THE RECALL OF JUDGES |
Proceedings of a Session of the Illinois State Bar Association |
April 26, 1912, 8 O'clock P. M. 1
(Continued from last issue)
I do not know that it makes any
difference to the officer who is removed
what you may call the procedure so
long as it results in his deserved re
moval ; nor do I think it niakes any
difference to the public what you may
denominate the procedure, whether im
peachment, removal or recall, or what
not, so long as it is practical and eff
ective in bringing about removal in
proper cases.
What I am insisting upon is that we
recognize and realize the fact that the
fathers attached no quality of infallib
ility to any public officer, not even
judges, but wisely provided for the re
moval of all unfaithful officers.
The fathers of the Federal Constit
ution not only made provision for the
removal of all public officers, but the
fathers of the state constitutions like
wise provided for the removal of public
officers.
It is a matter of real absorbing
interest to study, observe the growth,
development and use of the various
delegated powers of the Federal Con
stitution.
If the fathers were right in recogniz
ing the transcendent importance of the
right to remove in proper cases, and
the legislative departments, upon whom
that power has been conferred, have
absolutely failed to act in the exercise
of that power for half a century or
more, is not that in itself sufficient to
make the people pause and consider as
to whether or not they should not now
recall that delegated power, and return
ts their own hands the right and power
to recall public officers ?
Can you, in your lifetime, recall a
single instance of the impeachment of
a judge by the legislature of Illinois ?
Can I, in my lifetime, remember a
single instance of the impeachment of
a judge by the Ohio legislature ? Or
has our poor mortal clay, with all its
infirmities and weakness, become in
fallible and divine under the judicial
ermine ? If so, how can we account
for the widespread and deep-seated
discontent with courts, their procedure
and their final judgments ?
It will not do to say that this feeling
of unrest and dissatisfaction as to the
present administration of justice is the
work of a few agitators or a radical
part of the press. That is paying an
undeserved compliment to them as
;
molders of public opinion.
But, allowing for exaggeration of
statement, prejudice of opinion, dis
appointment of suitors, and all such,
measured merely by the calm deliberate 1
dissenting opinions of the judges them
selves, I ask you, have not the people
good cause to withdraw and withhold
their confidence in courts touching their
failures in the administration of speedy
and substantial justice. equitably and
economically administered ?
It would be impossible to itemize or
classify all of the grievances against
courts that have been mentioned and
discussed. The most serious and im
portant ones could well be embraced
in some one of the following classes :
First. Too much delay.
Second. Too much expense.
Third. Too^much uncertainty in the
law.
Fourth. Too much idolatry of ancient
precede*t, the more ancient the^ more
sacred. If the ancien,t condition has |
long since passed the precedent should;
go with it.
Fifth. Too many trials and appeals
to the disadvantage of the poor and the
advantage of the rich/ Litigation is an
expensive luxury. f
I
.1
Sixth. Usurpation by courts of legis
lative right and power. Xo English king
nor court though monarchical dares to
hold an act of the English parliament
unconstitutional. Our presidents, gov
ernors aud courts, with utter abandon,
are vetoing and nullifying intelligent,
conscientious public opinion, crystallized
in their regular and orderly forms of
law.
' Seventh. Too much regard for rule,
too little for reason. Too much jugglerv
of the technical pleader, too little justice
for the client.
Who is responsible for this ? The
judge, the court, chiefly the courts of
last resort, whose decisions and judg
ments must be followed by the inferior
courts else the judgments below will be
forthwith reversed and another trial again
had.
Now, wliat do the people propose to
do? Simply propose to change the jury
for removal from the legislature to the
people themselves. Why, that is where
we get all our juries from anyhow, from
the plain people. They propose to say to
the legislature—you have not been faith
ful in the exercise of the right to remove
judges, you have absolutely ignored your
duty in that respect, you have absolutely
failed to use it or try to use it. We now
propose to try the experiment of using it
ourselves. *
Anything new about withdrawing this
delegated power? Let us see. Do not
shrink or shudder at this proposition!
Have we ever changed juries before in
determination of important federal
affairs? Let us examine the history of
the selection of president. The fathers
said in the constitution, if you were a
citizen thirty-five years old, you were
qualified to be elected president, but you
were not qualified to vote directly for
president. That should be done by spec
ial jury, called the electoral college. The
members of the college, voted for directly
by the people, were given the special
and important task of electing a presi
dent. They were distinguished and most |
important dignitaries in the early days of
the republic, but today they are no more
serviceable than the wart on a dog’s tail.
