UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 
 .
 
 ADDRESS 
 
 CHIEF JUSTICE WALTER CLARK 
 
 * 
 
 OF THE NORTH CAROLINA SUPREME COURT 
 
 COOPER UNION, NEW YORK CITY 
 
 27 JANUARY, 1914 
 
 GOVERNMENT BY JUDGES 
 
 SECOND EDITION
 
 T
 
 ADDRESS 
 
 OF NORTH CAROLINA SUPREME COURT 
 AT 
 
 COOPER UNION, NEW YORK CITY 
 27 JANUARY, 1914 
 
 GOVERNMENT BY JUDGES 
 
 My Fellow Citizens: It has been said that a contented peo- 
 ple have no annals. The present unrest among the people, not 
 only in this country, but the world around, strange as it may 
 seem to some, is one of the best signs of the times. When peo- 
 ple at large are content, they are either ignorant of better con- 
 ditions or hopeless of attaining them. A "divine discontent" is 
 the basis of civilisation, and of all progress in bettering the con- 
 dition of humanity. 
 
 Some one has said that "civilization is h 11 to the under- 
 dog!" Those who create the wealth of the world do not pos- 
 sess it, for they pass thru the world with the barest living, and 
 not always that; while those who do not create it have all of it 
 except the mere subsistence of those who create it, and of the 
 other workers. We are fond of saying that this country is a 
 "government of the people, by the people, and for the people" ;, 
 that our government rests upon the consent of the governed ; that 
 all power is derived from the people and is to be exercised for 
 their benefit and in accordance with their will. This is the 
 end toward which the world is moving. We shall some day 
 realise that ideal, but it will be "far on in summers that we 
 shall not see," for as yet we are merely "on our way." 
 
 All advance towards better conditions has been thru a cease- 
 less combat between those who exploit and those who are ex- 
 ploited; between those who create the wealth of a country and 
 those who take as large a share of it as they can grasp. 
 
 In this country, as in all countries, the control of the Gov- 
 ernment is in the hands of the few. Our institutions merely
 
 give an easier opportunity to the many whenever they have the 
 will and the intelligence to improve their conditions. We have 
 learned that the form of government amounts to very little. 
 The real question is, Where does the control of that govern- 
 ment reside? 
 
 In the countries of the Old World, power was vested in an 
 hereditary sovereign in whose selection the people had no voice 
 and who needed no approval of his conduct, however arbitrary. 
 In the process of time, the wealthier classes were able to force 
 recognition, and they became the nobility and hereditary legis- 
 lators. When in course of time, after long struggles and many 
 revolutions, the class next below obtained recognition, they 
 elected the lower house, as in England, but upon a suffrage 
 restricted to the well-to-do and by a system which permitted 
 the influence and the money of the government of the king and 
 nobility to dictate the election of a majority of the lower house 
 or their purchase by the bestowal of titles and money. 
 
 To this system as buttresses there was an army and navy 
 whose best posts were filled by younger members of the nobility, 
 while the rank and file were composed of men from the ex- 
 ploited masses, conscripted or forced into service, and paid an 
 insignificant amount ranging from two to twenty cents per 
 month. The Church was also a State institution likewise paid 
 for by the exploited millions, and whose higher positions were 
 ' filled by the appointment of the younger members of the aris- 
 tocracy. 
 
 Such, in brief, was the origin and the development of gov- 
 ernments in the Old World. If there was discontent, the army 
 and navy under the command of their aristocratic officers were 
 used to shoot down the friends and relatives of the underpaid 
 rank. and file. And the thunders of the Church were used to 
 frighten with threats of eternal condemnation and everlasting 
 fires those who aspired to better their conditions in life and 
 obtain some little larger share of the wealth they created. 
 Those who objected to being exploited were shot in this world 
 and officially damned in the next. Our plutocrats, lacking 
 these facilities, have resorted to the infallibility of the Supreme 
 Court. 
 
 In this country, in 1776, we issued a Declaration which was 
 the sublimest that the world had ever heard. It proclaimed the 
 rights of mankind, and their equality and freedom. For seven
 
 3 
 
 years the people of this country sacrificed themselves to obtain 
 a government based upon the principles of that great Declara- 
 tion of Human Rights. And then, when the struggle was over, 
 with sublime audacity, the reactionary party the champions 
 of government of the many by the few quietly, unostenta- 
 tiously, but effectively, took control of the Government. 
 
 In 1787 there was assembled at Philadelphia a Convention 
 for the nominal purpose of creating better business and com- 
 mercial relations between the States. A stronger Union was 
 necessary. Taking advantage of this need, the reactionary ele- 
 ment shaped the Constitution of the United States. 
 
 That instrument deserves an analysis. Our Government is 
 divided into three great departments, the legislative, the execu- 
 tive, and the judicial. Of these three great departments which 
 compose our whole scheme of government, the control of only 
 one-sixth, i. e., the election of the lower branch of the legisla- 
 tive department the House of Representatives was given to 
 the people. Indeed, it was less than one-sixth, because the 
 House of Representatives not having the confirmation of public 
 officials or the treaty power and other privileges which were 
 given to the Senate, is considerably less than one-half of the 
 legislative department. Besides, v the election of the Members 
 of the House of Representatives was not granted to the people, 
 as we now understand the word, for in no State was there 
 "manhood suffrage," but the right of voting was in most, if not 
 in all, restricted by a property qualification, which in some 
 States meant the ownership of land. 
 
 The other and the far larger part of the legislative depart- 
 ment, the Senate, was chosen at second hand by legislators, 
 themselves chosen originally by a restricted suffrage. It was 
 soon discovered that the election of Senators was largely con- 
 trolled by the great financial interests. Exceedingly few of 
 them were ever frankly in sympathy with the masses. They 
 were not in accord with the "under-dog," to whom they were 
 not indebted for their seats and to show sympathy for whom 
 would be a sure means of defeating a reelection. This was soon 
 understood, and as far back as 1820, now more than 90 years 
 ago, an effort was made to amend the Constitution to require the 
 election of Senators and judges by the people. But so powerful 
 has been the influence of the great corporations and the allied 
 vested Interests, that it took 90 years for the people to win the
 
 right to choose the Senators who should represent them. The 
 fight was not won until less than a year ago. The astonishing 
 change in the tone of the Senate has already vindicated the wis- 
 dom of the people in persistently demanding this great change. 
 
