Tulsa daily world. [volume] (Tulsa, Indian Territory [Okla.]) 1905-1919, 1911-09-19

OF the judiciary llself 10 secret llhti
In the midst Of an atmosphere sur
charged by the reverence II pays IT.
self II demands that the laylty pay
Its homage IN like manner. For my
self / freely confess my inability TO
share this reverence, except In those
individual cases where II Is earned
by actual service rendered And In
such cases the homage for the court
i use the singular advisedly-is law
lshed by the people.
70 Justify tho right OF the judiciary
to thus override tho combined Wis
co-ordinatc-it Is well 10 keep this
word coordinate constantly IN mind
is 10 argue some sort Of superior
ability In that particular branch Of
the government Yet 1t does not eX-
list.
The legislator is Just as able jurist
before going TO the bench as he Is
after donning the judicial ermine.
The cabinet officer is as sound in his
legal advice while a cabinet officer
as he IL after receiving an appoint
ment 10 the bench. Yet we have
cases where both have held one way
in one position, another way In their
judicial capacity. | say the legal adj
vice OF the legislature is as apt to be
constitutlonally sound os the judicial
decision of the Judge. The bench
adds to power not 10 learning, There
fore the judiciary is wholly incapable
Of adding to or taking from the safe
ty Of the Republic and It's aims by eX-
ercislng the veto power When two
thirds Of the total power OF govern
ment has approved measure how
can the remaining third veto it?
The constitution does not even per-
NIT an executive veto to stand in all
cases.
And here l desire to interpolate a
serious thought: If the contention
Of the critic be correct, how can the
worth while through the instrument
tality of either the legislative or eX-
ecutive or both?
ON every judicial decision multiplying
an act of the Congress not only the
bar Of the Nation has been divided,
but the bench itself. Add to this sit
uatiOn the agreement of the other two
departments-the legislative and eX-
ecutive-that the act is constitutional
and what is the logical deduction?
The impression that the legal
school, so ably represented by Judge
Brennan seeks to create, is that this
procedure of the courts has always
been practiced. Such is not the case
Not until 1903 did the Supreme Court
issue its challenge to Congress by de-
claring Legislative enactment un-
constitutional. And then, strangely
enough, it was John Marshall, the
third incumbent of the office, who
wrote not only the epoch making de-
cifon, but the government-making
decision. For its acceptance meant
new and entirely different govern
ment. The same John Marshall who,
a few years before, had laid the ghost
conjured up by Patrick Henry when
the federal constitution was being
debated, in these words:
Congress is empowered to make
exceptions to the appellate juris-
diction, as to law and to fact, of
the Supreme Court. These excep-
tions certainly go as far as the leg
islative may think proper for the
interest and liberty of the people.
-Elliotts Debates, Vol. 3, p. $50.
Yet he went considerable step
beyond this in arguing a case before
the Supreme Court in which others
sought to have declared unconstltu-
tional-the Virginia Sequestraton act
Here are the very words used by
Marshall, the advocate, before he be-
came the Great Chief Justice:
The legislative authority of any
country can only be restrained by
its own municipal constitution;
this is a principle that springs from
the very nature of society, and the
judicial authority can have no
right to question the validity of a
law unless such jurisdiction is ex-
pressly given by the constitution"
The record is full and we are
tempted to quote him once again be-
fore he undergoes the change from
Marshall, the advocate, to Marshall,
the judiciary despot:
II beg to know upon what prin-
ciple it can be contended that any
one department draws from the
constitution greater powers than
another in making out the limits
Of the powers of the several de-
partments?"
Upon what hypothesis can the John
Marshall decision be explained ex-
ceptlng the sometime accepted one
that 'ft is the duty of a good judge
to widen the jurisdiction of his court"
The other departments of govern
ment did not call the Marshall bluff
and it became the law of the land.
| Yet siXty-hve years later Congress
| did call 1t. 1t enacted a law, told the
Supreme Court TO keep its hand off.
and the Supreme Court obeyed with
the greatest alacrity, That will pres
emily be repeated.
Marshall, however, was not alone
in his contentious with respect TO the
functions Of the judiciary prior to his
ascending the bench. He was far
nearer alone when he reversed him
self, declared the supreme power to
be in the judiciary and arrogantly
assumed the right to nullify the acts
of the Legislature. When he was
asking for some one to inform him