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The Place Occupied by the Judiciary 
 in Our American Constitu¬ 
 tional System. 
 
 Address of 
 
 . HAMPTON L. CARSON, ESQ., 
 
 ^ of Philadelphia. 
 
 BEFORE THE 
 
 D 
 
 Virginia State Bar Association 
 
 AT tHE HOMESTEAD HOTEL 
 Hot Springs, Va. 
 
 July 29th, 30th, and 31st, 1913 
 
 RICHMOND; 
 
 mCBMOKD PASS0, IK0.» PaiNTSM 
 
I 
 
 I 
 
 The Place Occupied by the 
 
 in Our American Constitu¬ 
 tional System. 
 
 Address of 
 
 HAMPTON L. CARSON, ESQ., 
 of Philadelphia. 
 
 BEFORE THE 
 
 Virginia State Bar Association 
 
 AT THE HOMESTEAD HOTEL 
 Hot Springs, Va. 
 
 July 29th, 30th, and 31st, 1913 
 
 RICHMOND: 
 
 RICHMOND PRESS, INC., PRINTERS 
 
.im 
 
The Place Occupied by the Judiciary 
 in Our American Constitu¬ 
 tional System. 
 
 Address of HAMPTON L. CARSON, ESQ., 
 OF Philadelphia. 
 
 Mr. President and Members of the Virginia State Bar Association: 
 
 My theme to-day is The Place Occupied by the Judiciary in 
 our American Constitutional System. It is a timely topic, for 
 such has been the agitation and criticism of the past eighteen 
 months that many, especially of the younger generation, have 
 concluded that our system is outworn, in need of radical revision, 
 and that any expression of reverence for the work of the fathers 
 of the Republic is lamentable Toryism. 
 
 I am going to state the matter in the plainest possible tei'ms. 
 My aim shall be to present an outline drawing, so to speak, so 
 as to exhibit the simple, strong, but majestic features of our 
 political architecture. It is rudimentary that there must be 
 law and order in the land. There must be rules for the common 
 good. There must be some one to make those rules. There 
 must be some one whose duty it is to see that the rules are en¬ 
 forced, and there must be some one to decide in cases of doubt 
 what those rules are and whether they have been broken. So¬ 
 ciety-—peaceable and orderly society—demands this. The same 
 men or set of men cannot act as lawmakers, enforcers of the law 
 and as judges. That would be pure despotism. These separate 
 functions must be divided, and to make things work without 
 friction the body that makes the law ought not to enforce it, 
 and the body that enforces the law ought not to be judge, and 
 
4 
 
 the body of judges ought not to have a hand in the making of 
 the law or its enforcement. When the fathers planned an Ameri¬ 
 can form of government they said, in substance, We will divide 
 governmental powers between three great departments, legis¬ 
 lative, executive and judicial. Congress, the lawmakers, shall 
 declare what the law shall be. The President must see that the 
 acts of Congress are carried out, and in order that Congress shall 
 not be tyrannical and that the President shall not usurp power, 
 and that the Nation shall not encroach upon the States, and that 
 the States shall not paralyze the Nation, we will write down in 
 the Constitution what powers Congress shall have, define the 
 duties of the President, and in order to secure the observance of 
 the rules by the government, we will create an independent body 
 of men to act as umpires—the Supreme Court. That body 
 must be the final arbiter, and, unless chaos is finally to rule, that 
 Court must have the last word. The dispute must be ended 
 somewhere and at some time. Men and States, Congress and 
 the President, are alike bound by it. It is the same way with 
 the State courts and State constitutions, with this difference. 
 Congress, representing the People and the States in their national 
 capacity, have no powers except such as are expressly given to 
 them by the Constitution, or are fairly necessary to the exercise 
 of the given power. The State legislatures have every power 
 except those which are withheld from them by the National 
 grant, or by the State Constitutions, either expressly or by fair 
 implication. Hence the Constitution of the United States is a 
 grant of power. The State Constitutions are a denial or a 
 limitation of power. In each case the Constitution is a restric¬ 
 tion upon the States or the People. In each case the purpose 
 is to protect the minority of the People against the tyranny of 
 the majority. A Constitution represents in the highest sense 
 the People’s will as a measure of self-defense against their own 
 imprudence or violence. 
 
 That is the American system, and it exists nowhere else except 
 where copied from us. Every student of government the world 
 over has admired and praised it as the wisest and best way to 
 end disputes over the great questions which concern the country 
 at large. The perfect balance between the departments is of 
 
5 
 
 the essence of the matter. The judiciary is the balance wheel, 
 for there would be but little use in having a Constitution if 
 Congress or State legislatures could ignore it, and there would 
 be but little use in having a judiciary if some body which did 
 not like the decision could defy it or overrule it. 
 
 It must always be borne in mind that the American judicial 
 system was an evolution, and not an accidental creation inspired 
 by the exigencies of a moment. The American judiciary is not 
 an excrescence; it is not a limb nor a function; it is an organ. It 
 is a vital part of our body politic, and it is as dangerous to hack 
 at or cut it to pieces as it would be to prick the kidneys of a man 
 with repeated thrusts of a needle or the jab of a stiletto. A 
 political Bright’s disease would soon set in if the judiciary were 
 deprived of effective working power. All questions touching 
 the judiciary are questions affecting a vital organ, an organ 
 indispensable not only to political health but to political life in 
 America itself. 
 
 Let us now consider how the judiciary got into this relation to 
 our body politic. In Colonial days there were courts, of course, 
 but they depended directly or indirectly on the British Crown, 
 according to the forms of the charters. When the American 
 Revolution came on and Independence was declared in July, 
 1776, the tie that bound the colonies to the throne was sundered. 
 Then there were thirteen separate States, each an independent 
 sovereign. Each of them went to work after her own fashion 
 to make a Constitution for herself, some of them more speedily 
 than others. All of them had judges, but in some the judges 
 were chosen by the popular body which had legislative power. 
 In others the judges were appointed by the Governor and the 
 Legislature; in others by the Governor and his Council. Thei'e 
 was no very clear enumeration or distribution of powers. Much 
 was said about the rights of the people, but it was general and 
 vague and did not specify with particularity the boundaries of 
 jurisdiction. There was a general confusion of executive, legis¬ 
 lative and judicial duties. Some States had clearer notions on 
 the subject than others. In the meantime a general object 
 lesson for all the States was presented by the affairs transacted 
 by the Continental Congress. The thirteen Articles of Confed- 
 
