Evening star. [volume] (Washington, D.C.) 1854-1972, 1912-02-24
DANGER OF RECALL
Associate Justice Stafford
Sounds Note of Warning.
WOULD ABOLISH FREEDOM
Jurist Tells New York Lawyers It
Would Deal Deadly Blow.
PEOPLE SHOULD REJECT IT
Public Not Ready to Throw Away
Fruits of Long Labors and I'm
numbered Battles, He Adds.
WOULD ABOLISH FREEDOM
PEOPLE SHOULD REJECT IT

Former President Roosevelt's reference
to the plan for the recall of judges, in
the course Of his speech at Columbus,
Ohio. the other day, adds interest to the
discussion on this subject. One of the
latest expressions from a member of a
court on this topic was an address de-
livered before the New York County
Lawyers Association at it's annual BAN
quet February! II, by Associate Justice
Stafford of the Supreme Court of the Dis
trict Of Columbia. Justice Stafford said,
in part:
I'VE have built our institutions on the
proposition that the people have a right
to rule. Their will is made known through
the suffrage. And when opinions differ,
as they usually do, the majority must
govern. But that is not the whole of
the proposition. If it were there would be
no safeguard whatever for the rights
of the minority. The majority might
appropriate their property. 1t might re-
duce them to slavery 1t might even take
away their lives. The proposition takes
! for granted. then. certain guarantees for
the protection of the minority. And what
are these? They are those elementary
rights which no majority, however large,
may ever violate. They have been recog-
nized in constitutions and bills of rights,
but they were not created by them. They
inhere in free government itself, for hui
man freedom is impossible without them.
Among these rights there is none more
important than this. that no citizen shall
be deprived of his liberty or property eX-
cept by the judgment Of the law. and
after trial before an Independent and
impartial tribunal. We have now come to
the keystone of the arch. 1t is this The
majority of the legal voters cannot con-
stitute itself this tribunal.
IF it can it still holds the property and
lives of the minority in it's hands, sub
ject to its mere will and pleasure. for
there is no one who can call it to ac-
count.
''The cases that may come before the
between individuals merely. Second,
those in which one of the parties is. in
fact if not in name, the people them
selves, or the popular majority. BY far
the most important and most trying cases
will be those of the second class, in which
it is contended that some fundamental
right of the individual or the minority
is being violated. The violation will be
attempted under the form Of law, and
thus the real party upon one side is the
people, or the popular majority. whose
will has here found expression i'm the
form of law. In such cases how is the
independence and impartiality of the tri-
bunal to be secured? How except by re-
moving it as far as possible from dicta-
ton by either party? Let it be remem-
bered that the tribunal, the court, has
been created and its members chosen by
one of the parties to the controversy
namely, the people. Clearly, then. the
only security the other party can have is
this: That the tribunal. once it is created
and its members chosen shall be permit
ted to decide without further interior
ence. If it is to be checked and over
awed by one of the parties: if the mo
ment it decides the case against that
party it's power is to be taken from it
and bestowed upon others, then it is
the party that decides the case, not the
tribunal.
Sets Forth an Example.
''Let us inquire whether this reasoning
fits the facts of the present time. Take
but one example. A popular majority,
through the legislature elected by it, or
more directly by the initiative and refer
endum, enacts statute requiring rail-
roads to carry passengers for one cent a
mile. A test case comes before the court.
The railroad insists that the act robs it
of its property, and the court so holds.
ThereupOn the same popular majority
votes the judges out of Office, and elects
to fill their places judges who will reverse
the decision. Has not the popular ma
jority constituted itself the court? May
a man be the judge in his own case?
Let US test the measure by another
fundamental principle. A despot makes
the law and also decides whether the par
ticular case comes within the law. Or
he may just as well dispense with the
law, since no one can question his deci-
sion that the case comes within it. On
the other hand, in a free government one
body makes the law, the general rule,
while another body decides whether the
particular case falls within the rule.
~ b. nSA{ 81, xn6 Is -
keeping the legislative and judicial de-
partments separate. In despotism they
are united. In a free government they
are separate. Now If the popular ma
jority not only makes the law but also
decides whether given case falls within
it, then the legislative and judicial pow
ers are united in the same body and the
government ceases to be free and be-
comes a despotism.
IF 1t be objected that the argument
proves too much, since by this reasoning
the rule should be. once judge always
judge, my answer is twofold. First. 1 hold
with Hamilton that the judicial tenure
ought to be nothing less than during good
behavior. Second, If the judges are to be
elected for limited terms, those terms
should be at least of such q length that
the judges reelection should not depend
upon his decision of some particular case
or question, but upon his general worth
mess to be a judge.
'srhe argument for the recall assumes
that judges are only agents of the ma
jority. and easily reaches the conclusion
that when the agent fails to satisfy his
principal he may rightly be recalled. The
fallacy in the argument is in the assump-
ton that the judge is an agent. He is
not an agent in any proper sense of that
word He is not the agent of either party
to cause. He is not even the agent of
both parties. If his duty were to trade
and compromise between them he might
be considered the agent of both. But that
is not his duty. His duty is to decide. 1t
is not for him to please, nor to seek to
nlease either party. 1t is for him to de-