 But to return to the Constitution of the United States as 
 adopted in 1787. There was the provision for the election of 
 the President. This was not given to the people, and it was 
 intended that he should be elected at third hand by electors 
 chosen by the legislatures of the different states, the legislatures 
 being chosen, as already stated, by restricted suffrage. This 
 system, however, has not worked out as intended. The people 
 demanded that the electors should be chosen by themselves. 
 This was done gradually as State after State made this change. 
 After nearly 40 years the system of the legislatures electing 
 the presidential electors was entirely done away with, except 
 in South Carolina. In 1876 Colorado chose its presidential 
 electors by the legislature, and it is still in the power of any 
 state legislature to change the election of its presidential elect- 
 ors back to that method if they dare to do it. As a result, 
 however, the greatest Constitutional Amendment was adopted 
 by popular action, without writing any amendment into the 
 Constitution, for the people captured the right to elect the 
 President by making the electors mere figureheads, and have 
 ever since chosen their President by popular vote. Tho each 
 elector has the legal power still to cast his vote for his indi- 
 vidual choice, no one has yet dared, even in the most heated 
 contest, as in the Hayes-Tilden election, to vote for a candidate 
 other than the one for whom he was pledged to vote. 
 
 Now, let us turn to the third department of the Government, 
 which in the beginning was considered of so little influence in 
 the Government that Chief Justice Jay of the Supreme Court of 
 the United States resigned to take the position of Governor of 
 New York, and the appointment to the Supreme Court was de- 
 clined by more than one, when tendered. The possibilities of the 
 Court were not understood, and indeed were unknown until its 
 vast extension of power was grasped, without any grant in 
 the Constitution itself, by an obiter dictum opinion in Marbury 
 v. Madison,. Those who drafted the Constitution at Philadel- 
 phia had been careful to place the judges beyond any influence 
 of public opinion by making them appointive, at fourth hand, 
 by the President, who was to be chosen at third hand, subject to
 
 confirmation by a Senate chosen at second hand, and they were 
 to hold for life, so as to be free from any consideration whether 
 their conduct was conformable to the will of the people, which 
 last, with well-framed irony, was proclaimed as the "foundation- 
 stone" of the new republic. 
 
 Nothing could be more absolutely out of accord with a repub- 
 lic than the appointment of officials for life. At the time, how- 
 ever, that this Constitution was adopted such was the tenure of 
 judges in all the states but one, and in none of them were the 
 judges chosen by the people, even under the restricted suffrage 
 then obtaining. But it was soon discovered that the method of 
 selecting judges meant practically their selection by the property 
 interests, and that a life tenure abstracted them from all respon- 
 sibility. As a result, State after State amended its Constitution, 
 until to-day the judges are elective in all the states but seven; 
 and while they still retain the life tenure nominally in four 
 states, they practically have that tenure in only one. For in 
 the other three the judges can be dropped at any time, by a 
 majority vote of the legislature, without trial and without cause 
 assigned. 
 
 The change from life tenure to a term of years and to elec- 
 tion by the people was in effect the adoption of a modified re- 
 call, the necessity for which had been proven by experience. 
 Not that the judges, either elective or appointive, either State 
 or Federal, have been corrupt. To the credit of the Bench, it 
 must be said that such instances have been exceedingly rare. 
 But experience has demonstrated the absolute unwisdom of 
 placing irreviewable power in the hands of any man or set of 
 men by life tenure, no matter how wise or pure they may be. It 
 had proved so in the past as to kings, tho there had been some 
 good kings; and it proved equally so as to life judges, for State 
 after State abolished it. As to the United States judges, tho 
 bill after bill has been introduced into Congress to change their 
 life tenure into tenure for a term of years, and their method of 
 appointment into election by the people of the respective dis- 
 tricts and circuits over which they preside, the influence of the 
 great vested Interests has postponed the adoption of the pro- 
 posed measure. 
 
 The importance, indeed the overwhelming preponderance, of 
 the Judiciary in the Government was unexpectedly created in 
 1803 by a decision of the Supreme Court of the United States, 
 2
 
 6 
 
 without a line in the Constitution to authorise it, when that body 
 assumed the right to nullify and veto any act of Congress that 
 they chose to hold unconstitutional. This astonishing declara- 
 tion* was made in the case known as Marbury v. Madison, by 
 Chief Justice Marshall. The doctrine was shrewdly set forth 
 in an obiter dictum, that is, in an opinion which did not call 
 for an execution of any mandate of the Court, for he knew that 
 Thomas Jefferson, then President, would not recognise the 
 validity of the opinion nor put it into execution. He therefore 
 laid down the doctrine that the Court could, if it chose, declare 
 that any act of Congress was unconstitutional, but wound up 
 by deciding, notwithstanding, against the plaintiff, upon the 
 ground that the Supreme Court was not authorised to issue a 
 mandamus or writ to effectuate the views he had expressed. A 
 few years later, in the matter of the Yazoo claims, when the 
 Court, thru the same Chief Justice, held an act unconstitutional 
 and directed the issuance of a writ in accordance with the opin- 
 ion, Andrew Jackson, then President, pithily said : "John Mar- 
 shall has made his decision, has he? Now let us see him exe- 
 cute it." It was accordingly never executed, and to this, day 
 has remained a blank piece of paper. 
 