6 
 
 eration were tried and failed. There was no proper executive. 
 The President of Congress was merely a Speaker or moderator 
 of debates. Executive business was handled by committees. 
 There was but one house, and there were no courts. Judicial 
 functions were performed by committees. Behind all this 
 there was an absence of power. Nothing could be enforced. 
 Every resolution of the Continental Congress had to be sent to 
 the thirteen States for ratifying action, many of the States were 
 tardy, and there was no means of driving them into line. It is 
 a long story, a familiar one, a very interesting one, but finally 
 came the Convention which framed the Constitution of the 
 United States. By this time the great statesmen were ready 
 for their work. They had learned their lessons in the best 
 school, that of experience, but they had studied books as well 
 as suffered in war. They knew all about every form of govern¬ 
 ment the world had ever seen, from Achaean Leagues in Greece 
 and the Republic of Rome before the days of the Empire, and 
 the Italian Republics, and the States General of Holland, and 
 the Revolution in England and the resulting Kingdom in Eng¬ 
 land, as well as the contrasted Monarchies of Erance and Ger¬ 
 many. They had read Rousseau, Locke, Hobbes, Bacon and 
 Harrington, but, better still, they had studied Montesquieu, 
 who dwelt particularly on the importance of a separation of 
 executive, legislative and judicial power. They had seen with 
 their own eyes what a confusion there was in their own States, 
 and they had heard with their own ears what a jangle there was 
 of authority. Many of the members of the Federal Convention 
 were especially well equipped for the task of framing a National 
 Constitution. There were in all sixty-five men. Thirty-nine 
 had been members of the Continental Congress. Seven were 
 Signers of the Declaration of Independence. Thirty-one were 
 lawyers by profession, of whom four had studied law in the Inner 
 Temple in London, and one had been to Oxford and heard the 
 lectures of Sir William Blackstone. Ten had been judges in 
 their own States. One had been a member of the Committee of 
 Congress styled The Court of Appeals in Cases of Capture. Seven 
 had served on committees to settle disputes between the States as 
 to boundary lines. Eight had helped to frame the Constitutions 
 
7 
 
 of their own States. Three had revised the laws of their own 
 States. Eight had been Governors of their respective States. 
 Five had been present at the Annapolis Convention, and three 
 were recognized as oracles upon questions of International Law. 
 With a full knowledge of the evils and weaknesses of the Con¬ 
 federation, and with a perfect familiarity with all those instances 
 of a quasi federal jurisdiction which had arisen during the time 
 of the Revolution, the Framers of the Constitution took up their 
 task. It is plain that they confronted two palpable conditions: 
 first, that there were many cases where the States could not act 
 without conflict; and, next, that the confederated government 
 lacked the power and the organs to do final and effective justice. 
 Stress was therefore laid upon these salient features, and a scien¬ 
 tific distribution of power was made between the executive, 
 legislative and judicial branches of the government. The Presi¬ 
 dent was to execute the laws. The laws were to be made by 
 Congress, consisting of two houses, and these laws and the 
 ' Constitution were placed under the guardianship of the Supreme 
 Court and such inferior tribunals as Congress might establish. 
 The Courts of the United States were to have exclusive juris¬ 
 diction of certain classes of cases, and finally the Constitution 
 I and laws of the United States were to be recognized as the 
 supreme law of the land, and the judges in every State were to 
 be bound thereby, “anything in the Constitution or laws of any 
 1 State to the contrary notwithstanding.’’ 
 
 The matter did not rest upon theory alone. Prior to the time 
 that the Federal Convention met it had become an interesting 
 question in the States but recently emancipated from the 
 sovereignty of Great Britain, as to how far a court could go in 
 ■ dealing with an act of the legislature, and the courts in solving 
 this task in several of the States dealt with that feature which 
 is peculiarly American, a written State Constitution. The 
 ; earliest, and I think I may say the clearest, expression of what 
 I is now familiar judicial doctrine, was given by George Wythe, 
 I Chancellor of Virginia, in the year 1782, in the case of Common- 
 
 \ wealth versus Caton, 4 Call’s Reports, page 1. The case was 
 
 argued by Mr. Edmund Randolph, then Attorney General of 
 f Virginia, subsequently her Governor, and later the first Attorney 
 
 f 
 
8 
 
 General of the United States and one of the leading members 
 of the Federal Convention, who in the course of his argument 
 discussed whether an act of the Virginia Legislature passed in 
 the year 1776, taking from the executive the power of pardon 
 in cases of treason, had or had not violated the State Constitu¬ 
 tion, and particularly whether the court was authorized to de¬ 
 clare such an act void because of conflict with the Constitution. 
 Chancellor Wythe, himself subsequently a Framer of the Con¬ 
 stitution, and in this very case of Caton sitting as a judge, 
 declared “If the whole legislature (an event to be deprecated) 
 should attempt to overleap the bounds prescribed to them by 
 the people, I, in administering the public justice of the country, 
 will meet the united efforts at my seat in this tribunal^ and, 
 pointing to the Constitution, will say to them, ‘Here is the limit 
 of your authority, and hither shall you go but no further.’ ’’ 
 John Blair, also a member of the Federal Convention, but at 
 that time an associate of Wythe and later one of the first ap¬ 
 pointees by George Washington to the bench of the Supreme 
 Court of the United States, was of the opinion that the court 
 had power to declare any resolution of the legislature, or of either 
 branch of it, to be unconstitutional and void if in conflict with 
 the Constitution. 
 
 Six years later in 1788 the question was again raised in the 
 very interesting “Case of the Judges,’’ 4 Call, 135, which grew 
 out of an attempt by the legislature to impose additional and 
 extra judicial duties upon the court, and the judges found them¬ 
 selves obliged to decide “that the Constitution and the acts 
 were in opposition, that they could not exist together, and the 
 former must control the operation of the latter.’’ 
 
 These views were again declared in several later cases, and 
 were directly enforced in 1793 in Kemper versus Hawkins, 2 Va. 
 Cases, 20. See also Turner versus Turner, 4 Call, page 234, 
 and Page -versus Pendleton, Wythe’s Reports, 211. 
 
 In New York a substantially similar question in principle was 
 raised in the celebrated case of Rutgers versus Waddington 
 decided in 1784. There Alexander Hamilton in an able argu¬ 
 ment before the Mayor’s Court of New York City, contended 
 that the Trespass Act, which authorized owners to bring actions 
 
9 
 
 against those who had occupied their houses under British orders 
 during the British occupation, was unconstitutional. Hamilton 
 argued that the law violated natural justice, and the decision 
 was placed upon that ground. Rutgers versus Waddington, 
 Dawson’s Pamphlet, page 44. Hamilton’s Works, edited by 
 J. C. Hamilton, volume 5, pages 115 and 116; volume 7, page 197. 
 
