RECALL OF JUDGES.
“Of all the virtues, Justice is the best,
Valour without it is a common pest.
...
All other virtues dwell but in the blood,
That in the soul, and gives the name of good;
Justice, the queen of virtues.”—Waller.
Judge is the generic descriptive name given to one who is invested with
the power of judging and deciding causes in the courts of law. The
recall, as applied to the judiciary, is the withdrawal of the power given
a judge to decide causes.
As justice has always been the great interest of man, on earth, we find
that the virtue has ever been extolled, as one of the greatest blessings
of the human race and among the earliest institutions of which we have
any knowledge, we find that courts were constituted, for the distribution
or enforcement of justice, through the medium of judges.[1]
The great law-giver, Moses, having learned the hard lesson from the
book of human life, early grasped the truth that man’s nature needed
protection from its own impulses and passions, and that an exalted
rule of conduct, commanding what was right, to be effective, must be
enforced and interpreted, by a wholly disinterested guiding influence. He
accordingly established the administration of justice, among the ancient
Israelites, by choosing “able men, out of Israel, such as feared God,
men of truth, hating covetousness; and made them heads over the people,
rulers of thousands, rulers of hundreds, rulers of fifties, and rulers
of tens; and they judged the people at all seasons; the hard causes they
brought unto Moses, but every small matter they judged themselves.”[2]
Grasping, even at this early day at the exalted standard, later realized,
in the Horatian ideal, “of the just man, who, firm in the consciousness
of right, disdains, with equanimity, the frowns of a tyrant and the
clamors of a mob,” we find this old patriarch, fifteen centuries before
Christ, admonishing the judges of the Israelites:
“Thou shalt not follow a multitude to do evil; neither shalt
thou speak in a cause, to decline, after many, to wrest
judgment.”[3]
Admonishing the judges, further, in regard to being swayed in their
decisions, by the fickle winds of public sentiment, Moses said:
“Ye shall not respect persons in judgment, but ye shall hear
the small as well as the great; _ye shall not be afraid of the
face of man_; for the judgment is God’s; and the cause that is
too hard for you, bring it unto me and I will hear it.”[4]
And not content with warning the judges of the danger of fearing the
people, in the act of pronouncing judgment, he also warned the people of
the duty of respecting the judgments of the courts, in the following wise
commands:
“And thou shalt come unto the Priests and Levites, and unto
the Judge that shall be in those days and inquire; and they
shall shew thee the sentence of judgment. And thou shalt do
according to the sentence, which they of that place which the
Lord shall choose, shall shew thee; and thou shalt observe to
do according to all that they inform thee. According to the
sentence of the law which they shall teach thee, and according
to the judgment which they shall tell thee, thou shalt do;
thou shalt not decline from the sentence which they shall shew
thee to the right hand, nor to the left. And the man that will
do presumptuously, and will not hearken unto the priest that
standeth to minister there, before the Lord thy God, _or unto
the Judge_, even that man shall die and thou shalt put away the
evil from Israel. And all the people shall hear and fear, and
do no more presumptuously.”[5]
It thus appears that the ancient Israelites appreciated the virtue known
as Justice and more nearly approximated the cultivated ideal existing
in more recent times, for they understood, or Moses did, that it was
indispensable, in the act of dispensing justice, for the incumbent of the
judgment seat, to rise superior to the popular standards of justice and
equality and that the due and orderly realization of the virtue could
only be realized by a proper regard and respect for the judgments of the
courts when they were pronounced.
In this respect, the old patriarchs were in advance of the ancient
Babylonians and Athenians, for while attempting the distribution of
justice, through the medium of disinterested judges, they did not seem to
grasp the necessity for an independent judiciary, but upon unjust grounds
they permitted the recall and debasement of their wisest judges.