 The assertion of this doctrine was promptly seized upon as a 
 boon by the Special Interests and by all who at heart believed 
 in the government of the many for the benefit of the few. It 
 has practically made the courts the dominant power in every 
 State and in the Union. Whenever any progressive statute has 
 not been in accord with the economic views entertained by the 
 courts, it has always been in their power, which has been very 
 generally exercised, to declare that the statute in question was 
 unconstitutional because it was not "due process of law," or 
 "deprives of the equal protection of the law," and there are 
 other phrases which the judges use at will. Even Magna 
 Carta, which was a treaty between King John on the one hand 
 and 13 barons and 13 bishops on the other, in an attempt to 
 restrict the absolute power of an irresponsible king, has some- 
 times been resorted to as being in some inconceivable way a 
 heaven-born bar in the hands of the courts upon the power of 
 the American people. These phrases are very elastic and mean 
 just whatever the court passing upon the statute thinks most j 
 effective for its destruction. This, of course, makes of vital 
 importance the inquiry, "What are the beliefs of the majority
 
 of the Court on economic questions, and what happens to be 
 their opinion of a sound public policy?" A power so great and 
 so irreviewable, and therefore so irresponsible, has become the 
 mainstay of the antiprogressive element. 
 
 The elastic and much extended phrase, "due process of law," 
 historically and as a legal concept, relates only to procedure. 
 It merely requires that the party shall have right to a regular 
 trial according to ordinary procedure. In the Ives case, 201 
 N. Y., 271, the Court set aside an act providing for the com- 
 pensation of workmen employed in eight inherently dangerous 
 trades. This decision required an amendment to your Constitu- 
 tion to overrule it. This is but one instance out of hundreds. 
 
 It is because of this intrusion of the economic views of the 
 judges that the more recent state constitutions resemble rather 
 a consolidated edition of the statutes than a declaration of the 
 organic law and a frame of government. The judges have made 
 it absolutely necessary that amendments to the Constitution may 
 be made more easily and properly to prevent the evil that is 
 caused by their opposition to all progressive measures for the 
 betterment of the public. 
 
 Professor Corwin of Princeton University recently said that 
 "due process of law is not a legal concept at all, but merely a 
 roving commission to judges to sink whatever legislative craft 
 may appear to them, from the standpoint of vested Interests. 
 to be of a piratical tendency." 
 
 Dean Trickett well said: "The legislators are elected to 
 speak, and usually do speak, the people's will. The people will 
 never be masters in their own house so long as a majority of 
 nine gentlemen, pretending to have Marconigrams from the de- 
 funct men of 1787 and 1788 concerning their meaning when 
 they adopted this or that phrase of the Constitution, arrogate 
 to themselves the power of veto, and not merely refuse to aid in 
 the enforcement of statutes, but even launch prohibition against 
 the carrying out of these statutes by those who^ unhindered by 
 them, would legally execute them." 
 
 The XIV Amendment, which was passed for the protection 
 3f the negro, has been construed as useless as to him, but it has 
 become a tower of safety to the vested Interests, who, seeing 
 that suffrage was becoming more and more unrestricted, and 
 ;hat the President had been made elective practically by the 
 people, and that they could not rely, as in Europe, upon an
 
 8 
 
 army officered by their sons, or the fulminations of a state 
 church, were thrown back upon the Senate, chosen largely by 
 their influence, and the appointment of judges for life, mostly 
 from the ranks of attorneys who had been their employees. 
 
 The vested Interests for 90 years held back the election of 
 United States Senators by the people. Their remaining sheet- 
 anchor now is the selection of judges appointed by the execu- 
 tive, to hold for life. ISTo one will accuse these judges of cor- 
 ruption, notwithstanding a few alleged instances, and a few 
 impeachment trials. But the fact remains that the appoint- 
 ments to the Federal judgeships are very often made at the 
 instance of influences which are exerted for great Interests who 
 feel the need of men in that position who believe in the sacred- 
 ness of their vested rights. These appointees, as a rule, have 
 been men of ability, but men who, because of their ability, have 
 been retained in the service of great corporations. When these 
 men who have spent their professional life in advocating the de- 
 cision of causes from the standpoint of their employers are 
 translated to the Bench, they naturally continue to view such 
 questions from the same standpoint. This is not corruption on 
 their part, for the more honest their convictions, the more tena- 
 ciously they will assert those ultra views in their opinions on 
 the Bench. The complaint is not corruption, but of usurpation 
 of control over the lawmaking power which under the Consti- 
 tution should be in the people. In England, when the people 
 have put a measure thru Parliament over the power of the 
 aristocracy, there is an end, for there is neither Executive nor 
 Judicial veto. Here, the Interests resort first to the executive 
 and then to the judges to defeat the popular will. 
 
 A well known book gives the secret history of the Dartmouth 
 College case and the methods by which the original views of the 
 Court in that case were changed in favor of the vested Inter- 
 ests. The true inside history of the methods used to change the 
 Court in the Income Tax case might shock the Nation, if gener- 
 ally made known. 
 
 It would be well to inquire just here, what authority there is 
 in the Constitution for the assertion of such remarkable power, 
 by which five lawyers sitting in Washington can negative an act 
 of Congress passed by the House and Senate, and approved by 
 the President, and overruling the precedents of the Court on
 
 9 
 
 which they sit, and overruling, besides, the views of four judges 
 on the same Bench, as happened in the Income Tax case. 
 