 In Rhode Island the famous case of Trevett versus Weeden 
 was decided in 1786. (See a scarce pamphlet of J. B. Varnum, 
 published in Providence in 1787.) 
 
 In passing I might say that this case was the first instance of 
 an attempt at judicial recall and signally failed. A butcher had 
 sold meat and his debtor tendered payment in the paper money 
 then recently authorized by the legislature of Rhode Island. 
 The plaintiff objected to the tender on the ground that the con¬ 
 tract had been made prior to the passage of the law, and that 
 paper money could not be thrust upon him without his consent. 
 The judges sustained the contention, and, the decision giving 
 great offense to the legislature, the judges, having been them¬ 
 selves chosen by the legislature, were attempted to be thrust 
 from their judicial offices. They protested against such an 
 invasion of the independence of the bench in a manner so able 
 as to secure the defeat of a resolution of the legislature declaring 
 their offices vacant. A similar case, so far as the principle of 
 judicial right to review an act of the legislature and compare it 
 with the State Constitution, arose in the case of Holmes versus 
 Walton, referred to in State versus Parkhurst, and reported in 
 4 Halstead, N. J., 444. See also Paper by Doctor Austin Scott 
 in volume 2 of Papers of the American Historical Association, 
 page 86. In North Carolina in the case of Bayard versus Single- 
 ton, Martin’s Reports, page 42, the argument was made by Mr. 
 Iredell, subsequently an associate justice of the Supreme Court 
 of the United States, that the court had the power to refuse to 
 enforce a law because unconstitutional. 
 
 It is beyond the reach of controversy, therefore, that when the 
 Federal Convention met in 1787 for the purpose of framing a 
 Constitution for the United States, the idea of controlling the 
 legislature through the judiciary was familiar to its leading mem¬ 
 bers. It had been asserted in Virginia, New York, Rhode 
 
10 
 
 Island, New Jersey and North Carolina. The members of the 
 Convention who had, either as counsel or as judges, considered 
 such a question, were among the most prominent on the floor. 
 There were from Virginia, George Wythe, John Blair, Edmund 
 Randolph and George Mason; from New Jersey, David Brearly; 
 from New York, Alexander Hamilton; from North Carolina, 
 Richard Dobbs Spaight, informed specifically by his corres¬ 
 pondence with Iredell, the counsel in the case of Bayard versus 
 Singleton. It is unnecessary for me to go into detail in quoting 
 the language of the debates in the Convention itself, but no 
 careful student of Madison’s Notes, or of the Journal of the Con¬ 
 vention, can fail to reach the conclusion that it was generally 
 admitted by the delegates that the courts would have the power 
 under the Constitution without any express gift. Such a power 
 was commented upon with approval in the Convention by Gerry 
 of Massachusetts, Morris of New York, James Wilson of Pennsyl¬ 
 vania, Mason of Virginia, and Luther Martin of Maryland. 
 It was opposed by Mercer of Maryland and John Dickinson, then 
 of Delaware, formerly of Pennsylvania. 
 
 While the ratification of the Constitution of the United States 
 was under discussion in the different States, the matter was 
 elaborately treated of in Nos. 78 and 80 of the Federalist, touch¬ 
 ing particularly upon the independence of the judiciary and che 
 existence of the power to pass upon questions of constitutionality 
 was taken for granted. It was commented upon not as a mere 
 possibility, but in order to remove any lingering objections there 
 might be to such a practice. In the State Conventions the mat¬ 
 ter was discussed, in Connecticut by Oliver Ellsworth, who 
 called the judiciary “a constitutional check”; in North Carolina 
 by W. R. Davies; in Pennsylvania by James Wilson; and in 
 Virginia by John Marshall, Edmund Randolph and Patrick 
 Henry. The last named was a decided opponent of the Consti¬ 
 tution, but he was an earnest advocate of the independence of 
 the judiciary. He believed that the judges should decide upon 
 the constitutionality of a law, and feared that the National 
 Judiciary as organized would not possess sufficient independence 
 for this purpose. 
 
 It is now in order to trace the spread of the doctrine through 
 
11 
 
 the decisions of the Supreme Court of the United States. The 
 Judiciary Act of 24 September, 1789, which was the work 
 almost exclusively of Oliver Ellsworth, the third Chief Justice 
 of the United States and himself a member of the Federal Con¬ 
 vention, although he was aided in part in the drafting of the 
 statute by Richard Henry Lee of Virginia, both men being 
 entirely familiar with the views of their colleagues, provided for 
 the review in the Supreme Court of the United States of judg¬ 
 ments in the circuit courts and district courts upon writs of 
 error, as well as upon a certificate of division of opinions, whether 
 the causes originated in the circuit courts or were removed there 
 from the State courts, as well as for the review of cases where the 
 validity of State statutes or any exercise of State authority shotdd 
 be drawn in question, on the ground of repugnance to the Con¬ 
 stitution, treaties or laws of the United States, and the decision 
 should be in favor of their validity. This statute, which it is no 
 exaggeration to term a veritable bond of union, is a clear legis¬ 
 lative expression of the views of the first Congress under the 
 Constitution—that the questions referred to are judicial ques¬ 
 tions, and that the determination of them belongs, under the 
 Constitution, to the Supreme Court. 
 
 The first case in which the power of the Federal courts to 
 decline to enforce an act of Congress was asserted illustrates the 
 prevailing idea as to the position of the judiciary, as well as the 
 extreme modesty of the judges. The case is Rayburn’s, 2 Dal¬ 
 las, 409. Congress had passed an act in March, 1792, providing 
 for the settlement of claims of widows and orphans barred by 
 certain limitations, and regulating claims for naval pensions. 
 The act directed the United States Circuit Judges to pass upon 
 such claims and make their decision, subject to review by the 
 Secretary of War and by Congress. In the Circuit Court for 
 the District of New York, Chief Justice Jay, Justice Cushing 
 and District Judge Duane filed an order declining to execute 
 the act as judges, but declaring that “As the objects of this act 
 are exceedingly benevolent and do honor to the humanity and 
 justice of Congress, and as the judges desire to manifest on all 
 proper occasions and in every proper manner their highest 
 respect for the National Legislature, they will execute this act 
 
12 
 
 in the capacity of commissioners.” Justices Wilson and Blair 
 and District Judge Peters, of the Circuit Court for Pennsylvania, 
 absolutely refused to execute the act. Justice Iredell and 
 District Judge Sitgreaves, of the North Carolina Circuit, before 
 any case came before them joined in a letter to the President ex¬ 
 pressing their doubt as to their power under the law to act even 
 as commissioners. 
 
