very unpopular way, making such rulings that the man charged with the crime escaped conviction. A considerable part of the community believed that the judge's decisions were wrong, and that they argued such corruption or such incompetency that he ought to be removed. So they started out to circulate a recall petition. As you know, every state that has a law providing a recall, safeguards it so that several months must elapse between the filing of the petition and the election. In this case it was necessary to get twenty-five per cent of the voters of the district to sign the petition that a recall election be held. The law also provides that each side shall at the public expense state its reasons why the recall is demanded on the one side, and why the judge should be continued on the other. After that the election is to be held some months in the future. The people in Oregon did not take even the first step, although the case appeared a rather flagrant one. They could not get anywhere near the twenty-five per cent necessary even to submit the question to another election. But, you may say, if a recall would be so seldom exercised, why do you advocate it? For just the reason that if there is the power of recall, if the people feel that they have control over the judge, and the judge feels that he is really the servant and not the master, then you will have a condition which will make the recall unnecessary except in rare instances and at long intervals.

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SUBSTITUTES FOR THE RECALL OF JUDGES1

A

J. HAMPDEN DOUGHERTY

New York City

FTER almost two years of discussion does anything remain to be said in favor of judicial recall? No public question in recent years has received more consideration. It has been the theme of debates, pamphlets, books and resolutions. Practically all the bar associations throughout the country have opposed it. The debate in Congress upon the admission of Arizona with its constitutional provision for judicial recall was so exhaustive as to leave nothing to be said. The speeches of statesmen like Root and Lodge in the Senate, and Pickett, Kinkaid, Legare and others in the House, conclusively showed its fallacy. President Taft's veto message, a great state paper destined to rank high in history, thoroughly shattered the notion. The vote upon the Arizona bill in the Senate and the House would be completely misunderstood were it assumed to represent a preponderant sentiment in favor of judicial recall. Many senators and representatives to whom the idea was repugnant voted for Arizona's admission because they felt that the state itself had the right to determine whether it would instal such an unwise policy or not. A few opponents of the measure believed, as did President Taft, that such a revolutionary doctrine was subversive of republican government.

Judicial recall has been abandoned by some of its most conspicuous advocates and the notion of recall of judicial decisions substituted for it. Thus Colonel Roosevelt who, two years ago, in describing judges as "fossilized minds" asserted that judicial recall might become advisable, now advocates recall of judicial decisions. Two recent critics of our judicial system, Mr. Gilbert E. Roe and Mr. William L. Ransom, differ so radically

Read at the meeting of the Academy of Political Science, October 25, 1912.

that the arguments of one may well be set off against those of the other. In his interesting book entitled Our Fudicial Oligarchy Mr. Roe regards judicial recall as the remedy to prevent the courts from usurping powers which according to him they do not possess. Mr. Ransom, on the other hand, while equally alarmed at what he conceives to be judicial usurpation, invokes the remedy of recall of judicial decisions. No one has more incisively refuted judicial recall than has Mr. Ransom, and no one has better shown the fallacy of the recall of judicial decisions than has Mr. Roe.

Of judicial recall Mr. Ransom says:

If a judge incorrectly gauges "the preponderant opinion" as to the social necessity for a particular law, why remove him? Why not let the people vote directly to decide what the majority opinion is? If a judge is dishonest, impeach him; if he is incompetent, remove him by complaint before the legislature or refuse him re-election, but it does not seem quite fair to require him to take the final guess as to what the "prevailing morality" and the "preponderant opinion" of a state really is, and then chop off his judicial head if he “guesses or "calculates" wrong.

For Mr. Ransom's specific Mr. Roe, on the contrary, has the scantest respect. He says:

The recall of judges is to be carefully distinguished from another idea, which is supported by some men of prominence, and which has come to be described as the "recall of judicial decisions." The former may be applied without materially departing from our constitutional form of government; the latter is absolutely destructive of the constitution. The recall of judges merely means that where a judge has shown from any cause that he is not discharging the functions of the judicial office in fundamental and important matters as the people desire, he will be discharged and a new judge possessing the necessary technical qualifications selected in his place. The recall of judicial decisions means that the wholly untrained layman shall undertake to do, personally, the highly specialized and technical work of a judge. The great vice in this idea, however, is that it would be used as a means of amending the constitution by a majority vote. It would soon come about that laws would be passed, simply for the purpose of having them declared unconstitutional, and then by a popular vote overturning the de

cision of the court, and in that respect amend the constitution. The constitution, therefore, would be immediately reduced to the level of a statute, since any portion of it could be amended, or repealed, at any time by a mere majority of the popular vote. While there is little likelihood of this idea finding a permanent place in the minds of the people, that anyone should be found who seriously advocates this idea is significant of the extent to which the dissatisfaction with the courts has gore and ought to show the necessity of reforming the courts, along linesless revolutionary.

Mr. Ransom has Colonel Roosevelt on his side. Colonel Roosevelt has written an introduction to Mr. Ransom's book in which he declares that the people ought to have the power to decide for themselves in the last resort what legislation is necessary in exercising the "police" powers, or "general-welfare” powers, so as to give expression to the general morality and the general or common opinion of what is right and proper, and he is careful to say that he is advocating a system which "will obviate the need of such a drastic measure as the recall." What Colonel Roosevelt seems to overlook is that the people to-day enjoy ample power to change their constitutions so as to secure whatever legislation they may desire in the interest of the public welfare.

Thus those who think judges usurpers and oligarchs are divided into two hostile bands. One would introduce judicial recall as the remedy, the other would have the people recall the judicial decision by popular vote, and each stigmatizes the other's panacea as in the last degree dangerous and unwise.

Surely after all the discussion upon this subject, argument can hardly be needed to show the unwisdom of judicial recall. As I view it, the proposal is based upon two fallacies:

First, it is declared that the judiciary has transcended its functions in passing upon the constitutionality of legislation, and that the judiciary is the undemocratic and unprogressive branch of the government. These things are asserted as to the judiciary not only of the nation but of the several states; yet in the majority of the states the judges of the higher courts are elected by popular vote, and, in many instances for short terms.

Second, it is held that the courts, instead of attempting

to follow the constitution which they have sworn to support and to which every statute should conform, ought, on the contrary, to ophold a law in conflict with the constitution, if that law expresses the popular will, thus substituting the popular will, or as it has been called, the "manifest and express will of the people" for the constitution as their guide in certain classes of cases-this class being cases affecting the social conditions of the whole or a part of the community. According to this view, it is not the constitution but the so-called "popular will" that should be regarded as the law of the land.

As I read history the courts have not usurped the power to declare legislation unconstitutional. To say that the judiciary is the unprogressive branch of the government is merely another way of saying that it is the business of the judges not to make law but to declare it, and in this sense the judiciary is the most conservative branch of the government. The courts say what the law is, not what they think it should be, and as constitutions are in theory at least easily amendable, the law can readily be so modified by amendment as to express the most enlightened public sentiment. The public will is presumably expressed in the constitution. The constitution must remain the supreme law until the people see fit to change it, and certainly in the states the power of amendment of the constitution is easily available. In New York state the constitution is, if anything, too readily amendable. The constitution thus represents the "popular will" for the time being, and to attempt to substitute something else as an expression of the popular will by an unconstitutional method is in reality to subvert the popular will.

Even granting all the charges that of late have been made. against the courts—and I am personally willing to concede that in some instances the courts have seemed arbitrary aud unjust and judges have been selected as a result of improper influences -I maintain that recall is not the remedy for any error in a judicial decision.

The recall would undermine judicial independence. After all that has been said in Congress and elsewhere it is unnecessary to show that a system which makes the judge liable to