 There is not a line in the Constitution which authorises the 
 assumption of this unlimited power by the Court. Nor is there 
 a line in any State Constitution which so authorises it. The 
 members of the legislatures and of Congress, governors and 
 presidents, are equally with the judges sworn to observe the 
 Constitution. There is no intimation that to the judges was 
 given the power to negative the exercise of their sworn duties by 
 these other officials, and the presumption was that all equally 
 would obey the Constitution. There was no preeminence given 
 the judges. When Congress, or a legislature, passes a statute, 
 it is a construction by the majority of those bodies that it 
 is constitutional. When the President or the Governor vetoes 
 or approves it, the presumption is that he has acted according 
 to his construction of the Constitution; but as the presumption 
 is that the greater number of men are better informed than one, 
 by the Constitutions of the States (and the Federal Constitu- 
 tion) in which the veto power is given, there is power lodged in 
 the legislature or Congress to overrule a veto, by a vote ranging 
 from a bare majority to a two-thirds vote. If the executive, or 
 the legislative departments disregard their oaths, the remedy is 
 correction by the people at the next election. If the judges 
 make a mistake in vetoing a statute, there is no power to cor- 
 rect them, especially if holding for life. Had the Constitution 
 given the judges the power to set aside a statute, it would have 
 given the legislature the same power as in case of the executive 
 to overrule their veto. Had it been supposed that such power 
 for the judges was concealed in the Constitution, it is safe to 
 say that it would not have been ratified by a single State. 
 
 This power when assumed by the judges in Marbury v. Madi- 
 son was without a precedent in any other country. It had never 
 been dreamed of before in any other country that the judges 
 would assume governmental functions and negative the action 
 of the men who were entrusted with the lawmaking duties. It 
 had been attempted only once in England, and then they very 
 promptly hung the Chief Justice (Tressilian) and exiled his 
 Associates. And the feat was never attempted again by any 
 subsequent judges. Indeed, in England for a long time the 
 judges were removable at the will of the King, and when that 
 was abandoned they were made removable by a majority vote
 
 10 
 
 of Parliament without trial and without cause shown. This is 
 the law in England to this day. If the judges had attempted 
 any such decision as our Court made in Marbury v. Madison, 
 in the Dartmouth College case, or in the Income Tax case, and 
 similar cases, the lawmaking power would have at once vindi- 
 cated its rights by the prompt removal of the judges. 
 
 Neither was the power granted to the United States judges by 
 the Convention at Philadelphia in 1787. The Reactionary ele- 
 ment which was in charge of that Convention was not inadvert- 
 ent to the great advantage of an irreviewable body having power 
 to negative the will of the people. They attempted to get into 
 the Constitution a provision to that effect. When that Conven- 
 tion met, to protect themselves from any influence from public 
 opinion and in defiance of the maxim that government should 
 exist only by the consent of the governed, it sat with closed 
 doors. The members were prohibited from making copies of 
 any resolution or other action or to correspond with constitu- 
 ents or communicate with others as to any matters pending 
 before the Convention. Any record of yeas and nays was for- 
 bidden ; but fortunately one was kept without the knowledge of 
 the Convention. The Journal was kept secret, and the vote to 
 destroy it fortunately failed by one majority. Mr. Madison's 
 copy was published only after the lapse of 49 years, when every 
 member had passed beyond human accountability. Only 12 
 states were ever represented, and one of these withdrew before 
 the final result was reached. Of its 65 members, only 55 ever 
 attended, and so far from being unanimous, only 39 signed the 
 Constitution, and some actively opposed its ratification by their 
 own states. In several states ratification was had by the barest 
 majority. In New York, I believe, a majority of one for ratifi- 
 cation was had by persuading a member of the Legislature to 
 absent himself. Its ratification by the required number of 
 States was secured only by a pledge to adopt the first 10 Amend- 
 ments which guaranteed the rights of man, a subject which had 
 been wholly omitted. In no State was there any ratification by 
 a vote of the people. 
 
 Even in such a convention, thus composed and thus secluded 
 from the influence of public opinion, the persistent effort to 
 grant the judges sudh power was repeatedly and overwhelm- 
 ingly denied. The proposition was made, as we now know, from 
 Mr. Madison's journal, that "the judges should pass upon the
 
 11 
 
 constitutionality of acts of Congress." This was defeated, 4 
 June, receiving the votes of only two states. It was renewed 
 no less than three times, i. e., on 6 June, 21 July, and finally 
 again, for the fourth time, on 15 August, it was brought for- 
 ward, and tho it had the powerful support of James Madison, 
 afterwards President Madison, and James Wilson, afterwards 
 a justice of the United States Supreme Court, the proposition at 
 no time received the votes of more than three states. On this 
 last occasion, 15 August, Mr. Mercer thus summed up the 
 thought of the Convention, as evidenced by its vote: "He dis- 
 approved of the doctrine that the judges, as expositors of the 
 Constitution, should have authority to declare a law void. He 
 thought the laws ought to be well and cautiously made, and then 
 to be incontrovertible." 
 
 Tho the doctrine that a court could set aside a statute and 
 deny the authority of the lawmaking power was not recognised 
 in England or any other country, shortly before the Convention 
 met the courts of four states, either because avid of power or 
 because they thought themselves a substitute for the authority 
 which before the Revolution had been exercised by the Privy 
 Council in England of refusing approval to the statutes of our 
 Provinces, had asserted such authority. In Rhode Island the 
 offending judges, who were elected annually by the legislature, 
 were dropped, and the doctrine in other states met with dis- 
 approval. These decisions were recent, and Madison and Wil- 
 son knew, as the Convention did, that they were endeavoring to 
 confer the same power on the Federal Supreme Court, and tho 
 it was persistently presented by them on four several occasions, 
 it, was thus overwhelmingly defeated. 
 
 While friends of this doctrine of judicial supremacy over the 
 other departments of the Government have ingeniously argued 
 in divers ways that the doctrine can be construed into the Con- 
 stitution, these votes are conclusive that the Convention refused 
 to put it there. It is not reasonable to suppose that when the 
 Convention gave the President the veto power, but expressly 
 provided that he could be overruled by two-thirds vote in Con- 
 gress, that they would have given by implication a greater veto 
 to the judges, without expressly so stating, and without making 
 their action reviewable as in the case of the Presidential Veto. 
 