 The question reached the Supreme Court at the August Term 
 1792, on an application for a mandamus to the District court 
 for the District of Pennsylvania; Attorney General Randolph 
 entered into an elaborate discussion and analysis of the powers 
 and duties of the court, and advised the execution of the law. 
 Of his arguments he said, “The sum of my arguments was an 
 admission of the power of the court to refuse to execute, but the 
 unfitness of this occasion.” See Conway’s Life of Edmund 
 Randolph, pages 144 and 145. No doubt existed in the minds 
 of the judges, yet so great was the desire to avoid a conflict that 
 the motion was taken under advisement and held until the 
 statute was amended. 
 
 A subsequent case, however, was brought by amicable action 
 against one Yale Todd to recover money paid him under a find¬ 
 ing of Chief Justice Jay and Judges Cushing and Law, acting 
 as commissioners. After argument judgment was rendered 
 against the defendant. No opinion stating the grounds of the 
 decision was filed, but the result was a determination that, as 
 the power conferred by the Act of Congress of 1792 was not 
 judicial within the meaning of the Constitution, the act was 
 unconstitutional. Chief Justice Jay and Justices Cushing, 
 Wilson, Blair and Patterson were present at the decision, which 
 seems to have been unanimous. See Note No. 1 to the Case of 
 the United States versus Ferreira, 13 Howard, 40 to 52. 
 
 The question was again raised in 1798 in the case of Calder 
 versus Bull, 3 Dallas, 386, and some doubts were expressed by 
 Mr. Justice Chase as to the jurisdiction of the court to determine 
 that any law of a State legislature contrary to the Constitution 
 of the State, was void, but he declined to express an opinion 
 whether the Supreme Court could declare void an act of Con- 
 ress contrary to the Federal Constitution. 
 
13 
 
 A similar question was raised in the case of Cooper versus 
 Telfair, 4 Dallas, 194, where Mr. Justice Chase said, “It is a 
 general opinion, indeed it is expressly admitted by all this bar, 
 and some of the judges have individually in the circuits decided 
 that the Supreme Court can declare an act of Congress to be 
 unconstitutional and therefore invalid, but there is no adjudica¬ 
 tion of the Supreme Court itself upon the point. I agree, how¬ 
 ever, in the general sentiment.” The learned judge had evident¬ 
 ly forgotten the decision in the case of United States versus Yale 
 Todd. The question was raised before Chief Justice Marshall 
 in the famous case of Marbury versus Madison, 1 Cranch, 137, 
 in which as Chancellor Kent declares “the power and duty of 
 the judiciary to disregard an unconstitutional act of Congress, 
 or of any State legislature, were declared in an argument ap¬ 
 proaching to the precision and certainty of a mathematical 
 demonstration. ’ ’ 
 
 The language of Chief Justice Marshall is clear and conclusive. 
 
 “The Constitution is either a superior, paramount law, un¬ 
 changeable by ordinary means, or it is on a level w'ith ordinary 
 legislative acts, and, like any other act, is alterable when the 
 legislature shall please to alter it. If the former part of the 
 alternative be true, then a legislative act contrary to the Con¬ 
 stitution is not law. If the latter part be true, then written 
 constitutions are absurd attempts on the part of the people to 
 limit a power in its own nature illimitable . . . If an act of the 
 legislature, repugnant to the Constitution, is void, does it, 
 notwithstanding its invalidity, bind the courts and oblige them 
 to give it effect? Or, in other words, though it be not law, does 
 it constitute a rule as operative as though it was a law? This 
 would be to overthrow, in fact, what was established in theory; 
 and would seem, at first view, an absurdity too gross to be in¬ 
 sisted upon. It shall, however, receive more attentive con¬ 
 sideration. It is emphatically the province of the judicial 
 department to say what the law is. Those who apply the rule 
 to particular cases, must of necessity expound and interpret 
 that rule. If two laws conflict with each other, the courts must 
 decide on the operation of each, this is the very essence of judi¬ 
 cial duty. If, then, the courts are to regard the Constitution, 
 
14 
 
 and the Constitution is superior to any ordinary act of the legis¬ 
 lature, the Constitution, and not such ordinary act must govern 
 the case to which they both apply. Those, then, who controvert 
 the principle that the Constitution is to be considered in court 
 as a paramount law, are reduced to the necessity of maintaining 
 that courts must close their eyes on the Constitution and see 
 only the law.” 
 
 To characterize such reasoning as sophistry is childish. A 
 school boy might as well challenge a proposition of Euclid or 
 attempt to ridicule the Principia of Newton. Many men of 
 an atrabilious critical disposition have stormed at it in impotent 
 rage and have denounced it as mere obiter dictum, but notwith¬ 
 standing all assaults it stands as an adamantine basis of reason¬ 
 ing, and constitutes the invincible buttress of our nationality. 
 The power was not again seriously questioned in the Federal 
 Courts for many years, until the question directly arose in Cohens 
 versus Virginia, 6 Wheaton, 264. The reasoning of Marshall 
 in that case has settled it forever. Nothing but a political 
 earthquake can unsettle it. The great Pyramid of Cheops has 
 stood for six thousand years unshaken by the barking of the 
 jackals at its base. 
 
 A profound student of our institutions, the late Lord 
 Brougham, has said, “The power of the judiciary to prevent 
 either the State legislatures or Congress from overstepping the 
 limits of the Constitution is the very greatest refinement in social 
 polity to which any set of circumstances has ever given rise, or 
 to which any age has ever given birth.” As to Americans, an 
 hundred volumes would not hold what they have said in its praise. 
 
 For practical illustration an instance or two may be given to 
 show what we owe to this doctrine. New York tried to keep 
 out the commerce of the Nation from the Hudson River by giving 
 an exclusive right to one of her citizens to navigate that river 
 with steam, and the State courts sustained it. The Supreme 
 Court of the United States held that it was unconstitutional. 
 The States of California and Missouri arrogated to themselves 
 the right to prohibit the transportation of merchandise from 
 other States except on payment of toll. The Supreme Court 
 said that was unconstitutional. The State of Nevada tried the 
 
15 
 
 same thing with reference to the travel of citizens of other 
 States through her boundaries. The Supreme Court said that 
 was unconstitutional. Other States have tried to compel the 
 payment of a tax before a citizen of another State should 
 be at liberty to buy or sell within their borders. Again the 
 Supreme Court said that was unconstitutional. Monopolistic 
 charters were upset in the same way. The powers of States to 
 tax an agency of the Nation out of existence have been upset in 
 the same way. The rights of the Government to regulate and 
 control big corporations and to dissolve gigantic conspiracies in 
 restraint of trade, have been sustained in the same way. Few 
 laymen appreciate and many lawyers forget what we owe to 
 this doctrine. It has saved us over and over again from discord 
 and unhappiness as well as from business paralysis and loss. 
 
