Evening journal., 1913-07-05
JUDGE SAYS
ROOSEVELT ERRS
George Gray DenOunCeS Recall
Of Judicial Decisions Be-
fore Lawyer

CAPE MAY, July 5-Judge George
Gray, of the United States Circuit
Court of Appeals in Philadelphia. rid
.dler ex-President Theodore Roose-
velt's idea of a recall of judicial deci-
sions in an address before the Mary
land State Bar Association here on
Thursday. While the name of Mr.
Roosevelt was not mentioned, save by
the inference as "an overzealous re-
former" his political programme re-
.ceived considerable attention upon
the part of the speaker, who vigorous
ly defended the courts in an hours
discussion of The Democracy of the
Constitution"
An application Of the Roosevelt
method. Judge Gray asserted. would
place our Government in a state Of
chaos and decentralization. He called
il a propaganda of anarchy"
No part of Judge Gray's address
attracted more attention than his de-
nial of the oft-repeated declaration
that the courts placed the rights Of
property above the rights of men.
Thei is, he said, no such thing as
rights of property apart from the
rights of man, the vice and fallacy
of the phrase consisting in sugges-
tion that property as a distinct entity
may have rights antagonistic to the
rights of man.
In discussing the proposal to leave
judicial findings to popular review,
Judge Gray briefly described the
limitations of the three branches of
Government. then ironically said:
D - he frl
pacity of the people for self-govern-
ment, which means self-restraint, If
these constitutional limitations are
binding only TO such an extent and in
favor C such persons as the majority
of voters may choose"
This evident fling at Colonel Roose-
welt was followed by this utterance:
"And yet, if l understand the move
ment we have been considering its
promoters propose no less than that
these guarantees Of personal liberty
which are now part Of the law of the
land, capable Of being enforced like all
other laws, and as such inviolable
shall have removed from them the
sanction of judicial enforcement, and
while life. as rhetorical phrases, to
adorn the sacred page of our written
Constitution, are only to be operative
by the sufferance Of casual majority
as ascertained in a popular vote. a
vote which more often than not, would
be. largely characterized, if not by ig-
norance, yet by the indifference of the
electors.
I'VE have all had some experience in
/ Il
where a referendum Of some sort has
been made. Where. for reasons to
which I have referred, the decision 10
be affirmed or reversed does not ex-
cite the popular interest. it might we'll
happen that the recall would be made
by the majority OF a total vote, which
itself is less than the total registered
vote of the state, and thus the absur-
dity would be accomplished. by 4 mere
fraction Of the people, less than a ma
jority ,negativing the popular will evil
denced by the contented silence and
acquiescence Of the larger number"
Not Belittling Citizens.
Judge Gray said he was not de-
crying the general intelligence OF
the people or their sincere desire TO
regulate their conduct by the prin-
oiples OF Justice, but that history
teaches that this justice can only be
accomplished through the instrument
tality Of a constitutional democ-
racy.
Judge Gray summarized his con-
clusions as follows:
I'VE are not capable, and we and
no other people ever will be capa-
BILE OF satisfactorily performing ju-
dieiai functions en- masse. or OF sue
eessfuiiy administering any OF the
functions Of government, legislative
or judicial. except through represen-
tatives chosen, as far as may be, for
their aptitude for the service"
The speaker said he found II In
eumbent TO challenge the wisdom, II
not the sincerity. OF those who would
persuade the people that we can have
no real democracy unless there
should be a withdrawal Of the pro,
tsstioH hitherto assured by process
lAt Law. TAis he characterized as ~