 However plausible the arguments in favor of Judicial Su- 
 premacy, its friends cannot point to a line in the Constitution
 
 12 
 
 which confers it. The only words that can even be construed as 
 giving them any power is the provision that "the Constitution 
 of the United States and the laws made in pursuance thereof 
 shall be supreme." That does not authorise the Court to hold 
 any act of Congress unconstitutional, but it means that when a 
 State statute or Constitution conflicts with the Federal Consti- 
 tution and statutes enacted by Congress under its authority, the 
 latter shall govern, just as a later act controls an older one. 
 
 Even in Marbury v. Madison Judge Marshall did not claim 
 that any express provision of the Constitution conferred this 
 power, but derived it by implication. Indeed, freed from the 
 prepossessions derived from our long acquiescence in the doc- 
 trine, nothing could be more preposterous than the proposition 
 that five lawyers can in' their discretion set aside the will of the 
 people as expressed in an act by the Senate and House and 
 approved by the President, and that when this is done the hun- 
 dred millions of the American people are powerless in any way 
 to review such decision. 
 
 If I were speaking to a body of lawyers, I could name case 
 after case in which this has happened, and point out the bar 
 upon progress and upon the amelioration of the conditions of the 
 masses which has resulted therefrom. If I were to quote to you 
 the comments made by Thomas Jefferson upon some of these 
 decisions, the remarks of Andrew Jackson, of Abraham Lincoln, 
 and of others upon the exercise of this usurped power, it would 
 make your ears burn. 
 
 Governor Baldwin, formerly Chief Justice of Connecticut, 
 and a staunch defender of high prerogative in the courts, re- 
 cently admitted that "This right of a court to set itself up 
 against the legislature ... is something which no other 
 country in the world would tolerate." 
 
 Mr. Justice Harlan has well said : "When the American peo- 
 ple come to the conclusion that the judiciary of this land is 
 usurping to itself the functions of the legislative department of 
 the government, and by judicial construction only is declaring 
 what should be the public policy of the United States, we will 
 find trouble. Ninety millions of people all sorts of people 
 are not going to submit to the usurpation by the judiciary of 
 the functions of other departments of the government, and the 
 power on its part to declare what is the public policy of the 
 United States."
 
 13 
 
 I need not now refer to the case of Chisholm v. Georgia, in 
 which the Court haled a sovereign state, like a private indi- 
 vidual, to the Bar, and an indignant people promptly prevented 
 the recurrence of such a spectacle by enacting the llth Amend- 
 ment, as to which the Court as late as 1890, in Hans v. Louisi- 
 ana, 134 U. S., 11, said : "This amendment, expressing the will 
 of the ultimate sovereignty of the whole country, superior to all 
 legislatures and all courts, actually reversed the decision of the 
 Supreme Court." This has happened since in the reversal of 
 the Income Tax decision by the XVI Amendment. I will not 
 refer to the Dred Scott decision, which was so roundly de- 
 nounced, but which has since been cured by the 13th, 14th, and 
 15th Amendments. I will cite only two cases. 
 
 The people of New York, thru their legislature, felt aggrieved 
 that the bakers in your State were subjected by the greed of 
 their employers to enormous heat for an excessive number of 
 hours, to the shortening of their lives, and passed a statute 
 limiting such labor to 10 hours per day. The act was promptly 
 attacked by that Interest, supported by the influence of other 
 vested Interests which feared similar legislation. But your 
 State Court of Appeals, elected by your own people, in Loch- 
 ner's case, affirmed the power of your State to make such regu- 
 lations. Those great Interests at once took the case by appeal 
 to the U. S. Supreme Court at Washington. It was purely a 
 matter of police regulation, and the Federal Court had no juris- 
 diction over the matter. But they usurped it by the flexible 
 terms of the XIV Amendment, which means anything and 
 everything that the judges see fit, and which can be used to de- 
 stroy any legislation that they do not approve, and then five 
 judges, the majority of the Court, tho the four ablest judges dis- 
 sented, proceeded to tell the bakers that they must work as long 
 as their employers should require, and in ovens as hot as they 
 chose to heat them. With sardonic irony they added that they 
 did this because the bakers had a "right to contract." This was 
 adding insult to injury, for every one knew that the decision 
 was not in the interest of the bakers, whom the legislature was 
 trying to protect, but in the interest of the employers, who did 
 not wish to be controlled by the public in their greed. 
 
 It would have been a revelation to the men who passed the 
 XIV Amendment to protect the negro to find it construed as
 
 14 
 
 holding white men in slavery by prohibiting legislatures from 
 limiting the hours of labor or forbidding insanitary and dan- 
 gerous conditions. 
 
 In that case, Lochner v. New York, 198 U. S., 104, Mr. Jus- 
 tice Holmes, dissenting, thus finely defines the police power 
 which is reserved to the States: "The police power extends to 
 all the great public needs. It may be put forth in aid of what 
 is sanctioned by usage, or held by the prevailing morality or the 
 strong and preponderant opinion to be greatly and immediately 
 necessary to the public welfare." This power belongs to the 
 states, and it was judicial usurpation when the U. S. Supreme 
 Court overruled your State statute. 
 
 Then there was the Income Tax case. This tax had been held 
 legal by the Court for 100 years. Under it, during the war, 
 hundreds of millions of dollars had been collected to aid in 
 saving the Union. After long insistence by the people, that 
 great wealth was escaping its due share of taxation, while labor 
 and men of modest means bore nearly the entire burden of sup- 
 porting the Government, a new income tax was enacted, in 
 spite of the influence of a powerful lobby and of a large part of 
 the press, which ridiculed, after being duly inspired, an income 
 tax. In England one-third of the support of the Government 
 was derived in this way from the superfluities of the wealthy by 
 the levy of a graduated income tax and a graduated inheritance 
 tax, increasing the per cent with the size of the income. The 
 same system was in force in all other countries, as it had been in 
 ours. The bill passed the lower house of Congress unanimously, 
 and I believe there were only one or two votes against it in the 
 Senate. The President, who was a good lawyer, approved it. 
 The aggregated wealth of the country was opposed. The matter 
 was brought before the Supreme Court of the United States. 
 That Court at first affirmed the validity of the act in accord- 
 ance with all the precedents. Suddenly, one judge changed his 
 views. Information was imparted upon which a rehearing was 
 asked and then by a vote of five to four the act was held uncon- 
 stitutional and set aside, to the amazement of the whole country 
 and of all foreign nations. By what means this changeable 
 judge received wireless information as to the views of the 39 
 dead men who signed the Constitution of 1787 has never been 
 known. Certainly he had no respect for the opinions of the 
 preceding judges on that Bench who had held otherwise, nor of
 
