government, legislative, judicial and executive, will cease to be separate; that there will follow the debasement of the judiciary, and above all, that there will remain no safeguard of minority rights.

To the first it might be answered that the people are already theoretically superior to the law, in that it lies with them to amend or alter the constitution. In England their control is still more direct and immediate, and the Englishman is notoriously law-abiding. Nor does it seem quite reasonable to insist that citizens will have less respect for the law if they may recall its interpreters-after formal preliminaries extending over a considerable period—than if they may defeat them at the polls.

As to the second contention-it is perfectly obvious that conviction, even in quite extreme cases of misconduct, would be well-nigh impossible. A solitary but sufficient example of the difficulties to be encountered has been furnished very recently in the notorious case of a Federal judge in a western State.

To the third objection there is a reply that the three functions of government have not in fact remained separate and perhaps could not do so practically.

In respect of the argument that good men will not offer themselves as candidates for the bench if recall hangs over them as far as civic and State officials have been concerned, a better class seems to have come into the field where the undesirable can be removed. It may equally well be so with the judiciary. For it is more than doubtful if occupants of the bench would ever be unseated capriciously, for no graver cause than merely an unpopular decision.

Those who believe in our tolerant and "non-chalant" populace deem it likely that the conduct of affairs would be attended with no visible change whatsoever. With aggregations of men responsibility and trust have a sobering effect, and the fear of doing injustice, of intrenching upon the territory of a special knowledge, will quite possibly make the recall an expedient never resorted to. And this will be more certainly the case if, as is probable, members of the judiciary would be at greater pains than now to avoid coming under suspicion, and would take a legitimate lead of the

people by pointing out where laws and procedure likely to cause offense could be bettered-a duty wherein they them-selves are tardily admitting dereliction. There will, let us hope, be less of that tendency-which calls forth the strictures of an eminent modern writer upon jurisprudence—to consider an action at law, "a game that may be won or lost by playing some particular move."

But concerning the most theoretical and therefore the most important, of the objections named-that the minority will lose its right of being assured, in so far as possible, that its case will receive unbiassed consideration at any given moment. Here there arises an issue not to be disposed of carelessly.

It is so obvious a platitude that one can with difficulty bring oneself to suggest again-what, nevertheless, appears to need perpetual reiteration-that principles of jurisprudence and government are not unchanging, or more exactly that there is but one which is so-that nothing is permanent save change.

In the History of English Law Maine reminds us that "the matter of legal science is not an ideal result of ethical or political analysis; it is the actual result of the facts of human nature and history." We are told by Bryce that "though its (the law's) leading doctrines and its fundamental institutions are in some respects essentially the same, in all civilized communities, still, every given system is . . . forever changing, growing and decaying, both in its theory and in its substance each nation, through what the Germans call its legal consciousness, the maker and moulder of its laws." And in Civil Government Locke says: "Law in its true notion is not so much the limitation, as the direction of a free and intelligent agent to his proper interest."

If we admit the above conclusions to be true, how are we to insist that there can be but one method of safeguarding a minority? In an essentially democratic community, where the average of intelligence is high and self-government has become nothing less than second nature, there may be another method more "actually the result of the facts of human nature and history," because it allows the "direction by a free and intelligent agent to his proper interest."

With us it should take the form of guaranteeing minority rights consciously by precisely that which has always guaranteed them--though unconsciously: the sense of justice and responsibility of the majority. For civic self-consciousness is the acknowledged purpose of the race's development.

If the populace has reached the point where it submits to a law guaranteeing the security of one, or any small portion of its number, the next step in advance will consistently be that it should school itself to allow that security without sense of compulsion. The whole trend of humanity, in its social relation, is in this direction. And though injustice may occasionally result, it would probably not be oftener than at present-since we cannot but allow that the integrity of the judiciary has an enemy in great wealth not less formidable than any lurking in the "spirit of democracy.”

It remains, of course, debatable whether humanityamong ourselves-has yet reached the stage where the experiment may be safely made. Yet since evolution disregarded brings about revolution, it seems safe to say that a people is ready to be entrusted with the rights it deliberately and thoughtfully claims, and that it will very soon learn to use them properly. Upon what other principle, indeed, does our state exist, or progress?

Academy of Political Science (N. Y.). Proceedings. 3: 141-6. January, 1913.

Recall of Judges. Gilbert E. Roe.

If there ought to be any distinction, in my judgment it would be in favor of applying the recall to judges rather than to many other public officials. Here is my principal reason for saying this: the judges, more than any other class of officials, ought to be close to the public if they are going to perform their proper function in this government. The President, with his control of the army and navy and the vast influence which he has the means of exercising, may be able to carry forward a policy for a time without popular support; the legislative branch of

the government, with its control of the finances, also is measurably independent of the people's will; but the courts have no army and navy, no control of the finances; they must depend for their support upon the approval of the people of the country, or they must fail in their function. Therefore I say that whatever brings the judge and the people closer together is in my judgment a good thing, and that is the reason-one of the reasons, at least-why I advocate the application of the recall to judges.

The recall would be a good thing not only for the judge and his decisions, but for the people themselves, and after all that is the real reason why we want any of these democratic measures. I am not at all sure that where their are direct primaries better candidates have been nominated than under the old system, but I do know this, that it has been a good thing for the people; the discussion, the agitation, the education, the interest excited has laid broad and deep the principles of democracy in those communities, and that is why it has been good.

That there does exist in this country to-day a widespread distrust of the courts-not of individual judges merely, but of the courts and their purposes, and a dissatisfaction with the result of work of the courts,—is a fact that we must all admit. I have tried to analyze somewhat the basis or reason for that dissatisfaction, and as briefly as I can I want to tell you my conclusions about it.

Since the foundation of this government, the people have been reaching out and gaining more and more complete and direct control over both the executive and the legislative departments of the governments. You know that the constitution provided for the device of an electoral college because it did not trust the people, because the framers of the constitution were unwilling to commit to the mass of people the important function of electing the President of the United States. Then also it was felt necessary that one branch of the legislature should represent the wealth and financial interest of the country, hence the provision for electing United States senators by state legislatures and electing them for long terms. At once the people set about destroying these barriers, and so they

found a way to get around the electoral college, and to advocate the constitutional provisions providing for the election of United States senators by state legislatures. The direct primary is another step in the same direction, so that more and more all through the years from the time the constitution was framed to this moment the people have been seeking and securing more complete control of the executive and legislative branches of their government bending these officials more completely to their will, and as I think, properly so. But that is not the question at this moment.

With the judiciary just the opposite course has been pursued, or rather the judiciary has traveled an opposite road. With a constitution that gave so little power to the Supreme Court of the United States that John Jay, the first Chief Justice, resigned, because he said there was not power enough in the office to make it worth a man's time to hold it, starting out from that point and coming down to this time the courts by their decisions have removed themselves more and more from popular control. I am not going to enter on the discussion of the question whether the constitution granted to the court the right to declare a law unconstitutional; it is my belief that it did not. That question is one of the most interesting in all our history. But we all agree upon this, that when the doctrine was first announced that a court could declare a law unconstitutional, always that announcement was coupled with the expression that it was a power so dangerous for a court to exercise, so dangerous to what we call popular government, that a court would never exercise it except in a case that was free from all doubt. When you put a statute side by side with the written constitution and it was perfectly plain that the two were in conflict only then could the court say that the statute was unconstitutional and must fall. Everyone agrees that that was the position the court took when it first announced the doctrine. But today, so far have our courts got away from that old landmark laid down by Marshall and other great judges of that day that no one knows to-day, when a legislature or the Congress passes a law, whether it is