ment of politocrats than by the electorate at large. It is highly improbable that the electorate would find it necessary or advisable to use either mode of recall. The presence of either mode would, therefore, furnish a means whereby an influence of the politocrats upon the judiciary could be continuously maintained.

It is, however, a grave mistake to suppose that judges exercise their judicial power in a distasteful and arbitrary manner merely because they hold for life or during good behavior. An arbitrary or disagreeable course of action by a judge arises principally from the fact that he is subject to no authority which can receive complaints against him and act upon those complaints by way of private or public criticism and correction of the judge. The best protection against arbitrary and disagreeable actions by judges is a duly constituted body of fellow judges who hold a position of superior power and authority and to whom complaints as to the conduct of judges may be brought and who may investigate those complaints and exercise a corrective influence. When a considerable number of judges in a metropolitan district are provided with a chief justice and organized for the efficient handling of a great volume of business, the means of securing the exercise of a corrective influence over their conduct at once appears. Such a court must be organized into divisions for the purpose of handling specialized classes of litigation. In a metropolitan district like Chicago there should be an appellate division with from six to nine judges sitting in groups of three, a chancery division of six judges with a corps of masters, a probate and family relations division with at least four judges and a corps of masters and assistants, a common law division with fifteen to eighteen judges and a corps of masters, a municipal-court division with thirty-three judges. The chief justice should be the presiding justice of the appellate division and each of the other divisions should have a presiding justice with large powers over the way in which the work of each division is handled. The chief justice and the presiding justices of divisions should form a judicial council or executive committee, with considerable powers over the way the court as a whole was run. To such a judicial council there should be committed the power to remove from office any judge, other than the chief justice, and to reprove, either privately or publicly, or transfer any such judge to some other division of the court for inefficiency, incompetency, neglect of duty, lack of judicial temperament, or conduct unbecoming a gentleman

and a judge, for the good of the service, or to promote its efficiency. The power of removal by the council should only be exercised where written charges had been filed and after an opportunity has been given to the judge to be heard in his own defense.

The existence of a judicial council composed of the chief justice and the presiding justices of the different divisions of the court, each one responsible for the way in which the work of his division is handled, suggests also a practicable way in which to stimulate efficiency at the bar, provide a service test for candidates for places on the bench, and subject the appointing power of the chief justice to a slight but reasonable control. The judicial council should be given power to appoint upon an eligible list for each division of the court twice as many members of the bar as there are judges in the division. The chief justice in appointing judges to a place in any division of the court should be required to select from this eligible list on the occasion of every other appointment at least. The operation of such a plan would be to place in the hands of the presiding judges of divisions an express authority to suggest what members of the bar practicing before their divisions respectively would make satisfactory judges for each division. It would also operate to stimulate the efforts of lawyers and promote competition to secure places upon such eligible lists by specialization in practice before particular divisions. This would develop an expertness in the handling of litigation which does not now exist on the part of any considerable number of the bar.

We may then conclude that in a metropolitan district with a hundred thousand electors and upward judges cannot be elected. They must be appointed. If an election is attempted it is a failure and appointment results. The worst method of appointment is the secret and irresponsible appointment by politocrats. The most promising is the conspicuous and legal appointment by a chief justice elected at large in the district at frequent intervals. Every objection to such a plan and every prejudice against it may be met by provisions for the retirement of the chief justice and his appointees by impeachment, by legislative and popular recalls and by the power of the judicial council to discipline and remove any judge other than the chief justice. It is even possible under such a plan to promote efficiency by securing an eligible list of men whose experience in practice under the eyes of the judges insures excellence in appointment.

THE RECALL OF DECISIONS

BY MOORFIELD STOREY,

Boston, Mass.

The United States and each state in the Union is governed by a written constitution, which limits the powers of the officers who conduct the government and defines the rights of the citizen. The Constitution of the United States also draws the line between the powers of the federal government and the powers of the several states. It is inevitable that questions should arise between state and nation, between the states and their citizens, and between individuals as to the construction of these constitutions, and some man or body of men must decide these questions or our system breaks down. Hitherto they have been decided by the courts, but it is now proposed that from their decisions an appeal should be taken to the people. Is this a reasonable proposal?

