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62D CONGRESS

3d Session

SENATE

{

No. 1052

THE

INDEPENDENCE OF THE JUDICIARY, THE SAFEGUARD OF

FREE INSTITUTIONS

ADDRESS BY

WILLIAM B. HORNBLOWER

TO THE GRADUATING CLASS OF THE

YALE LAW SCHOOL, JUNE 17, 1912

PRESENTED BY MR. MCCUMBER

JANUARY 30, 1913.-Ordered to be printed

WASHINGTON
GOVERNMENT PRINTING OFFICE

THE INDEPENDENCE OF THE JUDICIARY THE SAFEGUARD OF

FREE INSTITUTIONS.

[Address to the graduating class of the Yale Law School June 17, 1912, by William B. Hornblower, of

New York.)

In choosing a subject for this address, I have been tempted to take some academic topic such as the relative merits and demerits of the common-law system of jurisprudence “broadening out from precedent to precedent” as compared with statutory law rigidly embodied in codes, or the relative merits and demerits of combination as compared with competition in trade and commerce and the merits and demerits of statutory regulations on such subjects.

There are, however, certain burning questions of the day affecting the independence and integrity of our judicial system on which I feel it to be the duty of every lawyer to speak out with all the force and emphasis at his command and which I do not feel at liberty to ignore.

To evade or to ignore these questions would be to be recreant to my professional duty. When the integrity and independence of the judiciary are at staké, all other questions become unimportant.

When the sappers and miners are at work undermining the foundations of our judicial structure, it is idle to discuss questions of detail of construction or reconstruction of the edifice.

The young men just graduating from our law schools find themselves confronted by a most serious situation. They find the courts subjected to attack and exposed to peril. The rising generation of lawyers are called upon to resist this attack and to defend the court from this peril. As officers of the courts sworn to support the Constitution of the United States and of the State, and to faithfully discharge their duties as attorneys and counselors at law, it becomes their duty to see that no harm comes to the administration of the law, or to the usefulness or the prestige of the courts, and that no harm comes to the Commonwealth through this attack on the courts and the law.

The air is rent by the clamor of those who are crying out for what is known as judicial recall.

This is no longer an academic question. Three at least of our States have already embodied it in their constitutions. Agitation in favor of extending this so-called reform to other States has been and is being actively carried on. Advocates of the recall are found even in the ranks of our own profession.

The self-styled progressive is not necessarily the true progressive. He may be a reactionary of the worst kind. To set back the clock of time is not progress but regress. Civilization rests upon law. Law rests upon the courts. The courts rest upon popular respect. If for law and for the courts are to be substituted the voice of a temporary majority of the people, then are we pro tanto abandoning the achierements of civilization and drifting back to barbarism.

Civilization consists in subordinating the wishes of the majority to the rights of the minority. Slowly and carefully and painfully have the ideals of civilization been built up. Every now and then we are called upon to contend with an outburst of primeval passion in the shape of lynch law. The spirit of lynch law may be manifested in attacks on the individual citizen or in attacks on the courts themselves. In this country our fathers devised safeguards of the rights of a minority against the temporary whims of the majority by imposing constitutional limitations upon législative authority. The judiciary has by its duty to administer and define these constitutional limitations and to refuse to enforce unconstitutional legislation become the defender of those fundamental rights of the minority.

It has always been the boast of our Anglo-Saxon Republic that we are a common-sense people; that extreme theories have no charm for us; that we do not fall in love with mere phrases or catchwords. The conservatism of our people has been proverbial. The bar of this country has been the guiding force which has kept the popular ideals from running after strange gods.

The question now confronts us, are the old ideals to be abandoned ? Are we to continue to be a government of law administered by the courts, or are we to become a government of agitators by whom law and the courts are only to be tolerated so long as the law and the courts are in accord with the popular wishes of the moment? These are grave questions going to the very root of our system of government.