Though the written law is the same as
when the college was first organized, the
unwritten law has placed in the hands of
the people the right to choose their pres
ident and that choice has been uniformly
expressed and ratified by the members of
the college even in the hot Hayes-Tilden
contest of 1876.
They used to have a congressional cau
cus to nominate party candidates for pres
ident. This was supplanted in Jackson’s
day by the delegate party convention in
order to get nearer the people’s choice.
In order to eliminate the political boss
and business boss in manipulation of
party conventions, let me predict that in
four years more the people will nominate
by direct primary their own candidates
for president.
This withdrawal of delegated power as
to the selection of president is just as
noticeable in the election of United States
senators. Tor years the people of the
republic have been demanding the right
to vote directly for the United States
senators.
Constitutional amendments have been
urged for years withdrawing this dele
gated power from the general assembly
and returning it to the people.
But for the opposition of the United
States senate, controlled by big business
and big bosses, we would, many years
ago, have had a constitutional amend
ment. However, in many of the states,
by the enactment of primary laws for the
choice of United States senators by direct
vote of the people, the legislatures of
many of the states today, in the matter
of the choice of senators, exercise the
same function and no more, as the elec
toral college does in the choice of presi
dent.
Through it all we see a general with
drawal of delegated power from the elec
toral college, the congressional caucus,
the political convention, in nominating
and electing president, withdrawal of
delegated power from tlie state legisla
tures in the nomination and election of
United States senators, and, ere long, at
least-in the state governments, provision
will be made for the withdrawal of the
delegated power from the state legisla
ture for the removal of judges and other
public officers, and the same to be placed
and exercised by the direct vote of the
people themselves.
Today there is no serious objection to
the people exercising the right of remov
al as to the legeslative officers or execu
tive officers for misconduct in office, but
in many quarters, particularly the bench
and the bar, there is a holy hostile horr
or against the excercise of the right to
remove judges.
For the correction of the aforesaid
grievences and complaints against judges
through recall by popular vote under
proper safegaurds, I submit the follow
ing for your calm and careful considera
tion:
First. Every reasonable argument ap
plicable to the removal of legislative and
executive officers by bopular vote ap
plies equally to judicial officers. If not,
what does not?
Second. As to the judiciary, there is
absolutely no check or balance from
either of the other branches of the gov
ernment. Eegislative branches are a
check on each other. The governor may
check the legislature by veto. Courts
may check the legislature and declare
the law unconstitutional, or limit its ap
plication. The executive may be check
ed or have his power cut off or limited
by legisiative act or judicial injunction.
Again, the legislative and executive
branches are under the constant publicity
of the press. Comparatively little is
known about the judicial branch. Irre
sponsible, unchecked power is within
a step from actual tyranny, or a sinister
subserviency to special interest.
Third. Courts are now excercising
jurisdiction in this country excercised in
no other civilized country in the world.
I refer particularly to judgments declar
ing legislative acts contrary to state and
federal constitutions and against sound
public policy.
No English court for more than two
hundred years has held an act of parlia
ment unconstitutional. Such jurisdic
tion had not been excercised by any
English court for seventy-five years prior
to the formation of our Federal constitu
tion. The fathers never intended to
confer such extraordinary jurisdiction,
then unknown, else they' would have
provided for it in the constitution. It is
an usurpation of judicial power.
The excercise of this unwarranted and
usurped governmental power against the
public interest, against the public health, .
safety and life, has done more than any
other single thing to arouse the present
popular hostile feeling toward our courts
of last resort.
To~be Continued in Next Issue.
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^ H •-1 WtttBtH WKBtHEA WBKk I1 l.. .J
SUPPRESSED INFORMATION
ON THE CAUSE OE IDLENESS
In One of Commissioner Wrighfs Reports Re
garding Unemployment the Following
is Given Below.
THE CAUSE OF IDLENESS
Establishments closed, unable to get work, and slack work ♦ 56.96
Sickness ♦ . . . ♦ 23.65
Vacation ...... 6.45
Bad Weather ...... 2.25
; Strike ....... 2.07
Accident . . . . . .1.66
Not given ....... . 6.68
Drunkenness ....... ♦ .26
Before entering into an analysis of the
! real causes of the unemployment of’the
I ■
I wage workers, • I wish to consider the
above table briefly, in order to puncture
some of tlie glaring falacies spread broad
cast by capitalist writers and speakers.