It will be conceded generally that the law which controls us all should be certain so that every man can rely on it and govern himself accordingly; that courts should be no respecters of persons but should treat rich and poor, popular and unpopular alike, and that in order to secure such courts the judges should be wise, upright, courageous and impartial. No lover of justice can dispute any of these propositions.

It must also be remembered that constitutions are laws adopted by the people as a whole to define the power of their rulers and to protect and secure the rights of minorities and individuals. Power can always guard itself and needs no protection, whether it rests on tradition, on military force, or on mere numbers. It is the weak and not the strong, the few and not the many who are in danger. The successive victories of liberty in the long contest against tyranny have always resulted in securing for the citizen some constitutional safeguard like Magna Charta, the Act of Settlement, the various provisions which are found in all our written constitutions, or the amendments adopted after the Civil War. The words which secure religious liberty, the right of petition, or the freedom of the press are not necessary to protect the man who agrees with the majority

of his neighbors, but him who disagrees-him who is a Catholic in a Protestant country, him who would petition for the abolition of slavery when its friends control the government, him who would preach some doctrine which the majority disapproves. As Mr. Hornblower has put it, "Civilization consists in subordinating the wishes of the majority to the rights of the minority." The protection which our constitutions give to the life, liberty and property of every citizen is a protection against abuse by the officers chosen by a majority of his fellow-citizens, and there are few of us, whether laborers or capitalists, who would feel safe were these constitutional safeguards taken from us. In a word a constitution is a law adopted by the people to protect each citizen against oppression by a majority of the people themselves or by the officers which this majority chooses. This is its main purpose.

These propositions are fundamental, and unless we would do away with constitutions altogether and make the majority of the moment omnipotent in dealing with our lives and property, any discussion must proceed upon this basis.

The recall of decisions may be limited to those decisions which involve a construction of the constitution, or it may include those which lay down a legal rule that concerns the public generally, or it may extend to all decisions. If the principle is once established, no one can say to what class of decisions it will not be extended. Its more intelligent advocates insist that it will be used only to amend state constitutions by reversing decisions which hold particular statutes inconsistent with such constitutions, but they cannot control the movement thus inaugurated. It is easy to set a fire which the incendiary cannot extinguish.

Why should we adopt this new political nostrum? We have gone on for a century and a third under the existing system. It has carried us safely through the formative period when the government was young, through periods of financial disaster, through the great Civil War and the critical days of reconstruction, through fair weather and foul in a way which has excited the admiration of mankind, and we have all been proud of it as the most successful instance of self-government on a great scale and under most diverse conditions in the history of mankind. Why should we change? What is the ground of complaint? If our opponents are driven to precise statement it will be found that the system as a rule has worked to the

entire satisfaction of the people, but that in a few states and in a few cases courts have made decisions which are not palatable to these advocates of change. This may be admitted, for all men are fallible, and under any system it is impossible to satisfy everybody. But shall we for a few mistakes destroy a system which as a rule works well?

Let us go a little further. The recall of decisions, at first limited by its author to the recall of decisions made by state judges in construing state constitutions, has now been given a wider scope and is advocated by its friends on the ground that all courts defeat the will of the people when they declare an act unconstitutional, and that it is dangerous to give a few men so great a power. These critics work themselves into a frenzy over the danger to free institutions arising from the courts, and as one writer expresses it:

If we the American people are not willing to let the federal judiciary prove to be our Frankenstein monster, uncontrollable and destructive, we must uphold and act upon the doctrine of Thomas Jefferson, the great American whose democracy was pure and undefiled. He wrote to Jarvis: "It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. The constitution has erected no such single It has made all the departments co-equal and co-sov

tribunal.

ereign with themselves."

This may seem like a convincing statement to some, but let us analyze it and see if there is really danger that the federal judiciary will prove "a Frankenstein monster, uncontrollable and destructive."

No one will doubt that a constitution, in every case which we need consider, imposes some limits on the powers of the legislature and the executive. There are some things which neither can do. For example the legislature cannot interfere with the freedom of religious worship, and the governor cannot order a man killed without a trial. When we approach the border line questions arise which it may be difficult to decide. If we concede that the legislature may determine for itself all questions as to its own power, and that the passage of an act is a decision that it has the power to pass it, there ceases to be any limitation on the legislative power. If the governor may insist that he has power to do whatever he chooses to do, and that no one can question it, the constitutional limits on his power lose all their force. These propositions admit of no dispute. There is no alternative save the decision of such questions by the court.