 15 
 
 his four dissenting brethren, nor for his own opinion as ex- 
 pressed on the previous hearing. The result was that the vote 
 of that one man put the Congress and the President into the 
 absurd, not to say wicked, attitude of having passed a law in 
 violation of their oaths to support the Constitution. He also 
 showed a most profound contempt for the 80,000,000 of people 
 who then constituted the United States, but a great regard for 
 the interests and views of the 2 or 3 hundred thousand owners 
 of great wealth. The result was that by his vote he transferred 
 over 100,000,000 dollars of annual taxation from the very rich, 
 who were the most able to pay it, and placed this burden upon 
 the masses, who already paid more than their share of the bur- 
 dens of government. His change of mind has thus up to date 
 caused the masses to pay probably three thousand millions dol- 
 lars, which under the will of the people as expressed by the vote 
 of Congress and the approval of the President should have been 
 placed upon those most able to pay it. 
 
 The power, thus construed to be in a court, or indeed in the 
 hands of one man, to accomplish such an act as this without any 
 review or possibility of review and without any words in the 
 Constitution conferring it, is so exorbitant and unprecedented 
 that it needs no argument to demonstrate that it ought not to 
 be tolerated, and can not safely be permitted to continue. Not 
 the Czar of Russia, nor any other potentate, would have dared 
 to perpetrate such an act. 
 
 It may be interesting to note the origin of the doctrine of 
 judicial supremacy over the lawmaking power as it originated 
 in Marbury v. Madison, in 1903, sixteen years after the forma- 
 tion of the Constitution. The South was aware that the greater 
 increase in population at the North would give that section con- 
 trol over the House. For the protection of its slave property by 
 the Senate it kept up the process of always simultaneously ad- 
 mitting one slave state and one free state till this could be no 
 longer continued. The South also secured the election of a 
 Southern President or of a "northern man with southern princi- 
 ples," up to the election of Lincoln. Its last defense was the 
 power which Marshall had assumed for the Court, to set aside 
 Acts of Congress. The longer use of such power was jeopard- 
 ized in 1861 by the election of Lincoln, who had denounced the 
 Dred Scott decision, and by the old age of Taney, who died, in- 
 deed, in 1864. Thus for 63 years from 1801 to 1864 two South-
 
 16 
 
 ern Chief Justices, Marshall and Taney, together with Asso- 
 ciates of their way of thinking, held to the theory that legis- 
 lation by Congress hostile to property rights and slavery could 
 be vetoed by the Court. 
 
 It is thus singular that this doctrine which was largely a pre- 
 caution for the protection of property in slaves, and the XIV 
 Amendment which was passed for the opposite purpose of pro- 
 tecting the negro, have both become the refuge and safeguard of 
 the Interests. Neither now subserve their original purpose. 
 
 This doctrine is based upon the idea that tho a majority of 
 the Senators who are sworn to serve the Constitution may either 
 viciously or ignorantly violate the Constitution in the passage 
 of an act, and tho a majority of the House may do the same, 
 and tho the President may also either viciously or negligently 
 violate his oath of office by failing to veto an unconstitutional 
 act, and a minority of the Court itself may do the same, the five 
 men who constitute the majority are infallible and will never 
 do so, not even when they reverse their predecessors, or, as in 
 the Income Tax case, their own Court. 
 
 Marshall was a great Judge and rendered many valuable de- 
 cisions. But as a matter of history we know that he had strong 
 bias and, like other men, some faults. He was Secretary of 
 State in January, 1801, when appointed Chief Justice and took 
 his seat on the bench. Yet he held both offices up to the night 
 of 3 March, 1801, when his office as Secretary of State expired. 
 It was he who, at midnight, signed the commission to Marbury, 
 which he left on the table because unable to deliver it before the 
 clock struck 12, for Levi Lincoln, the new Attorney-General, 
 stood by him (as Parton says) with Mr. Jefferson's watch in 
 hand and forbade him to proceed. It was this commission 
 which he sought to validate as Chief Justice when a mandamus 
 was asked to compel Madison, the new Secretary of State, to 
 deliver it. He did not issue the mandamus. If he had, there 
 might have been impeachment proceedings which would have 
 nipped this doctrine in the bud, as was done in England by the 
 execution of Chief Justice Tressilian and the exile of his Asso- 
 ciates. 
 
 I would not have any one in this audience misunderstand me. 
 I am not arguing that the Supreme Court of .the United States, 
 or any other judges, were not able and incorruptible because 
 they differed with me in this matter. Nor does the fact that
 
 17 
 
 Thomas Jefferson, Andrew Jackson, Abraham Lincoln, William 
 J. Bryan, Theodore Roosevelt, and thousands of others have 
 denied the existence of this power in the judiciary put the 
 judges in the wrong. But the fact that judges are able and 
 conscientious does not confer such power when it can not be 
 found in the Constitution. 
 
 Men of ability are not free from errors, nor from being influ- 
 enced by love of power. However conscientious they may be, 
 placing them on the Bench does not change their nature nor the 
 views which while at the Bar they have entertained of the 
 sacredness and superiority of vested rights over human rights. 
 
 It is true that the audience before me, however respectable, is 
 not the people of the United States. At Syracuse there was a 
 large prison in which every utterance, however low, could be 
 heard by the custodian of the King. It was known as the Ear 
 of Dionysius. New York is the great and throbbing center of 
 this country its "Ear of Dionysius." What is said here, and 
 on an occasion like this, if it deserves any consideration, will be 
 heard and considered all over this country. To you, therefore, 
 I have submitted these views for your judgment, as the repre- 
 sentatives of the people who are and ought to be the supreme 
 power in the Republic. 
 