 As to the States, the instances are legion where snake bills 
 and monopolies and all sorts of unfairness have been strangled 
 by the courts. Yet we all know that attacks have been made 
 upon the courts, some of them vile indeed, but the majority of 
 the attacks are untrue and unfair. The courts, taken as a body, 
 deserve and receive the confidence of the people. The man who 
 would deliberately undertake to undermine and destroy the 
 public confidence in the integrity and wisdom of the judiciary, 
 which is our sheet anchor, deserves the fate of Guy Fawkes. 
 No fair-minded man will rail against the church as an institution 
 because some men in it are bigots and others are unchaste. No 
 man would denounce doctors and surgeons as a learned profession 
 because quacks and charlatans are to be found. No man would 
 decry our universities and colleges because professors are some¬ 
 times shallow doctrinairies. No man would impugn the general 
 honor of the American merchant because some of them cheat 
 and sell spurious goods. No man will blacken the character of 
 American labor because its strikes are sometimes violent and 
 destructive. No man will deny the general good character of a 
 community because he sees many sad lapses of conduct in indiv¬ 
 iduals. Let us be fair to the courts. 
 
 Of course, the wise framers of our Constitution foresaw that 
 there might be occasions for amendments to the fundamental 
 law. They were not so shortsighted as to clamp a Constitution 
 
16 
 
 upon the people like a straight jacket. They made the Consti¬ 
 tution sufficiently flexible to admit of expansion and normal 
 growth, and they also provided for those grave changes which 
 in the course of time called for amendments. But, having taken 
 the pains, after long and serious consideration, to frame consti¬ 
 tutions based on experience and the teachings of human history, 
 into which they built the results of suffering and war, they were 
 careful that the changes to be made should be the result of equal 
 deliberation. They did not expose their work to rash innova¬ 
 tions. They knew that it was far easier to tear down than to 
 build up. They knew that popular clamour is sometimes like 
 a destructive storm. They wished to insure stability and wisdom 
 in the Government. They did not believe in nostrums or cura¬ 
 tive quackery. They knew that men would not and could not 
 be easy in their minds, either about their business, their property 
 or their liberties, if the Government was subject to sudden and 
 violent changes. Sound, steady government was what they 
 aimed at. They knew that the jumping and thumping and 
 rattling of an engine meant poor mechanism or a condition of 
 danger. Hence they provided for orderly amendments through 
 representative bodies whose work was finally to be submitted 
 to the people. Detail as to the exact method in each State 
 would be tedious and is not necessary to this discussion. The 
 principle is that each amendment as proposed must first be passed 
 upon by the representatives of the people, and finally ratified 
 or adopted by the people themselves. There was no suggestion 
 that war should be made upon one of the great departments of 
 the Government, nor that the organ of a final exposition of the 
 law should be made the target of abuse. 
 
 I am aware that there is a zone of authority already in posses¬ 
 sion of the judiciary, the invasion of which has been strongly and 
 ably criticised and the further subjection of which is dreaded by 
 many thoughtful and patriotic men as fraught with the danger 
 of a subversion of the legislative branch. It lies upon the border 
 line, and has given rise to differences of opinion even among 
 judges themselves as to what is properly a legislative or a judicial 
 question. I am also aware of the gradual shifting from time to 
 time of points of view of the field of conflict, the determination 
 
17 
 
 of the judicial attitude being settled at critical moments by 
 a very narrow majority of the judges. 
 
 I cannot dwell upon these without blurring the sharpness of 
 the outlines of my sketch, but I ought not to overlook their 
 existence lest I should be mistaken for a blind zealot of govern¬ 
 ment by the judiciary, which I am not. It is true, under all 
 common law methods of development, essentially characteristic 
 of Anglo-Saxon and Anglo-American liberty, that systems become 
 overgrown in certain directions, and that rank shoots spring 
 from trunk or branches, but no skilled or prudent husbandman 
 would use the axe Avhere judicious pruning would suffice. There 
 is a need, and a crying one, I think, for a thorough study of 
 the differences between legislative, executive, and judiciary 
 power in the light of modern instances and a re-survey of the 
 territory appropriate to each so as to guard against trespasses 
 which are quite as common in executive officers as in legislators 
 or judges. It might be, if such a study were seriously and 
 reverently undertaken, that the judiciary would voluntarily 
 withdraw from the determination of questions largely economic, 
 social or political, and that legislators, alive to the performance 
 of their duty, will face their responsibilities with courage equal 
 to the task of stating in unambiguous terms exactly the legisla¬ 
 tive intent instead of the evasive cowardice which hides itself 
 in statutes of doubtful import. It might also be that executive 
 officers will cease to exercise the power of coercive persuasion 
 and moderate their ambitions to wrest from the popular represen¬ 
 tative branch the right to initiate and mould policies. It may 
 also be that the radicals, having instilled energy and vigor and a 
 broader sympathy with the claims of Democracy into every 
 department of the Government and the public service, will be 
 willing to abate a little from the spirit of vandalism and consider 
 the scope and character of amendments to the fundamental law 
 without disturbing the rights of the Courts to pass on constitu¬ 
 tional questions, and without marring the most expressive fea¬ 
 ture of our system. 
 
 It has been proposed, however, in certain quarters and ser¬ 
 iously contended for, that decisions of a State Court on constitu¬ 
 tional questions should be subject to revision by the people; 
 
18 
 
 that in a certain class of cases, if any considerable number of 
 the people feel that the decision is in defiance of justice, they 
 should be given the right by petition to bring before the voters 
 at some subsequent election, either special or otherwise, as might 
 be decided, and after the fullest opportunity for deliberation and 
 debate, the question whether or not the judges’ interpretation 
 of the Constitution is to be sustained. If sustained, well and 
 good. If not, then the popular verdict is to be accepted as final. 
 The decision is to be treated as reversed, and the construction 
 of the Constitution definitely decided, subject only to action 
 by the Supreme Court of the United States. 
 
