference is made to comments of various statesmen of revolutionary times, warning or denunciatory in character, on the evils and perils of unrestrained democracy and on the necessity of an independent judiciary. It is ventured that the clause of the Constitution appealed to was inserted as a safeguard against the dangers that inhere in the democracy, one of which is the destruction of the independence of the judiciary, a result which, it is assumed, will ensue when the judges are subject to be recalled by the people who elect them. Until this ingenious theory was advanced it was quite generally, it might be said universally, believed that the word "republican," as employed in the clause in question, was used by way of contrast to "monarchical."

It was dread of pretensions to kinship which might be set up in some of the states that inspired the provision to which reference has been made, if the testimony of his

tory is of any consequence whatever. It is companion to that part of the last clause of the ninth section of the first article prohibiting Congress from granting any title of nobility, and the corresponding provision of the tenth section, forbidding the states making any like grant. ferring to those provisions conjointly, Cooley says:

Re

"The purpose of these is to protect a union founded on republican principles and composed entirely of republican members against aristocratic and monarchial innovations.” (Cooley on Const. Lim., 28, 6th Ed.)

Whatever persuasiveness there might be in the line of alleged reasoning by which the conclusion is reached that the systems adverted to affect a state government with a fatal anti-republican character, must appertain to the initiative and referendum, not to the recall. The former secures what has been appropriately called direct legislation by the enactment of a law in the one case and its nullification in the other. Therein lies the vice, as it is claimed, of the system, the essential characteristic of a government republican in form being, it is said, that its laws are made by delegates or representatives of the people, not by the people themselves, except as they are so represented. The recall, on the contrary, has no reference to direct legislation. It has its field only in the case of representatives chosen to make the laws, to construe them or to administer them. It can operate only in a government which is republican in form.

However, then, the system of direct legislation may encroach upon the essential character of a republican form of government, the recall is not amenable at all to the strictures of its critics in that direction. It is sufficient to say, in passing, that the Supreme Court of Oregon, in an opinion written by Judge Bean, since appointed United States district judge, in which all of his associates concurred, has held that the argument is unsound and untenable even as addressed to the initiative and referendum. (Kidderly v. City of Portland, 74 Pac., 710.) It would be surprising if any court did reach any other conclusion, in view of the prevalence of the town-meeting system throughout New England at the time of the adoption of the Con

stitution, a feature of the state government which, still persisting, has been extolled as "the wisest invention ever devised by the work of man for the perfect exercise of selfgovernment and for its preservation."

It apparently did not occur to the fathers of the Constitution that those states in which the people were permitted to legislate directly in respect to certain affairs, where the method of a pure democracy constituted a part of their system of government, were, by reason of that fact, ineligible to membership in the Union. They were all admitted, yea, invited to come in, with such local governments as prevailed among them. By the very act of admitting their Representatives in Congress that body determined that such existing governments were republican in form; and so with respect to the systems devised by the people of the new states as they were severally taken into the Union. So the United States Supreme Court said in Minor v. Happersett (21 Wall., 162), using the following language:

"No particular government is designated as republican, neither is the exact form to be guaranteed in any manner especially designated. The guaranty necessarily implies a duty on the part of the states themselves to provide such government. All the states had governments when the Constitution was adopted. In all the people participated to some extent through their representatives elected in the manner especially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is therefore to be presumed that they were such as it was the duty of the states to provide. Thus we have unmistakable evidence of what was republican in form within the meaning of that term as employed in the Constitution.'

Let this test be applied to the recall as it affects the judicial office. At the time the Constitution was adopted, in no instance was either the governor or any of the judges elected by the people. The latter were uniformly either appointed by the governor or elected by the legislature. In New Hampshire, Massachusetts, Connecticut, Rhode Island, Pennsylvania, and South Carolina they could be removed by address of that body, a majority vote sufficing in Rhode Island and Pennsylvania. Bear in mind, by address-not by impeachment. While impeachment proceedings contemplate definite charges and a trial, neither the one nor the other is requisite in the case of removal by address. A simple vote ends the official career of the individual against whom it is successfully leveled.