 Even Mr. Taft, who was long a judge and who is on record 
 in favor of judicial high prerogative, has said: "If the law is 
 but the essence of common sense, the protest of many average 
 men may evidence the defect in a legal conclusion, tho based on 
 the nicest legal reasoning and profoundest learning." 
 
 Mr. Herbert Croly says : "Every popular government should, 
 in the end, and after a necessarily prolonged deliberation, pos- 
 sess the power of taking any action which in the opinion of the 
 decisive majority of the people is demanded by the public wel- 
 fare." 
 
 Many judges have concurred in and written opinions holding 
 statutes unconstitutional, because, tho this power was never con- 
 ferred, it has been supported by long acquiescence ; and legisla- 
 tures have passed many statutes, which otherwise would not 
 have been enacted, by salving their consciences with the state- 
 ment, "If the act is unconstitutional, the courts will set it aside." 
 I am not attacking the judges for doing what most, if not all, 
 of them have done. But I support the proposition that such 
 authority has never been conferred by the Federal or any State
 
 18 
 
 Constitution ; that its exercise is dangerous, and especially so as 
 to the judges themselves, and that it rests solely upon long 
 acquiescence and not on any authority in the Constitution. We 
 have seen lately a formidable movement for the recall of the 
 judges and a recall of judicial decisions, and a growing antago- 
 nism on the part of the masses, who are coming to view the 
 courts with distrust and as being hostile to all progressive move- 
 ments for the betterment of their condition. 
 
 We can not claim that we are necessarily governed by the 
 people because of our form of government, nor that our officials 
 are really chosen by the people or are responsive to their will. 
 After the Revolution, as I have said, the suffrage was very 
 much restricted. Manhood suffrage was practically unknown. 
 Without going into the details in the different states, I may cite 
 the Constitution in North Carolina. In that state, down to 
 1855, no man could vote for a State Senator unless he owned 
 50 acres of land. Men who owned less, or no land, were not 
 deemed possessed of sufficient intelligence or patriotism to exer- 
 cise that right. Down to 1836, our Governor and all State offi- 
 cials were chosen by the legislature. And the judges were 
 chosen in the same mode, and for life, down to 1868. For 60 
 years our sheriffs, clerks of the court, coroners, and other offi- 
 cials were appointive or elected by the magistrates, or legisla- 
 ture. Changes in this respect to popular vote took place in 
 other States, some earlier and some later than with us. While 
 the change has broadened the influence of public opinion, we 
 have not yet reached the point where the control of any State 
 government or of the Federal Government is really in the peo- 
 ple. 
 
 In the last analysis, our Government is very largely a plu- 
 tocracy. Our nominations are made largely by party machines, 
 which more or less in different localities are supplied with the 
 bulk of their funds by great Interests, which are thus enabled to 
 dictate in a large degree nominations by each of the political 
 parties, leaving the people to take their choice between candi- 
 dates of like sentiments as regards the Interests. This is being 
 more generally understood, and hence the widespread agitation 
 in favor of the Initiative and the Referendum, and of legalised 
 Primaries, and of other measures intended to place the real 
 power in the hands of the people. Only experience can decide 
 how far the politicians can "beat" these measures, and how far
 
 19 
 
 they can be made effective by remedying the defects which shall 
 be found in them after trial. In many States the machines 
 have, so far, prevented the people from even testing the efficacy 
 of these measures. In others, the measures are on the statute- 
 book, but time alone can demonstrate, as already said, how far 
 they can really place the government of this country in the 
 hands of the people. 
 
 In reference to "Government l>y Judges" who hold the ulti- 
 mate power in this country, since there is no power to review 
 or annul their action when they set aside legislation, I will call 
 attention to the measures which have been proposed for curing" 
 this evil: 
 
 1. One of the remedies proposed, as to the United States 
 judges, is to change the undemocratic life tenure into tenure for 
 a term of years and to make them elective by the people, that 
 is, that the district judges shall be elected by the people of their 
 respective districts, and the circuit judges by the people of their 
 circuits, as in most of the States, and that the country shall be 
 divided into 9 divisions, for each of which a judge of the United 
 States Supreme Court shall be chosen by the people thereof, and 
 that the judges shall, from their number, elect the Chief Jus- 
 tice. Such an amendment has been repeatedly offered in Con- 
 gress, but the powerful influences in favor of the present system 
 have so far prevented its adoption, as for 90 years they pre- 
 vented the passage of the amendment to make the Senators 
 elective. As this change has been made in nearly every one of 
 the States, ther,e can be no question that it meets popular ap- 
 proval and that it should be adopted. It is, so to speak, a modi- 
 fied recall, in that it submits a judge's conduct to popular ap- 
 proval at stated intervals. It will not, however, cure the entire 
 trouble. The judges of most of the States have been made 
 elective and for a term of years. This has proved beneficial 
 (for the continuance of the former system had become unbear- 
 able), but will not cure the evil entirely as long as the judges 
 retain their assumed power of an irreviewable veto upon legisla- 
 tion. 
 
 2. Another remedy proposed, and which has been supported 
 by Mr. Bryan and other trusted leaders, has been the "recall of 
 the judges." This has been adopted in California, where for 40 
 years the Eailroads and other Interests practically dictated the 
 nomination and election of the majority of the judges, and die-
 
 20 
 
 tated many decisions. So intolerable was the condition in that 
 State that when an amendment to this effect was submitted to 
 the people it was adopted by more than 1-00,000 majority. The 
 same provision has been adopted into the Constitutions of Ore- 
 gon, Arizona, Nevada, and Colorado, and has been submitted to 
 the people for ratification in Kansas and Minnesota. In Ar- 
 kansas it was adopted by the people, but the Court set it aside 
 on a technicality. When Mr. Taft refused to approve the bill 
 admitting Arizona as a State because it contained this pro- 
 vision, the people of that State wisely submitted to his arbitrary 
 conduct; but immediately upon becoming a state submitted and 
 passed an amendment reinserting that provision. 
 