 How crude this plan is, and how lacking in detail. Who is to 
 determine what constitutes “a considerable number of the peo¬ 
 ple”? What is meant by “defiance of justice”? Are we rele¬ 
 gated to a state of nature? Is a decree of a court of justice, 
 reached by sworn judges, learned in the law, to be put into the 
 melting pot of the emotions? To whom is the petition for a 
 general election to be presented, and what will happen if it were 
 refused? Who is to decide about the special election? Where 
 are the debates to be had, and who are the parties who are to 
 deliberate, and who is to moderate or preside over the debates? 
 Is the law to be kept in a state of uncertainty until the final vote 
 is taken? How is the result of the vote to be certified, and by 
 whom? To whom is it to be certified? How will it reach the 
 Supreme Court of the United States? Who are to be the parties 
 to the suit, how is the record to be made up, and what will happen 
 if the Supreme Court of the United States reverses all that has 
 been previously done? Passing by all these practical difficulties, 
 let us concern ourselves with the principle involved. If it is 
 urged that the decision of a court is to be subject to revision by 
 the people, that moment you hamstring the courts and emasculate 
 the law, because you have no principles, no rules, no authorities, 
 no science, no means by which the people are to judge of the 
 decision, except their own notions of justice. These will vary 
 according to the time, place and circumstance. Men of brazen 
 lungs or with a knack at story-telling, or with the subtilty of 
 demagogues, will work on the passions and prejudices or will 
 encourage envy, hatred, malice and all uncharitableness, and 
 
19 
 
 there will be a Babel of confusion. In the next place, respect 
 for law, which is our crying need, will vanish. The court and 
 the decision will be the main subject of discussion, and abuse of 
 the judges and a contempt for the law will become a part of the 
 debates and deliberations. To keep up agitation over the courts 
 in all the States of the Union about their decisions on constitu¬ 
 tional questions, which will vary in every State and with each 
 statute under consideration, will be confusion worse confounded 
 if the majority of the people in the States do not all think and 
 act alike. The loss to business, to orderly government, to respect 
 for law, to certainty of the law', to uniformity of the law, will be 
 incalculable. Everything wall be swimming in a sea of uncer¬ 
 tainty. It would give birth to a most irrational way of amending 
 the Constitution by piecemeal and by chance. Law and justice, 
 instead of being as stable as the hills, will become as unstable as 
 the waves. So too my sense of reverence is shocked. I am not 
 ashamed to confess that I do reverence American institutions. 
 I do revere the wisdom of our sires. I do believe that that which 
 has cost so much in blood and tears and money and patriotism, 
 is wwth saving. Heroes have died for it. Women have been 
 widowed for it. Children have been orphaned for it. To chip 
 off the expi'essive features of the Constitution bit by bit, to deface 
 the noblest column in our Temple of Liberty, is nothing less than 
 sacrilege. 
 
 It is now in order to ask what effects w^ould the doctrine of 
 the recall of judges, or the recall of decisions, have upon our 
 judiciary? In the first place, it w-ould destroy the independence 
 of the bench. This is not a mere phrase. It is something of 
 priceless value. For six hundred years our ancestors struggled 
 to secure an independent bench of judges. From the days of 
 William the Conqueror to those of William the Third judges were 
 appointed by the Crowm to hold during the pleasure of the r on- 
 arch. If judges did something displeasing to the king they were 
 dismissed. What did this mean? Every time a judge had the 
 courage to declare that the king was subject to the law and could 
 not rule arbitrarily, he w'as disrobed, in modern phrase “recalled.” 
 It is to the lasting honor of Sir Edward Coke, Lord Chief Justice 
 of England, that when he was asked by James the First what he 
 
20 
 
 would decide in a given case, he replied “That which a good 
 judge ought to do, according to the facts and the law as I see 
 them.” He lost his place, but his bravery and independence 
 inspired other men. Finally when the wretched puppets of the 
 royal will, the infamous Scroggs, the pliant Wright and the 
 bloody Jefferys had filled the land with scaffolds, and James 
 the Second had abdicated the Crown, the new king, William the 
 Third, announced as a fundamental doctrine of liberty that the 
 judges should hold their places during good behaviour and not 
 at the royal will. 
 
 All these things took place during the time that America was 
 being settled, and our well instructed fathers knew them all. 
 When it came to their turn to substitute the people for the crown 
 as the source of sovereignty, they did not turn backward and 
 put into the hands of the people the old kingly power of recalling 
 judges. The Progressives of to-day fail to see that they are 
 retrograding to ancient tyranny when they wish to subject the 
 conduct of the bench to the will of the appointing power. Not 
 so with our fathers. When in 1787, in the very hall in which the 
 Declaration of Independence had been signed, they framed the 
 Constitution of the United States, they built into the Constitu¬ 
 tion the independence of the judiciary, and they safeguarded it 
 by expressly adopting the good behaviour principle, and by 
 providing that judicial salaries should not be diminished during 
 their terms, so as to prevent a compulsion of the judges by 
 starvation to popular or executive will. The remedy for cor¬ 
 ruption or misbehaviour was by impeachment. 
 
 Our State Constitutions, while changing from time to time, so 
 as to make the judges elective by the people for fixed terms 
 preserved the independence of the bench in all other respects. 
 The best description of an independent judge that I have ever 
 read is given by Rufus Choate when he said, “If a law is passed 
 by a unanimous legislature, clamoured for by the general voice 
 of the public, and a cause is before a judge upon it, in which 
 the whole community is on one side, and an individual nameless 
 or odious on the other, and he believes it to be against the Con¬ 
 stitution, he must so declare it— or there is no judge. If Athens 
 comes there to demand that the cup of hemlock be put to the 
 
21 
 
 lips of the wisest of men, and he believes that he has not sinned 
 against the law, he must deliver him, although the thunder light 
 upon the unterrified brow'.” 
 
 Who would honor a judge who quaked with fear in the pres¬ 
 ence of a mob, either inside or outside of the court house? Who 
 would respect a judge, who, wdth his ear to the ground, sought 
 to ascertain in advance of his decision w'hat the people thought 
 the decision ought to be? Who would revere a man or a body 
 of men, though robed in ermine, who were ready to surrender 
 their conscientious convictions, abandon their intellectual honor 
 and integrity, and disregard their oaths of office, to pander to 
 popular will? Who would not denounce the wretched cow'ard 
 who foreswore his duty to palter wdth the foul fiend of temptation 
 known as popular applause? What would happen if fear mis¬ 
 read true popular opinion? Who could measure the depth of 
 that disgrace? Did Pontius Pilate cleanse his hands of the blood 
 of a just man by washing them in public, or his conscience in 
 saying ‘‘I surrender him to you?” Did the people display their 
 wisdom and justice by preferring Barrabas to Christ? In the 
 next place, the recall of judges, or the recall of decisions, w'ould 
 destroy the dignity and majesty of the law. If the people de¬ 
 mand that a judge should decide at his peril lest he be recalled, 
 it would at least be fair to give him notice in advance what public 
 opinion was. How could this be done in a given case involving 
 disputed questions of law and fact? 
 