In the oldest Code of Laws in the known world, the code of Hammurabi,
King of Babylon, 2285 B. C.,[6] who claimed to have received his laws
from the seated sun-god, Samas, the “judge of heaven and earth;”—an old,
Mosaic bearded king, as represented to us, from the dark ages, upon
the black block of diorite, presenting also his Code of Laws; known to
history as the Babylonian king, who conquered the four quarters of the
earth; who enriched Ur (Father Abraham’s birthplace), the humble, the
reverent, who clothed the gravestones of Malkat with green; the warrior
who guarded Larsa and renewed Ebabbar; the Shield of the land who united
the scattered inhabitants of Isin; who firmly founded the farm of Kish;
the White Potent one who penetrated the secret cave of the bandits; one
who recognizes the Right and who Rules by Law; who humbles himself before
the great gods[7]—this valiant one of the misty ages of long ago, in his
Code, after providing for the death of the man who should weave a spell
or put a ban upon another man, in the fifth section of his Code of Laws,
provided for the recall or removal of the judges of his courts, by the
following provision:
“If a judge has judged a judgment, decided a decision, granted
a sealed sentence, and afterwards has altered his judgment,
that judge, for the alteration of the judgment that he judged,
one shall put him to account and he shall pay twelve-fold the
penalty, which was in the said judgment, and in the assembly
one shall expel him from his judgment seat, and he shall not
return, and with the judges at a judgment he shall not take his
seat.”[8]
Petitions and motions for a rehearing were thus interdicted by Hammurabi,
regardless of the mistakes entering into the judgment, which could only
be righted by a rehearing, or a new trial, and if a new trial were
granted, the judge was publicly disgraced and recalled and was never
allowed to sit in judgment again.
So unalterably opposed were the ancient Babylonians to the granting of
a new trial, that if a decision for the infliction of a penalty were
set aside, the judge had to pay it twelve-fold to him from whom it was
exacted and for any new trial granted by him, the judge was publicly
deposed from his office and expelled from his seat of judgment and no
longer permitted to sit with the judges. According to the strict letter
of the Code, it was no justification for the judge to be able to show
that the new trial was granted to prevent a miscarriage of justice, for
as the law reads, a judgment once pronounced was irrevocable, for that
judge, at least.[9]
But let us look more minutely into the procedure, governing the right of
litigants in the days of Hammurabi. It was the prerogative of the King,
during the First Dynasty, to send to the local judges his own decision of
a cause, or to simply send the case to them for trial.
Trials were held in the great temple of Ebabbarim, at Sippara, where
copies of his code had been set up by Hammurabi, at the temple of
Merodach in Babylon, at the temple of Sin, at Larsa, or the temple of
Ishhara. Witnesses, it seems, were sworn, before God and the King, to
swear to the truth, touching the controversy, and documentary evidence
was used, much as it is today, to establish a right or title by written
evidence, or the agreement of the parties.[10] Having ascertained where
the right resided, it was the peculiar province of the judge to “cause
them to receive judgment”; the strife was accordingly quieted and the
judgment passed into an irrevocable decree, which the judge himself
could not set aside, without thereby working his own disgrace and
recall.[11] The decision was drawn up by the scribe and placed upon a
tablet, sealed by the judge and some of these irrevocable tablets, as
imperishable conclusions of these ancient law-suits have come to us,
after thousands of years, to tell their tale.[12]
This recipient of the wisdom of the sun-god, Hammurabi, did not stop
with humiliating and degrading the upright judge, who, to right a wrong
judgment was willing to admit his error to the advantage of a wronged
litigant, by granting a new trial, but in keeping with such a mistaken
standard, the Code of this ancient ruler of the Babylonians also punished
the unsuccessful surgeon, by removing the hand that performed an
unsuccessful operation;[13] by penalizing the unsuccessful veterinarian,
who lost his neighbor’s cattle or horse;[14] the builder was made liable
for all damages resulting from the fall of a building he had erected[15]
and, in general, it was the policy of this strict king, to raise the
standards of public duty, by punishing the incumbents of public office
and penalizing the members of the learned professions and vocations,
rather than cultivating the higher standards of the professions, by the
elimination of the unskilled therefrom.
The ancient Greeks also practiced the recall and ostracism of their most
eminent judges and other powerful public officials, who incurred the
ill-will of the populace, because of some unpopular decision, or the
envy of any considerable number of citizens, because of some alleged
undemocratic performance.
