Page images

and remunerative or the contrary thereof, and giving to labor just reward or causing enforced idleness as the legislation is wise or foolish and is founded on accurate and comprehensive knowledge, to which well-settled principles of political economy are applied, or is the result of demagogy.

The law of master and servant is being revolutionized. Hours of labor, appliances of labor, liability of employers, compulsory compensation to injured workmen, are all the objects of constructive legislation which is seeking to benefit labor and not to do violence to established principles of private right and settled maxims of free government. These problems have to be answered. The demagogue cannot answer them. Dynamite cannot answer them. They can only be answered by the clearthinking and courageous lawyer. The labor problem touches at many points immigration, naturalization, exclusion, and citizenship. Citizenship carries with it the elective franchise, and no greater duty rests upon the law-its ministers, judges and lawyers—than to see that the right to vote shall not be denied or abridged. Make the qualifications to vote as high as the welfare of the republic demands, but no citizen, whether born or naturalized in the United States, possessing the legal qualifications to vote should by direction and a fortiori by indirection, have his right denied or abridged. Under the guise of police power or public policy-twins of doubtful parentage but of numerous progeny—legislatures, State and federal, are enacting laws affecting “affairs long since in all civilized lands regarded as outside of governmental functions," while commissions exercising powers of sovereign States have been created, and the Demos has been encouraged to destroy the limitations of the Constitution, which are the bulwarks of our liberties. Courageously opposing unnecessary changes in the law, but broadly, liberally and actively inaugurating and supporting needed reforms in substantive and procedural law, the lawyers must determine the very form and structure of our constitutional government.

“What is a Constitution? It is the form of government delineated by the mighty hand of the people, in which certain fixed principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature and can be revoked or altered only by the authority that made it. The life-giving principle and the death-dealing stroke must proceed from the same hand. . . The Constitution is the wish or will of the people themselves, in their original sovereign and unlimited capacity. .... The Constitution fixes limits to the exercise of legislative authority, and preserves the orbit within which it must move. In short,

the Constitution is the sun of the political system, around which all legislative, executive, and judicial bodies must revolve. The Constitution is the origin and measure of legislative authority. It says to legislators—Thus far ye shall go, and no farther. Not a particle of it should be shaken, not a pebble of it should be removed. Innovation is dangerous; one encroachment leads to another; precedent gives birth to precedent; what has been done may be done again; thus radical principles are generally broken in upon, and the Constitution eventually destroyed. Omnipotence in legislation is despotism."

I commend to you, the American lawyers, the words of Cicero:

“Would you have power and honor, would you have the esteem of the wise and good, value the Constitution under which you live.--and the quaint words of Sir Edward Coke:

“And for a farewell to our jurisprudent, I wish him the gladsome light of, jurisprudence, the loveliness of temperance, the stabilitie of fortitude, and the soliditie of justice."





All thoughtful men agree that it would be impossible to govern any country wisely without a good judiciary; and accordingly every enlightened nation has established courts, conferring on them such powers and imposing on them such duties as seem best calculated to promote the public welfare. Indeed, the importance of the judiciary is now so thoroughly recognized that in every land where liberty is cherished and the law respected, the people are engaged in a constant struggle to improve their system; and in that struggle the lawyers have everywhere borne the most conspicuous, as well as the most useful part. With that thought in my mind, it has seemed to me that I could not better employ the hour which it is my privilege to spend as a guest of the American Bar Association than in discussing “ The American Judiciary.” The subject falls naturally into three principal divisions: the selection and the tenure of the judges; the method of administrating justice; and certain exceptional features.

THE SELECTION AND TENURE OF JUDGES. Since the American judiciary includes our state courts as well as our United States courts, and as practically all the state judges are elected for a term of years, while all of the United States judges are appointed for life, neither the manner of selecting our judges nor their official tenure can be deemed a characteristic of our system. Many intelligent men insist that since our state and federal judiciaries differ so widely in that respect, one or the other must be wrong; but that does not necessarily follow. It is entirely possible that the same end may be reached in two different ways without either way being wrong. They may both be good; and the difference may only signify that the one is better than the other,

It is perhaps a waste of time for me to consider whether the state or the federal practice is the wiser, because nothing which I could say will produce any change in either. The policy of the general government, and the policy of the states, in that regard, are both fixed; and, in my judgment, are fixed irrevocably. Nothing less than a political convulsion will ever move the United States to elect its judges for a term of years; nor is it probable that any change of sentiment will ever induce these states to appoint their judges for life. The question, however, must always be an interesting one, and it is worthy our consideration.

I am not one of those who believe that the best judges are always secured by appointments for life. I know the advantages of such appointments, and I also know the disadvantages of them. I understand the argument that a President or a Governor is more apt to appoint, than the people are to elect, good judges; but the practical results have not demonstrated the soundness of that argument. We have not, of course, been able to compare a federal judiciary elected with a federal judiciary appointed; but we have passed from the federal courts which are presided over by judges appointed for life, into the state courts which are presided over by judges elected for a term of years, and a majority of the lawyers with whom I have the honor of a personal acquaintance prefer the state courts.

That preference is not based on any fear that justice cannot be obtained in the federal courts; and it is due largely, if not entirely, to the demeanor of the federal judges. They are more arbitrary with the lawyers, less patient with the witnesses, and less considerate of the parties. I expect all federal judges to resent that criticism, but I assure them that it is a friendly one, frankly spoken in the hope that it will help them to see themselves as others see them, and thus aid them in relieving themselves from a censure which they must know is very general, although they may not think it just.

I do not believe that the difference between the demeanor of state and federal judges is attributable to any difference in their dispositions, and I attribute it to the difference in their tenure of office; for there are few men in this world so perfectly constituted that they will exercise a power which cannot be taken from them with the same moderation as they would exercise a power which can be taken from them. That same sense of security which is relied on to make federal judges independent of public clamor may also make them indifferent to private right; and it is absolutely certain that any judge who would be an arrant coward without that sense of security will be a petty tyrant with it.

I do not doubt that a judge appointed for life will fear the people less than a judge elected for a term of years; and neither do I doubt that a judge appointed for life will respect the people less than a judge elected for a term of years. We can escape one evil through appointing our judges for life, but we can only do so by encountering another and a greater evil-greater because there is, and always will be until human nature undergoes a radical change, more danger that permanent power will be exercised oppressively than that temporary power will be exercised with too much indulgence. The vacillating judge excites contempt; the arbitrary judge excites resentment; and as long as the world stands, men who could hope to be judges under any system, will dread contempt more than they will resentment. For that reason, the judge elected for a term of years is less apt to be a coward than the judge appointed for life is to be a tyrant.

Conceding all that I have just said, and admitting that I have not exaggerated the evil of it, many men who have won high places at the Bar contend that, notwithstanding, we can best assure a good judiciary by appointing our judges for life; and in support of that contention they point out what they are pleased to call the superiority of our federal courts over our state courts. That federal judges are superior to state judges, taken as a whole, will not be questioned; but that superiority is, in my judgment, due to circumstances wholly apart from the manner of their selection or the tenure of their office.

In selecting a federal district judge, the President can, as a rule, choose from among a million men, while the trial judges in our states must be selected from a very small fraction of that number; and the larger number from which any choice can be made must always afford the opportunity for making a better choice. Another circumstance to which federal courts owe much of their superiority over state courts, is that a federal judgeship is considered a higher honor than a state judgeship of similar rank. It may mortify our state pride to admit that,

« PreviousContinue »