The real causes of unemployment, as
we shall see presently, are not hinted at
; by Mr. Wright and his co-laborers..
We are calmly told by a group of self
satisfied reformers that “drunkenness
| causes idleness—hence misery and deg
radation. Abolish the liquor trrffic, and
you end idleness. ’ ’
Mr. Wright’s investigation shows that
one-fourtli of one per cent of the idleness
which he found existing among the
working class was caused by drunken
ness. “It may be well to remark” says
Mr. Wright, “that it is quite probable
that drunkenness in some cases was re
ported as ‘sickness’ by the forebeariug
wife when giving data for the schedule.”
Assuming that this is true to a certain
extent, that the figures given are not far
from wrong, one has but to remember
that Mr. Wright tells us the average
workingman’s family spends 25 cents a
week for liquor. As one-half of the fam
ilies investigated reported no expend
iture for liquor it would leave an aver
age expenditure for each workingman
who did spend his money in riotous liv
ing of 50 cents per week. Fifty cents
per week wouldn’t go very far towards
habitual drunkenness. In the absence
of any more definite figures on this par
ticular phase of idleness, we must ac
cept the conclusions of the Labor Com
missioner, as approximately correct—in
which case drunkenness among the work
ing class as a cause of idleness may be
dismis-ed as of little importance.
Driven to the wall on this proposition,
the bourgeois economist, anxious to
throw the responsibility for chronic idle
»
ness upon the working class, points to
the long array af strikes—strikes, we
are told, that in all cases and at all times
inaugurated by the men. Assuming that
this is true, we find charged up against
them responsibility for 2.07 per cent of
the idleness we find iu this country.
Add this to the. 26 of one per cent charged
against drunkenness, and we find, ac
cording to the best figures produced by
the capitalist class, less than 3 per cent
of the appalling total of idleness which
exists in the United States, at a time
when the country is enjoying a gratify
ing period of “prosperity,” chargeable
to the working class.
‘ ‘You surely will not charge our ben
eficent system with the idleness caused
by sickness, ’ ’ protests the capitalist apol
ogizer.
I will let Mr. Robert Hunter answer
this question, as follows:
There is no other nation, comparable
industrially to tlie United States, which
is so backward as this country in its
knowledge, in its legislation, in its ad
ministrative machinery for dealing with
the insanitary conditions in factories,
mines and workshops, and in preventing
or regulating those dangerous processes
in industry which are respousible for a
very Urge number of unnecessary dis
eases, accidents and deaths. No other
country has so much as our own permit
ted individuals to disregard, to a crim
inal extent, the health and welfare of
employes. I dare say no other nation
has so many cases of illness wholly due
to preventable industrial causes as the
United States. The workingmen who
are crushed, crippled or killed, who con
tract incurable diseases, who are poisoned
or who are incapacitated by carelessness,
insanitary conditions, or dangerous mach
inery, are so numerous in this day that
in a very few decades we shall look back
upon this period as one of downright
barbarism. No one can help ^knowing
that sickness is caused by vile tenements,
by dangerous employments and unsan
itary workshops; furthermore, no one
can fail to know that an excessive num
ber of deaths occur among the working
people employed in certain industries
and live in certain tenements. The
cause and effect are clear. Then why
does not the owner or employor remedy
the cause of sickness, poverty and death?
“He probably does not know it exists’ ’
is the ordinary answer. But it is no an
swer. Attempt to remedy the evils by
legislation, or by enforcement of the
laws, and then you begin to realize that
you are in a fight, and that, for one
reason or another, the landlords and em
ployers are against you. Every move
ment you make is watched and attacked.
Even bribery will be used to defeat san
itary measures; that is to say, measures
to save life. Now the conclusion one is
forced to draw from an exyerience of
that sort is not a pleasant one, but the
logic by which one reaches the conclusion
seems clear and certain. These men
are murderers.
This is a strong indictment, but who
is willing to undertake to refute Mr.
Hunter’s statement of facts and his con
clusion that the employing and landlord
classes are responsible to a very large
degree for the sickness and disease
among t\ie working class?
But these men do not have to work in
(Continued on Page 4.)
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