while they were keeping one eye on the tyranny of King George, it was just as well to keep the other on the tyranny of the potentate that John Randolph, of Roanoke, subsequently dubbed King Numbers. They lived in an age when the electorate was disposed to accord a wider scope to the principle of representation than it is now. They knew the feebler as well as the stronger side of the populace which Coriolanus irreverently calls the "mutable, rank-scented many." They believed monarchical and aristocratic forms to be incompatible with human progress and happiness in a community distinguished by such a high degree of knowledge and political insight as the thirteen American commonwealths. They justly thought that the people should be the ultimate depository of all political authority, and they left to the people a larger measure of direct participation in their own affairs than any community but the thirteen States and the pure democracies of the old world which had been universally condemned by human experience had ever known. But, at the same time, taking duly into account the collective vices of masses of men who have not in their calmer moments subjected their own actions to fixed rules of conduct administered by the wisest heads and the clearest consciences in their midst, they recollected that power is a cup from which the multitude may drink even deeper draughts of intoxicating arrogance than any single individual; that human beings en masse are in their political, as well as their personal relations, under the sway of Pan rather than of Minerva, impulsive, fickle, susceptible to demagogic flattery and cajolery and the contagion of passionate agitation, easily duped by cunning and selfish leadership, and yet far more callous to the consequences of their own acts than any one of their number can ever be, because of their sense of corporate exemption from responsibility. The result was that those able and far-sighted men not only imposed legal restraints and checks upon Presidents, Congressmen and Judges, but alsɔ even sought to protect the people themselves against tem

porary gusts of popular passion and caprice; and in no respect was this intent more clearly indicated than in the aloofness from dependence and rash attack which marks the position of the judge in our scheme of Federal polity. Indeed, one of the most interesting things about the Federal Constitution, as well as the Essays of the Federalist, is the testimony that they afford to the extent to which the authors of the Federal Constitution assumed that the American people themselves were too intelligent and manly to refuse to recognize the dangers of unqualified popular supremacy, and to object to restraints imposed by their wiser and serener hours upon their less judicious and more tempestuous ones. "This independence of the judges," says Hamilton in No. 78 of the Federalist, "is equally requisite to guard the Constitution and rights of individuals from the effects of those ill humors which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves, and though they speedily give place to better information and more deliberate reflection, have a tendency in the meantime to occasion dangerous innovations in the government and serious oppressions of the minor party in the community."

Unhappily, after the ratification of the Federal Constitution, these truths were partially lost sight of in the triumphant Democratic movement which, under the leadership of Jefferson and Andrew Jackson, exerted such a profoundly modifying influence in many respects upon the pre-existing political ideas and methods of the American people. It is a noteworthy fact that in 1807 the fruitless trial of Aaron Burr was followed by a motion in each of the two branches of Congress designed to bring about an amendment of the Federal Constitution making the tenure of Federal judges a tenure for a term of years instead of for life, and rendering them removable by the President upon the address of both houses of Congress. These motions, of course, were not successful, but similar innova

In some

tions in many of the States were measurably so. instances State judges were made elective, or their terms of office were shortened. The New York Convention of 1846 so far responded to the popular temper responsible for these changes that even the splendid renown acquired by Chancellor Kent under the past judicial system of the State did not deter it in proposing judges elected for five years by the voters instead of judges appointed for life by the Governor and Council, and from extravagantly declaring: "The happiness of the people of this State will henceforth under God be in their own hands."

A humorous illustration of the loss of official prestige which inevitably flowed from such short-sighted conceptions of the judicial office is found in the familiar story of the American judge who was compelled, by the crowded condition of a tavern, to sleep in the same bed with an Irishman. "Pat," said the judge, "you would have been a long time in the old country before you would have slept in the same bed with a judge." "Yes," replied Pat, “and Your Honor would have been a long time in the ould counthry before you would have been a jedge."

The effect, on the whole, of the Democratic movement of which I speak was doubtless to appreciably impair the independence, dignity and efficiency of the Bench; to what extent precisely it is unnecessary to inquire; but the total alteration operated by it in the salutary conditions surrounding the judicial office in the beginning of our national history was not material enough to produce results positively disastrous to the morale of the Bench.

It remained for our own time, perplexed by industrial monopolies and irresponsible political agencies unknown to the Constitution and the laws, distrustful of all representative institutions connected with the existing social order, fevered by a revolutionary disaffection which apparently left no resource except an appeal to the direct action of the democracy itself, to bring forward the startling proposals, which, if carried fully into effect, would, in my judgment,

go far towards reviving some of the worst features of the English judicial system when judges were dependent upon the mere favor of the King. I refer, of course, to the recall of judges and the recall of judicial decisions, twin shoots, as I see it, from what the Sovereign Poet calls

"The insane root that takes the reason prisoner."

The clause in the proposed Constitution for Arizona, stigmatized by President Taft in such vigorous terms, affords us a very good conception of the recall of judges reduced to a concrete legislative form. Under its provisions. all county and State judges were six months after their election to be subject to the recall. It could be initiated by a petition signed by electors equal to 25 per cent. of the total number of votes cast for all the candidates for the office at the previous general election. Within five days after the petition was filed the judge might resign. If he did not an election was to follow, in which his name was to be placed on the ballot with those of all other candidates at the same election. The petitioners might print on the official ballot two hundred words showing their reasons for urging his recall, and he was to be allowed two hundred words on the same ballot for his defense. If he received the highest number of votes, he was to be continued in office; if not, he was to be in the position of having been removed, and was to be succeeded by the candidate for his office who had received the highest number of votes.

No law-giver, so far as I know, has given legislative expression to the Recall of Judicial Decisions, but Mr. Roosevelt has, I suppose, stated it in terms as definite as anybody else, and I accordingly turn to his exact words as the clearest exposition of its meaning and scope. In his Columbus speech he declared that what the Supreme Court of the United States decides to be law binds both the national and state courts, and all the people within the boundaries

of the nation, but the decision of a state court on a constitutional question, he said, should be subject to revision by the people of the state. If any considerable number of the people, he added, feel that the decision of the Supreme Court of a state declaring a given statute unconstitutional because in conflict with the State or the National Constitution, is in defiance of justice, they should be given the right by petition to bring before the voters at some subsequent election special or otherwise as might be decided, and after the fullest opportunity for deliberation and bebate, the question whether or not the judge's interpretation of the Constitution is to be sustained. If it is 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.

Why, if existing constitutional arrangements are to be altered so as to constitute the people an appellate court for the determination of constitutional questions, the Supreme Court of the United States, too, should not be subject to the appellate jurisdiction of the people of the entire United States, this hasty Justinian does not tell us. It is composed of eminent lawyers, drawn from the different States of the Union, some of whom but for the accidents of life might have been members of the highest courts of appeal in the states of their respective residence instead of our most exalted national tribunal.

If the decisions of the former courts upon questions arising under the Federal or State Constitutions should be subject to popular revision, should not the decisions of the latter court be subject to popular revision also? And if the decision of the Supreme Court of the United States upon a question arising under the Federal Constitution is to be final, why should the decision of a State Supreme Court upon such a question be subject to popular revision at all? Every such question under existing law can be