 In the third place, the recall of judges would sweep the bench, 
 and the judiciary department would be prostrated. It would 
 not mean the recall of one judge, but the recall of all the judges 
 who had participated in the decision of the majority of the judges, 
 high or low, in the court of first instance as well as in the Supreme 
 or Appellate Court. The mass of the people always claim for 
 their action the right to a majority rule, but in this case they 
 would deny the rule of the majority upon the bench, and by 
 sweeping the bench of that majority leave it in possession of a 
 feeble and cowardly minority. 
 
 In the last place, the recall of decisions would be worse than 
 the recall of judges. Judges are but individuals, but decisions 
 are a part of the law until met by the orderly methods of amend- 
 
22 
 
 ment previously discussed. Certainty and uniformity of the 
 law would be utterly lost. We have difficulties enough on that 
 point, owing to our many separate State sovereignties, which we 
 are striving to meet through our committees in State bar associa¬ 
 tions on uniform legislation. Why should we add to the trouble? 
 Suppose the people of one State had one view and the people of 
 another State had another view, and you multiply all this by the 
 number of States in the Union, and you had to have a mass 
 meeting in every county in every State to vote upon the recall 
 of a decision, when and how could it be recalled until all the 
 counties had been heard from and all the States had been heard 
 from? In the meantime what is the law? What lawyer could 
 safely advise his client? What business man would be safe in 
 following the advice if any counsel were bold enough to venture 
 an opinion? Is this the system of law and order which we have 
 been taught to revere? Do we really desire a change? 
 
 Let me now contrast the present orderly method of reaching 
 a final conclusion upon constitutional questions with the pro¬ 
 posed revolutionary methods of the recall. 
 
 A constitutional question may arise under an Act of Congress, 
 a foreign treaty, a State Constitution or a State statute, in a 
 suit between citizens and foreigners, citizens of different States 
 or citizens of the same State, and in this sense a corporation is to 
 be regarded as a citizen of the State of its parentage. It may 
 affect either civil or personal rights or property rights defined 
 and guaranteed by the Constitution. No Act of Congress can 
 be valid which is in conflict with the Constitution of the United 
 States. No State Constitution can be framed in conflict with the 
 Constitution of the United States, and no State statute can 
 conflict either with the Federal Constitution or the Constitution 
 of the particular State where it originated. Questions affecting a 
 State Constitution are finally decided by the highest court in 
 that State, and cannot be carried to Washington unless the alle¬ 
 gation is one involving a provision of the National Constitution. 
 
 This is our system, and the principles announced are funda¬ 
 mental. They are necessary to the harmony of the Union. 
 Observe the variety and the range of the questions, and observe 
 also that they are not matters of economic policy. Policy is not 
 
23 
 
 a judicial question at all, it is legislative. Hence the question 
 for the court always is this, has Congress or the Legislature the 
 power to pass the act? If it has no such power the statute falls. 
 If the power exists the court cannot review the wisdom or the 
 folly of the statute. This too is necessary to the harmony of 
 our system. When a question lies upon the border line between 
 the departments and arises out of a statute which is badly ex¬ 
 pressed, owing to uncertainty in the mind of the legislature as 
 to its exact intent, the judicial task becomes all the heavier, and 
 the matter is one of much nicety and difficulty. It is in cases 
 of this kind that the greatest strain is put upon the bench. 
 Every presumption, however, exists in favor of the constitu¬ 
 tionality of an act, so that the burden is always upon the litigant 
 challenging the constitutionality of a law. The judges will not 
 assume that Congress or State Legislatures intended to violate 
 the Constitution, or that they have violated the Constitution. 
 They must be sure, by a preponderance of argument, that a 
 law is bad. This too is fundamental. In the vast majority of 
 cases the final decision is in favor of the constitutionality of 
 acts. It is important to remember this, because the din recently 
 raised might lead the incautious citizen to suppose that the 
 courts are mowing down State statutes or Acts of Congress with 
 such freedom as to amount to the general business of annulling 
 the legislative will. Such is not the case. No matter how' num¬ 
 erous the instances have been in a land as big and as subdivided 
 as ours into many States, decisions setting aside acts of a legis¬ 
 lature or of Congress are few in comparison with those where 
 such acts have been sustained. The truth is that the judicial 
 knife has been but sparingly used and only in cases of freedom 
 from doubt, that condition being determined by the majority 
 of the judges in the court of last resort. There is no other prac¬ 
 tical way. I have taken the time to count the number of de¬ 
 cisions in the Supreme Court of the United States where acts of 
 Congress were declared to be unconstitutional, and I find that 
 from 1790 to the present time but twenty-two instances exist. 
 During the same time they exercised the same power, without 
 challenge as to jurisdiction, in relation to the statutes of 
 States and Territories in one hundred and eighty-two instances. 
 
24 
 
 The proportion of cases in which acts of Congress and acts of 
 State Legislatures were sustained, particularly in the exercise 
 of that salutary but vague power known as the police power, is 
 as twenty to one. 
 
 It is clear that the questions to be considered are not those 
 with which the people at large are generally familiar, or which 
 they are generally prepared to discuss. The matter necessarily 
 must turn upon the interpretation of written language as applied 
 to complicated facts. It involves the highest exercise of trained 
 intellects dealing with the specialty of constitutional law. 
 Seventh-tenths of the lawyers in the land will frankly admit that 
 they are not constitutional lawyers. 
 
 In view of the peculiar character of the discussion to be con¬ 
 ducted, it must strike the thoughtful citizen that the notion 
 that such questions as the overruling of these decisions of the 
 court of last resort should be debated and deliberated upon by the 
 people in mass meeting, with a view of recalling the judges or re¬ 
 calling the decisions, is about as grotesque and impracticable 
 a proposition as can be made. But it has been contended that 
 only where the decision is in defiance of justice, and a consider¬ 
 able number of people think so, that the doctrine of recall would 
 apply. The fairest way of testing this is to take cases arising 
 under what may be called the police power of the States, because 
 these are the ones that touch citizens most closely in their per¬ 
 sons or their property. To these may be added the tax cases as 
 affecting property, and to these again may be added questions 
 arising under workmen’s compensation acts. Observe how 
 problems may breed. Under the police statutes affecting the 
 health and good order of the community, how easy it would be 
 to secure a mass meeting of citizens, more or less superstitious 
 and defiant, on the subject of vaccination or quarantine. Or 
 take pure food laws. How easy it would be to get up in oleo¬ 
 margarine cases, for instance, an opposition on the ground of the 
 injustice of taking and destroying the property of citizens 
 selling an article which is entirely harmless as a food. Take 
 tax cases, whether income or not, whether the single tax upon land 
 or the exoneration of real estate, and how complicated the dis¬ 
 cussion must become, entirely apart from the question of the pro- 
 
