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MISS KELLIE O'LEARY
i SE
>
THE DEVIL’S OWN
It was back in dear old London during ;
the reign of George IV that the lawyers
of Lincoln’s Inn, Gray’s Inn, Inner
Temple, Middle Temple and all the
other Inns of Court, formed themselves
into a regiment of volunteers to fight for
the king in the event of Dear Old Eng
land being invaded.
When they were finally dressed in
their dashing uniforms and before being
inspected by the King’s steward they
selected a delegation to wait on his royal
nibs for the purpose of receiving a name.
“We have come Your Majesty,” said
the spokesman, crawling oil all fours
“to request Your Royal Highness to be
stow on this loyal band of lawyers a
name that befits them. They are ready
to die for your Royal person. ’ ’
King : * ‘A name you want that befits
them ?
Spokesman : “Yes, Sire.”
K. : “Call them ‘The King’s Own.’ ”
S. : “Your Majesty, we already have
a regiment by that name. Besides that
It would not be appropriate for a regi
ment, of barristers.”
K. : “Then call them ‘The Queen’s
Own.”
S. :“We also have a regiment by that
name. ’ ’
K. : “I’ve got it now, the only name
that will fit them ! Call them the Devil’s
Own, because they are retained for the
defense.”
READ THE DISCUSSION ON
THE RECALL OF JUDGES AND
FIND OUT WHY THE LAWYERS
ARE OPPOSED TO TPIE RECALL.
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l SECOND AVENUE Next Orplieiim Theater PHONE 186 §
if _ ___ _ 4
Proceedings of a Session of the Illinois State Bar Association
April 26, 1912, 8 O'Clock P, M.
(Continued from last issue)
ARGUMENT AGAINST THE RE
CALL OF JUDGES BY- MR. JAMES
H. WILKERSON, OF THE CHICAGO
BAR.
In the long and earnest debate in that1
convention there were matters as to which
there'was sharp difference of opinion,
but there was one matter around which
there was absolute unanimity, one idea
which was regarded as absolutely vital
and fundamental in any scheme of gov
ernment which might be devised. That
was that there should be one branch of |
the government t o which t li e citizen
could go and seek protection for his
fundamental rights against even the state
or the nation itself. It was admitted by
all that for this branch of the govern
ment to he efficient it was essential that
the courts of justice be completely inde
pendent. There must be a branch of
government where controversies can be
settled free from the impulses and mis
understandings cf the moment—a place
where justice under law shall be admin
istered and not the momentary wish |
of a temporal-}- m a j oritv of the
people registered. In one of his articles
in the Federalist, Hamilton, speaking on
this subject, says :
‘ ‘The complete independence of the j
courts of justice is peculiarly essential in
a limited constitution. By a limited con
stitution, I understand one which con
tains certain specified exceptions fo the
legislative authority; such, for instance,
as that it shall pass ro bills of attainder
on ex- post facto laws' and the like.
Limitations of this kind can be preserved
in practice in no other way than through
the medium cf courts of justice, whose
duty it must be to declare all acts con
trary to the manifest tenor of the Con
stitution void. Without this all the res
ervation or particular rights or privileges
would amount to nothing.
“This independence of the judges is;
equally requisite to guard the censtit-!
ution and the rights of individuals from j
the effects of those ill humors which the |
arts of designing men or the influence of
particular conjunctures sometimes dis-'
seminate among the people themselves j
and which, though they speedily give j
place to better informatkm and more de
liberate reflection, have a tendency in
the meantime to occasion dangerous in
ovations in the government and serious
oppressions of the mirror party in the I
1 community.”
It is for this reason that the application
of the principals of the recall to judges
presents a n entirely different question
’ from that presented by its application to
legislative and executive officers. The
question of law making, the extent to
which the people shall participate direct
ly in it, the manner in which legislators
snail be selected, have always been
questions upon which there have been
division of opinion as to the correct’
policy. How to give expression to the
1 popular'will and at the same time to !
make sure that the will which is express- ,
; ed is the sound, honest judgment of the
people, has always been a question o f!
! political expediency. And so with exec
■ utive officers. What they do is, so to
| speak, in the eyes of the people. The
! matters with which they deal have been
i the subject of political discussion.
I There has always been diversity of opin
ion as to the manner in which they
should be chosen, the tenure upon
; which they should hold, and the scope
of the authority which they should be
‘ permitted to exercise. The attempt to
I apply this principle, however, to judges
I involves a fundamental and radical
I change in our entire conception of the
! nature and function of one of'the three
i
branches of govesnment, and in effect
to declare that our judicial system as it
now’ exists has proved a failure and that
we are to substitute for it one in which
the decision of questions of law is to be
influenced largely, if not determined, by
the vote of a majority of the people.
