The times. [volume] (Richmond, Va.) 1890-1903, 1902-05-17
SUPREME COURT
BADLY Handicap
Sickness Of Justice Gray Brings
Things 10 StandstiII.
A VERY SERIOUS SITUATION
There is No Power to Retire Justiosr
and Yet There Is No Telling When
He VIII See Fit to Retire Of
His Own Accod.
Especial Dispatch to The rlneso

Especial Dispatch to The Times)
WASHINGTON, May la very seri-
GUS and somewhat complicated state OF
a:E:aIs affecting tha s;uprem Court on as
count OF the Illness OF Justice Gray Thera
are some very important cases pending
before that tribunal-so serious, In fact,
that the court has ordered them to be
tried before a full bench-the hearing
OF which Is postponed on account Of
Justice Gray's being unable to sit. This
means that these cases cannot be gone
on with until tha indisposed member of
the court gets we'll or retires or dies.
The embarrassing part of 1t is that
there is practically no hope that Judge
Gray will ever recover his health suf-
fciently to sit on the bench again, and
no shows no disposition TO retire. His
malady is of such nature that he may
live for years. although he will always
be in i'll health.
To the average person it would seem
easy TO prevent this retardng of the
work OF the most dignified body of tho
United States Government by the in
durable and incapacitatins illness Of one
OF its member. by simply retiring
him regardless of his own wishes On
III. subject AS q u.attsr OF f;lcL there
IS no way IN which Judge Gray can be
retired. He Is the only ono who can de-
eide that he is incapacitated for further
service, his position in this regard being
similar to that of the President. who
alone can pass upon his own capacity or
incapacity to perform the duties of his
office. And as it usually happens
when official is the judge of his own
powers. 1t is really impossible for him to
judge correctly. The popularity of the
present situation will be readily under
OF L,vf r. nc .-rS,f- L.
bitterly man fights against taking off
the harness when by doing SO he has to
confess that his powers are failing.
The only way in which a justice of
the Supreme Court can be forcibly re-
tired is by impea chment. ana in this
particular case there is no possible
chance of such means being employed as
the life of this distinguished justice has
been stainless. His record on the bench
is perfect. His high education, his legal
learning, his fairness and judicial tenn
permanent have given him high repu-
ia ton as that of any American jurist of
his day.
COMPLICATED QUESTION.
It would seem. at first blush. that pro-
vision should have been made in the Con-
stitution for the retirement Of a Justice
of the Supreme Court. who was not able
to perform his duties. but showed no dis
position to retire. but If there were such
a provision it would. perhaps. be an in
reference with the independence of the
judiciary. the most necessary preroga-
tive of that body. An unscrupulouS and
scheming president might use such
power-for in his hands this power. If it
existed, would probably have been placed
to dispose of any Justice OF the SUI
prems Court who did not agree with his
views and put In his place one of his
political allies who would act according
to his wishes. And if he could remove
one in this way ne could remove several
and so create a Supreme Court TO suit
himself And yet. if a specified age were
fixed for the retirement of the judges, it
would very often lose to the bench men
who were best prepared to do the i'm
portant work Of that body.
Senators Pettls and Morgan, of Ala
hama, are examples of this. Senator
Morgan is seventy-eight years of age
and Senator Pettus is eighty-one. and
vet there are no two clearer, more alert
and powerful minds in the United States
Senate than those of the Senators from
Alabama. Both are great lawyers. whose
intellects are as clear as when they both
served as brigadier- generals in the Con-
federate army nearly forty years ago. |
and whose judgment and knowledge
have been ripened by broad expert
ence
The case presented by Justice Cray is
one for which there seems no remedy. |
He may be inca pactated for months or
even years. and yet, II he chooses. sit
on the bench. The only reason he does
not retire is that he feels that sooner or
later he will be able to return to the
work which he has performed so ably
for twenty years.
Justice Gray is native Of Boston.
Mass. and was commissioned by Presi-
dent Arthur Decent Der Is. 1881
I
OF the three cases that have been or
dered for hearing before the fun bench |
the most important is that OF the Terri /
tory of Hawaii against Osaka Ma nkichi !
The case is appeal by the Territory
of Hawaii from an order of the United |
States District Court for the Territory
discharging Osaka Mankichi from fur /
Their Imprisonment under a conviction
for mansIaughter. The question nvolv- |
ed is a constitutional one. and is /
whether. after the adoption of the res
olution of annexation. of July 7th. 1888 /
and prior to the establishment OF the |
territorial government of June 18th, I'M |
der the act OF April Goth. 1900. organizing :,
the territory, the fifth and sixth amend
ments to the Constitution were In force
5 in Hawaii, so as to render void all m |
dictmen1s. trials and convictions IN
criminal uses under the municipal laws
of the Republic OF Hawaii. which. under |
the express provisions OF the resolution I
OF annexation. remained In force until
Congress should establish territorial |
government there
e1,~ Hdr tHnl YYn .JJ . III