 The Recall of judges is by no means a new feature, except in 
 the fact that it is to be made by the people. In England they 
 have had this recall ever since 1688, for tho the judges are nomi- 
 nally appointed for life, they hold subject to a provision that 
 they can be removed at will and without cause by a majority 
 vote in Parliament. 
 
 We will come a little nearer home. In Massachusetts they 
 have always had exactly the same provision in their Constitu- 
 tion. When in 1820 there was a Convention to revise their 
 Constitution, Daniel Webster and others who represented, as he 
 did, vested Interests, earnestly pleaded to strike out this pro- 
 vision, arguing that it would make the judges subservient to any 
 passing gust of the popular will. But Massachusetts had a bet- 
 ter opinion of her people and of her judges. The Convention 
 refused to strike out the provision, which is still .in their Consti- 
 tution. In England and in Massachusetts and other States 
 which have such provision, it has not been often, if ever, used ; 
 but, in the language of Mr. Wilson, it has been, it seems, a good 
 "gun behind the door." 
 
 The recall of the judges is unnecessary where they hold for 
 a term of years, and not for life, provided they are really nomi- 
 nated and elected by the people. The recall as applied to the 
 judges is objectionable, in my judgment, for many reasons, and 
 among them this, especially, that it can be applied to cases of 
 ordinary litigation where the judge is exercising only his legiti- 
 mate judicial function. If as to such matters he proves cor- 
 rupt, he can be impeached ; and if he proves, feeble, he can be 
 dropped at the end of his term. The other proposed remedies, 
 which are set out below, have the great advantage that they 
 apply to prohibit, or to review, the Courts only when they at-
 
 21 
 
 tempt to exercise legislative functions by setting aside acts of 
 the legislature or Congress without any constitutional authority 
 in themselves to do so. 
 
 3. There is the remedy which has been ably advocated by 
 Mr. Roosevelt, which is commonly called by its opponents the 
 "recall of judicial decisions." In substance, however, it simply 
 applies to the decisions of the courts on constitutionality of 
 statutes the same remedy that the Constitution now gives as to 
 the veto of the President, to wit, that the statute which has 
 received a judicial veto shall be submitted to Congress, or the 
 legislature, as may be, and if the court's veto is overruled by 
 the same vote that is required to overrule an executive veto, the 
 statute shall be held in force. There can logically be no objec- 
 tion to applying to the judicial veto that has been assumed with- 
 out express authority the method that is given to review the 
 expressly conferred executive veto. 
 
 4. Another remedy, still, is a suggested Amendment that the 
 courts shall not be permitted to hold any statute unconstitu- 
 tional. Seeing that in every legislature and every Congress the 
 members are sworn to obey the Constitution equally with the 
 judges, and that in those bodies there is always a large number 
 of lawyers, and other' men of equal ability to the judges, there 
 is no reason that we should not conform our procedure in this 
 matter to that of England and all other countries which have 
 always denied to the judges any control over legislation, and 
 which have always refused the courts the overwhelming power 
 of an irreviewable veto upon legislation which our judges have 
 assumed. In Ohio their recent Constitution has modified this 
 suggestion by providing that the courts shall hold no statute un- 
 constitutional if more than one judge dissents. 
 
 This would seem logical, even if the judges rightfully pos- 
 sessed the veto power, because the United States Supreme Court 
 has always held that no statute should be declared unconstitu- 
 tional unless it was so "beyond all reasonable doubt." Ogden v. 
 Saunders, 12 Wheat., 269. In practise, however, we may ob- 
 serve that the Court held the income tax unconstitutional when 
 all previous courts, and indeed the same court in that very case, 
 had held that statute constitutional, and the opinion in favor of 
 its unconstitutionality was by a vote of 5 to 4. Upon this show- 
 ing, certainly, its unconstitutionality was not "clear beyond a
 
 24 
 
 of annulling their judgments and of commanding them what 
 judgments to render; the power of denying to Congress the 
 power to raise revenue by a method employed by all govern- 
 ments; making the fundamental sovereign powers of govern- 
 ment, such as the power of taxation, the subject of mere barter 
 between corrupt legislatures and private adventurers; holding 
 that a venal legislature temporarily invested with power may 
 corruptly bargain away those essential attributes of sovereignty, 
 and for all time ; that corporate franchises bought from corrupt 
 legislatures are sanctified and placed forever beyond recall by 
 the people; that great trusts and combinations may place their 
 yoke upon the necks of people of the United States, who must 
 groan forever under their weight, without remedy and without 
 hope; that trial by jury and the ordinary criminal justice of 
 the States which ought to be kept near the people, are to be set 
 aside and Federal Court injunctions substituted therefor; that 
 those injunctions extend to preventing laboring men from quit- 
 ting their employment, although they are liable to be discharged 
 by their employers at any hour, thus creating and perpetuating 
 a state of slavery. There is danger that the people will see 
 these things all at once; see their enrobed judges doing their 
 thinking on the side of the rich and powerful; see them look 
 with solemn cynicism upon the sufferings of the masses, nor 
 heed the earthquake when it begins to rock beneath their feet; 
 see them present a spectacle not unlike that of Nero fiddling 
 while Rome burns. There is danger that the people will see all 
 this at one sudden glance, and that the furies will then break 
 loose, and that all hell will ride on their wings." 
 
 These were the words of a very wise and just judge. There 
 are those who will heed them, and there are those who will 
 mock at them. To my brother judges who may hear them to- 
 night, or who may read them, I would cite the instance of the 
 ten virgins of whom Supreme Wisdom said : "And five of them 
 were wise, and five of them were not."
 
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