In support of this proposed change it
is said that we have some judges who are
incompetent, others who are corrupt,
others who have shown a disposition to
favor certain classes in the decision of
cases,- others who have misused their
power in one way and another, and that
if a judge of this kind happens to get on
the bench the people should not be
obliged to wait until the expiration of
his term to get rid of him. Is there any
reason to believe that this sj-stem, even
if put into effect, will result in getting
who are either more competent or men
more honest?
I do not propose to stop to consider |
whether there is any real foundation for j
the complaints which w e hear against j
the judiciary. I think it fair to sav, how- j
ever, that when we consider that there I
I
are more than 5000 judges in this country
to.day, there has never been in any!
branch of public service in any nation, !
or at any period of the world’s history, I
a body of men. who have been actuated
by higher motives, and who, taken as a
whole, have endeavored more honestly
and sincerely to do what they believed
to be right. Here and there may be an
exception, but judges after all, are only
human. The lawyer undergoes no mys- :
terious transformation when he becomes j
a judge, by which he is given a new
brain with which to think or by which
he is invested with ideas of right and
wrong different from those which h e j
possessed when he was elected. It would
be strange indeed if, in so large a body
of men, there would not be found here
and there an exception to what I believe
to be the general rule of honest and
faithful public service.
Let it be assumed, however, that there
lias been just ground for complaint, and
that there is need for improving the
public service on the bench. Will the
proposed reform tend, even remotely, to
accomplish this result ? Will it tend to
place more competent men on the bench?
By that I mean men who are deep stud
ents of law, who understand its funda
mental principals, and who are actuated
by no other motives than a determin
ation to apply those principles. Is it not
the general rule that the man who is
best qualified to make the good judge is
the student and the thinker, rather than
the plausible and persuasive speaker who
lias the power to attract the attention of
the people and to impress them with a
depth of thought and learning which he
does not in fact possess ?
It is unquestionably true that, taking
human nature as it is, many of the most
able and learned men in the profession i
would refuse absolutely to go on the
bench under a system whereby they knew
that they must be prepared to defend
the decisions which they might make in
a campaign which involved their right to
continue to sit on the bench. The real I
student of affairs knows from experience
and from a reading of history, that in
-
many cases men who have acted from
the highest motives and wkq have done
the right thing, have been misjudged,
and-that it may require months, and
even years, before the people have come
.1 .
to see that their first judgment has been
an erroneous one. He knows that if he
goes on the bench determined to decide
the questions which are presented to him
in accordance with the law, and not with
his ear to the ground listening to tem
porary, public o p i ni o n, lie will in all
probability run counter to the public
sentiment of the hour, in reaching what
he believes to be a correct decision upon
the questions submitted to him for de
cision.
Even under present conditions it is
very diflic .It to induce men o f high
standing in the profession, who are best
fitted to solve the people in the capacity
of a judge, to consider a nomination for
a position upon one of our State courts.
Even now, there is a serious question
whether or not the elective judiciary,
with the manner in which nominatious
are made, has not gone fully as far as is
possible to go without seriously inter
fering with that independence which is
so essential to a fearless and efficient
judicial department.
Will the recall enable us to get rid of
judges who are really corrupt, if there are
such ? Will it not rather furnish the
opportunity for unscrupulous politicians
or proprietors of newspapers, who can
sway public opinion, to make unfounded
charges of corruption or misconduct
against men who have refused to serve
their selfish purposes. For a judge who
has been elected to the bench to be
charged with corruption or misconduct
in office, is to make against him a most
serious charge—a charge which involves
his reputation, and in which his whole
future life is at.stake. Certainly, it can
not be that in this country, whose boast
has always been that no man is to be de
prived of his life or his property or his
good name, without a hearing, a judge
is to be branded as a scoundrel by a maj -
ority vote at an election, without a hear
ing, without evidence, or without any
method of determining the true facts
with reference to the charge against him.
To convict a man by any such procedure
to ruin his whole professional life upon
no other evidence than charges from the
stump and statements in newspapers, is
abhorrent to every idea of right and
justice.
Will such a system tend, by placing a
restraining influence upon a judge, to
prevent his deciding erroneously a par
ticular case, or cases of a particular kind
It is perfectly apparent that, con
stituted as our society is to day, the eff
ect will be to place every judge in
jeopardy who, following the law' and
and applying it in accordance with prin
ciple and precedent, brings uqon himself
the anmity of a powerful class in the
community.
(To be continued)
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