Of course, the proposition for recall of judges is not imminently threatening in those States where the judges are not as yet elected by popular vote. In Connecticut, in Massachusetts, and in New Jersey, for instance, where the judges are appointed by the governor or the legislature, there is no force in the a priori argument that a judge elected by the people should be immediately and directly responsible to and removable by the people. The spirit of antagonism to judicial independence, however, unless checked, will inevitably spread to the States where the judiciary is nonelective. Members of the bar in all the States are thus vitally interested in resisting the propaganda for recall of judges.

As to the question of the recall of judges during their term of office, the question is to be considered under various aspects. First, as to its effect upon the personnel and character of the judges themselves. Secondly, as to its effect upon the rights of individual litigants. Thirdly, as to its effect upon the principles of the law. Fourthly, as to its effect upon the rights of the public.

The aspects of the question in each of these particulars need to be separately considered. They are, however, in the popular discussion of the subject continually confused.

First, as to the effect upon the personnel and character of the judges themselves.

It is urged that men are frequently chosen for the bench who are incompetent, inefficient, or even corrupt; that the remedy by impeachment for the removal of a judge found to be incompetent, inefficient, or corrupt, is grossly inadequate; that where a judge is found to be incompetent, inefficient, or corrupt the people whose servant he is should have the right to summarily remove him without the formality of a trial and to substitute in his place a better man. This sounds plausible, but to anyone who is familiar with the working of our judicial system, the fallacy of this argument will be apparent if he stops to give it full consideration.

So far as concerns the question of incompetency or inefficiency this is a matter for difference of opinion. What constitutes incompetency, or inefficiency? Every defeated litigant considers the judge who decides against him to be incompetent and inefficient, and in this opinion he is frequently encouraged by his counsel who is temporarily smarting under what he considers an undeserved defeat. The question of the competency or efficiency of a judge is one to be determined by a careful consideration of his judicial decisions as a whole. To have the question of the competency or efficiency of a judge passed upon by popular vote is as irrational as it would be to have the competency or efficiency of a physician passed upon by popular vote. How are the people to determine whether the judge whose recall is proposed is really inefficient or incompetent? It is easy to allege inefficiency or incompetency, but opinions will differ as to whether a particular judge is or is not inefficient or incompetent.

When we come to the question of corruption, the injustice of having such charges passed upon by popular vote after a heated campaign with violent harangues by popular orators without any legal proof of the charges is manifest. To have the honesty or dishonesty of a judge determined by the effect of stump speeches upon the platform, by loose declamations and unsworn statements of interested parties without any opportunity for careful examination, is to subject a judge to an indignity and a possible injustice which may blast his reputation for a lifetime. How often have we heard disgruntled clients, or even indignant lawyers, complain that a judge has been bought or improperly influenced to render adverse decisions when we are confident that such charges are absolutely unfounded, and are the product of an over-heated imagination resulting from the bitterness of defeat in a hard-fought litigation!

The recall will furnish a ready weapon for party warfare upon the judges. Republican judges may be voted out and Democratic judges voted in and vice versa, whenever the shifting popular majority shall change from one party to the other.

Certainly as a method of improving the personnel of the judges, the method of subjecting them to the indignity of a recall whenever any defeated litigant can persuade a majority of the voters that a judge is incompetent or inefficient or corrupt is the worst possible method. To force a judge against whom such charges are made to take the stump and defend himself in public while still on the bench would make his position as a judge intolerable to himself and worse than useless to the public.

It is difficult enough already, especially in our larger cities, to induce the ablest and most successful memhers of the bar to forego the honors and pecuniary rewards of the bar for the labors and the smaller compensation of the bench. If the position of the judge is to become subject to the indignity of a possible recall, it is hard to see what inducement there would be to a successful practitioner to incur the risk of such indignity.

Moreover, the futility of the scheme for judicial recall as a remedy for existing evils, real or imaginary, is apparent. The advocates of recall overlook the fact that the successors of these incompetent,

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