25 
 
 portion in which each class shall bear the burdens of the State, 
 and entirely irrespective of the opportunities offered for fraud, 
 perjury and evasion. Take then the Employer’s Liability Acts. 
 These exist in eleven States, in six of which the constitutionality 
 has been questioned. These acts grew out of a very general 
 sentiment that the burden of accidents in intrinsically danger¬ 
 ous trades should be so adjusted between the employer and the 
 employee that the burden should fall directly upon the employer 
 and indirectly upon the consumer, so that the shock of the acci¬ 
 dent might be borne ultimately by the community. With the 
 justice of this policy the judges have no quarrel. Their diffi¬ 
 culty has been to make the law square with the existing consti¬ 
 tutional provisions which the people have permitted to stand. 
 The constitutional barriers, if removed, would leave the judges 
 free, but instead of clearing the way by intelligently considered 
 amendments, an ungovernable rage is to be leveled at the judges. 
 No blame should attach to that department of the government 
 which did not create the barrier, and whose sworn duty it is to 
 sustain the barrier as long as the people say that it shall stand. 
 No just master would blame a servant for that which is not his 
 fault. No just people will blame their judicial servants for that 
 which is not their fault. If a man builds a solid wall across a 
 road that he owns, it is neither rational nor just for him to turn 
 his anger upon his driver for not smashing his vehicle against it. 
 The very existence of the wall is a declaration of the master’s 
 will that driving in that direction is forbidden. Read the dif¬ 
 ferent Constitutions affecting employers’ liability. Study the 
 decisions of the courts. Look at the extreme intricacy of the 
 questions. Observe the anxiety of the judges to give effect if 
 possible to the statutes. In some of the States the principle 
 has been adopted of accumulating an insurance fund in the hands 
 of the State, or under its control, to which employers contribute, 
 and from which injured workmen are paid. These laws have 
 been sustained as constitutional. In others the principle of 
 contract has been introduced, by which the employer and the 
 employee agree, in the absence of express stipulations, to settle 
 upon a tariff or scale of compensation for injuries. These laws 
 have not yet been definitely tested. In other States both these 
 
26 
 
 features are lacking, and in one of them the law was held to be 
 unconstitutional by a unanimous court on the ground that the 
 master in that case was entirely without fault or negligence of 
 any kind. The accident was a pure accident without negligence 
 on the part of the master, and under the Fourteenth Amend¬ 
 ment of the Constitution of the United States, and under the 
 State Constitution, it was held that no man could be deprived 
 of his property without due process of law. What fair minded 
 man can say that this is a ruling purely in defiance of justice? 
 If it be just that a man’s property can be taken to pay for 
 another’s injury when the man whose property is taken has com¬ 
 mitted no fault whatever, the same rule must apply to every man 
 who employs laborers, whether few or many. Smarting dam¬ 
 ages will not be confined to corporations or to rich employers 
 alone. The truth is that the reversal in the last few years of the 
 long established rules of negligence, of assumption of the risks of 
 employment, of the doctrine of the negligence of co-employees, 
 and the modifications of the doctrine of contributory negligence, 
 have given birth to problems of great perplexity. Can these be 
 properly solved by mass meetings? But, whatever the difficulty, 
 must we seek a remedy by recalling the judges and emptying the 
 bench, or by recalling decisions and making the law uncertain, 
 by planting ourselves upon the slippery ground of an alleged 
 defiance of justice, where the point of view of what is justice is 
 largely dependent upon whose ox is being gored? Then, too, 
 how much of the decision is it intended to recall? If loss for an 
 injury is to be paid for independent of fault, how long will it be 
 before the principle is extended to making men pay their neigh¬ 
 bors’ debts, so as to prevent business unfortunates from becom¬ 
 ing a burden to the community? Some men have argued that 
 the extent of the doctrine of recall should be limited so as to 
 guard against its too wide application. Let such define in writing 
 just exacdy what they mean. Let them sit down and try it. 
 They will probably find themselves dealing with unfamiliar and 
 edged tools. In their plight perhaps they will ask some friend 
 to do it, whether layman or lawyer, and then present it at a mass 
 meeting in the shape of a resolution. After it has been torn to 
 shreds bit by bit by amendments offered through passion rather 
 
27 
 
 than by reason, the resolution in its final form passes. What is 
 the result? It is clear that whoever wrote the final resolution 
 becomes a substitute for the judges in declaring what the law is, 
 in short, becomes the final expositor of the law. He has not 
 been elected by the people. He does not represent the people. 
 He is not a judge. He is not trained in judicial forms of pro¬ 
 cedure or judicial systems, and representative government is 
 at an end. The judiciary has been recalled. The decision has 
 been recalled. Every mass meeting has its own set of resolutions. 
 What then is the law? Who is to determine? Seriously, my 
 fellow lawyers, is this what we are aiming at? 
 
 I confess to a feeling akin to awe when I contemplate the man¬ 
 ner in which for a century and a quarter the judges, both Fed¬ 
 eral and State, have with rare exceptions upheld the indepen¬ 
 dence of the bench, a doctrine which it cost our English sires 
 six centuries of struggle to acquire, which is secured by the ten¬ 
 ure of good behaviour, which is safe from the odium of appoint¬ 
 ing boards and commissions and licenses and privileges, which 
 would sully the ermine by the blight of suspicion; that inde¬ 
 pendence which knows no fear, which is no respecter of persons, 
 which cringes to no governmental officer, which quakes at no 
 hurricane of popular clamour, which knows nothing about the 
 parties but everything about the cause, which does nothing for 
 the sovereign, nothing for a patron, but everything for justice, 
 which dreads no consequences save the stings of conscience for 
 violated duty, which pronounces judgment as it is given to finite 
 human understanding to see the law, that independence which is 
 the most precious jewel in the people’s treasure chest, which 
 dissipates by its light the darkness of ignorance, and which gives 
 assurance that never will a sober, righteous and self-respecting 
 people, with a full knowledge of its value, permit the measureless 
 abomination and the unspeakable sacrilege of the judicial recall. 
 
 In truth, so far as the thoughts of mortals may approach the 
 divine mind, the architecture of our Constitution resembles that 
 of the heavens, where States circle like planets about the Federal 
 Government as a central sun, the source of light, power, harmony 
 and beauty, productive of separate existences and destructive 
 of none, while moving without collision or chaos to the majestic 
 music of freedom down centuries of time. 
 
Paa^hlets 
 
 L46269_vol.70 
 
 DATE 
 
 ISSUED TO 
 
 
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