New-York tribune., 1905-06-27

We nuIish in another column this morning
q letter on the Hooker case, or, rather the
procedure incident to It, from Mr.. Charles H.
Young q well known attorney and counsellor
at law Of this city. Mr.. Young is anxious that
legislators shall uphold the constitution rather
than fellow the baying Of the wolves" and
thinks that "the constitution is a greater safe
guard than malicious newspaper attack" which,
being interpreted. means that Mr.. Young can
find no warrant In the constitution for the re-
rnoyal of a Judge for other than imPeachabla
misconduct, end holds that removal by two
thirds vote Of the legislature is provided only
for cases Of insanity. Therefore, the news
papers which take a different view of the con-
stitutien are malicious
Mr. Young is anxious to follow the old land
marks" but for lawyer supposedly expert in
tracing them he seems to have great difficulty.
We supposed that Chancellor Kent was still
landmark for New-York lawyers. Mr.. Young
saws 1.-The two-thirds removal clause first ap-
peared In the constitution OF 1894" and was
framed by Mr.. Louis Marshall and explained
by Mr.. Elihu Root means OF Kidding the
State of mentally afflicted Judges. The clause
was In 1884 amended to promote the removal
of insane judges, TO whom it did not perfectly
apply before. But If Mr.. Young will look back
of Mr Louis Marshall and Mr. Elhu Root
some eighty years he will see the figures Of
thirds clause applying to general unfitness.
It may be unconstitutional for the consdtu-
tion 10 have at Mr.. Young calls two meth
DDS of impeachment" but the constitution OF
1921 so provided, and the legislators and their
advisers who are banking on what they think
the innovation Of 1894 an excuse for re-
sisting the :baying of the wolves had better
read little history Article 1, Section 18 Of the
constitution of 1921 read:
All officers holding their offices during good
behavior NAV be removed by joint resolution of
the two houses Of the legislature, II two-thirds
of all the members elected to the Assembly and
a majority Of ell the members elected TO the
Senate concur therein.
Justices of the Supreme Court then held their
Offices during good behavior. This constitu-
ton also provided for removal Of judges by
impeachment. The constitution Of 1s46 con-
tinued the provision for removal by two-thirds
OF the Assembly and a majority of the Senate.
! but added a prohibition against removal unless
the cause had been entered on the journals and
! unless the party complained Of shall have been
served with a copy Of the complaint against
| 'him and shall have had an opportunity OF
'being heard in his defence" We have already
| told how in the convention OF 1S46 II was pro-
| posed to make this removal apply only to cause
occurring after election, and how Charles OCon-
or opposed and defeated this for the reason
that removal might be necessary for gross I'M
morality on the part of judge who could not
| be impeached or displaced on grounds of in
ability to perform his duties. This clause OF
| the constitution was amended in 1869 to re-
! quire two-thirds of both houses, instead OF a
mere majority in the Senate, for removal Ih1s
remained the fundamental law until 1895. The
| only change made in the new constitution, not
purely verbal and merely a matter OF style,
was the substitution of the phrase mo officer
| ..ohoJ ba ramoyad unless he shall have
been served with statement Of the cause al
legged" for the words, unless the party COM
"plalned of shall have been served with copy
"of the charges against him." The obvious
| purpose was 70 make certain the right TO re-
| move "for cause which might not involve a
| charge" An insane person, for instance,
might not be complained Of, and yet GOOD
cause might be alleged for his removal In
that sense it is doubtless true that the Consu-
tutionaI Convention of 1884 was intent merely
on the removal OF insane judges. but that was
only because former conventions had ATTENDED,
to removal for other causes.
The offences alleged against Justice HOOKER
are no new ground for removal Tney Woulu
have been constitutonally sufficient at any
time since 1871 Instead OF following the lana-
marks Mr. Young s chasing strange soos'
while those whom he criticises are standing ps
ancient institutions shaped for US by men emil
nent In law and craftsmanship. His panic OF
fear lest the power Of removal might be usea
against judge for violating city ordinance
is nothing but an Indictment OF democracy ID
general. Any power may be abused II the peo-
pIe will tolerate It But no such ABSURD re-
moval could be made without the peoples re
briSing II and re-electfng the wrongruly ue-
nosed iudge A legislature which would dare
TO remove a Judge for the crime OF throwing
ashes in the street would not hesitate to I'M
peach him. Sane men VIII not be scared from