Convention "acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of judicial offices in point of duration." The plan, he added, "would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution." Elsewhere in the same paper he declared that

the standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince: in a republic, it is a less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws. .

Nothing can contribute so much to its [the judiciary's] firmness and independence as permanency in office. This quality may therefore be justly regarded as an indispensable ingredient in its constitution; and in a great measure as the CITADEL of the public justice and the public security.

Similar ideas may be found in utterances of other influential members of the Federal Convention and of delegates to the ratifying conventions. They were

'In his earlier years Jefferson himself entertained like views. In a letter to George Wythe with whom he studied law, whom he declares

too close in time to the days when the king had tyrannized over the English judges not to appreciate the necessity of judicial independence. Page after page might be quoted from speeches in the ratifying conventions to show that the sentiment which the Federal Convention reflected in its plan of an independent judiciary pervaded the entire country. Upon this substantial basis was the judicial fabric reared. With adamantine firmness has it thus far withstood every assault upon it. Under the dominance of the notion prevailing in the middle of the last century that popular elections were a solvent for all political ills, the judiciary in many States was made elective, but the swing of the

to have been his " mentor," and with whom he maintained an unbroken friendship for forty years, he wrote in July, 1776, as follows:

"The dignity and stability of government in all its branches, the morals of the people, and every blessing of society, depend so much upon an upright and skilful administration of justice, that the judicial power ought to be distinct from both the legislature and executive, and independent upon both that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness, and attention; their minds should not be distracted with jarring interests; they should not be dependent upon any man or body of men. To these ends they should hold estates for life in their offices, or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law." He wrote to Archibald Stuart on December 23, 1791:

"Render the judiciary respectable by every possible means, to wit, firm tenure in office, competent salaries, and reduction of their numbers. Men of high learning and abilities are few in every country; and by taking in those who are not so, the able part of the body have their hands tied by the unable. This branch of the government will have the weight of the conflict on their hands, because they will be the last appeal of reason."

pendulum has been from short to longer terms, in other words, backwards in the direction of life tenure. Human invention never devised a better method than the appointive system with tenure during good

behavior.

ELECTION OF FEDERAL JUDGES NO REMEDY

To adopt the elective method in the case of Federal judges would be a dangerous departure from a system that has worked admirably for more than a hundred years. The proponents of such a method have never gone so far as to determine whether they would favor a national election law, thus centralizing power in the general government, or a law which would give the States, as States, a voice in the election of the judiciary, thus bringing Federal courts under State control. The appointment of judges by a president or governor is far preferable to their selection by machine leaders, which is what the present convention system means. No traffic is too despicable, no bargain too nefarious, for a boss; no interest, however sinister, hesitates to approach him. Choice of judges by direct nominations is out of the question. The eulogists of an omnipotent Parliament should remember that England appoints her judiciary.

It cannot be shown that under the appointive system judges have been more susceptible to corrupt influences than under an elective one. In the address from which I have quoted Judge Clark admits that the judges of the United States Supreme Court have never been

charged with being corruptly influenced. That, unfortunately, has not been true of an elective judiciary, for it has not only been charged, but proved, that elective judges have in some instances been corrupt. Nor do "big business" or "corporate interests" have more sway with appointed, than with elected, judges, nor can it be proved that the appointive system lends itself more to conservative influences. Probably the Supreme Court of the United States is to-day more responsive to the popular desire for melioristic legislation than are the highest tribunals in some States where judges are elected.

The chief purpose of an elective system is to establish some degree of control over judges, so that they may not become arbitrary and lose all sense of responsibility to the people. Jefferson's great fear was that judges who were not elected, and were not readily removable, would become autocratic. On the other hand, the theory of the creators of the present judicial system was that a judge should be placed beyond the menace of recall, except for failure in performance of duty. Impeachment can be made a live remedy, as can also removability for cause. The demand for recall springs, however, not so much from doubt of the integrity of the courts as from dislike of their decisions. To enforce recall because decisions are repugnant to the popular wish is to make judges dependent on popular will alone for the tenure of their offices, and this is to take a fatal step backwards, and in the name of progress.'

I

1 Arbitrary recall of judges by the legislature is not only wrong in principle but would prove impracticable. It is said that the legislature

TUTORIAL RECALL A FALLACY

Sac Saces as da recall originate in the gs di most fundamental misconceptions of the SOC state. We bear much about the rule of the peogie, and the nights of the people.-phrases that are too em cidris less the limitations which they regere be kept in mind. It may shock the unrefecting to hear that the rule of the people would be synonymous with Anarchy-but this is strictly true.

of New York may remire miges without assigning reason, although ths Onstraron off the constitution seems to me doubtful. Suppose that the Ljeged power had been invoked against the Court of Appeals paiges in the Ives case-the result merely would have been to convert the legislature into an arena in which the reasons for and against the Court's decision would have been presented. Cogent reasons could have been advanced to support the Court's view, and against it. Suppose the panacea, now urged by Senator Owen, of having the Federal judges removed by Congress without cause had been in effect when the income tax cases were decided? A motion in Congress to remove the Supreme Court justices would simply have transferred to Congress discussion of the reasons for and against the constitutionality of the law. Only in times of intense popular excitement such as prevailed during the Johnson impeachment proceedings in 1868, would there be a chance of removing the judges. The strain upon the institutions of the country would be one which it could not long endure.

Were Congress actually to remove the judges, could its decision be said to accord with the popular will? Properly the power of removal could be exercised only by a Congress elected upon that issue, and what friend of his country would wish to see such an issue injected into politics? A Congress not elected for that purpose would be acting arbitrarily in the removal; and if members who voted for it should lose their seats, would that be evidence that the removal was not in accordance with popular will? A vote to remove would at best represent the wish of a temporary majority, and government by a temporary majority would soon usher in anarchy. To have a popular vote for removal, or recall by the people, is unthinkable.