This ostracism, or recall, in Greece, is said to have been established by
Cleisthenes after the expulsion of the Peisistratidae[16] and the nature
and object of the recall, as then obtaining, is thus explained by the
philosopher Aristotle:
“Democratical states _used to_ ostracise and remove from the
city for a definite time, those who appeared to be preeminent
above their fellow citizens, by reason of their wealth, the
number of their friends, or any other means of influence.”[17]
The removal and ostracism of public officers, in Greece, does not seem
to have been used as a punishment for any crime or particular unfitness
developed by the official removed, but rather as a precautionary measure,
to dispense with the services of those who became so powerful as to
excite the fear or attract the envy of their contemporaries.[18]
The procedure whereby the recall or ostracism of a judge or other public
official was accomplished, in ancient Greece, was as follows: A space
was enclosed by barricades, with ten entrances, for the ten tribes. The
tribesmen entered the enclosed space, by these ten entrances, each with
a shell, or piece of earthenware, on which he wrote the name of the
official he wished recalled or degraded. The casting and enumeration of
the vote was regulated and supervised by the presidents dents of the
Senate and by the nine archons, and if as many as 6000 votes against any
one official was polled, this _ipso facto_ removed him from office and
he was obliged to leave the city of his residence within ten days from
that date; but if the total number of votes cast against him did not
equal 6000 he was not removed from office.[19] Because of the shell, or
piece of earthenware, upon which the vote was cast against the official
removed from office, the proceeding came to be known as the “earthenware
scourge.”[20]
By this proceeding, in ancient Greece, some of the most distinguished
men of the nation were removed, or ostracised, but when it was found
that their services were indispensable to the public welfare, they were
recalled to office. Cimon, Alcibiades, Themistocles, Aristeides and
many other prominent citizens suffered this degradation in Athens and
other democratical states, in Greece, for the recall was considered as a
necessary precaution to ensure absolute equality among the citizens of
the various commonwealths.
As a concrete illustration of the application of the recall to the
judiciary, in Greece, we will take the case of Aristeides, known as
“Aristeides the Just.” There is authority for the statement that the
judicial integrity and ability of this old Greek patriot was so generally
recognized, in Athens, that during the presentation of one of the
tragedies of Eschylus, when one of the characters was referred to as
a man who “cared more _to be just_, than to appear so,” all eyes were
instantly turned toward Aristeides, as the one man, who, of all other
Greeks, most merited the title of “The Just,” and from this time on
this truly royal, or divine appellation, according to Plutarch, was, by
universal consent, attributed to this virtuous man.[21]
This remarkable distinction aroused envy against Aristeides and it is
reported that Themistocles circulated a rumor that by determining and
judging causes in private, he was undermining the courts of judicature
and was secretly making way for a monarchy in his own person, so the
jealousies of the populace were so aroused against him that it was
decided to recall this upright judge. Plutarch relates the pathetic
circumstance, connected with the degradation and ostracism of this
Just Judge, that while the voting was taking place, in the railed
market-place, Aristeides was approached by an illiterate citizen, who
handed him his _ostracon_, or sherd and directed him to write his own
name upon the shell. Without disclosing his identity, Aristeides asked
the man if the Judge had ever done him any injury, when the voter
replied: “None at all, neither know I the man; but I am tired of hearing
him everywhere called _The Just_.”[22]
Aristeides made no reply to the man, but wrote as he directed and
returned the sherd to him, with his name written upon it. The six
thousand votes, necessary to procure his removal, or recall, having been
polled, he departed from his beloved Athens, praying, with uplifted
hands, that the Athenians might never have occasion to remember
Aristeides.[23]
The ostracism of Aristeides did not last for the ten years, for which his
punishment was decreed, under the Grecian law, however, for three years
later, when the Persian king, Xerxes, invaded Greece, Aristeides returned
and when the Persians were overcome he was completely reinstated in the
good graces of his countrymen and took a leading part in the affairs of
the government of Athens, without resentment, for he sought no other
gratification than that of serving his country with fidelity and honour.
Themistocles was another of the great citizen jurists of Athens to suffer
the recall or ostracism, by popular vote, while this ancient law obtained
in Greece.
As an index to the character and uprightness of this distinguished
Athenian, it is reported that before entering upon the trial of a cause
in which the poet Simonides, of Ceos, was interested, when requested,
by his friend, to overlook the underlying principles of the law, in the
consideration of the cause, this virtuous judge replied:
“Simonides, you would be a bad poet, if your lines ran counter
to the just measure and rules of your art, nor should I be a
good magistrate, if, for favor, I made false law.”[24]
Notwithstanding the signal and loyal services of this patriotic citizen
in the war with the Persians and his long service as a magistrate, when
Themistocles finally erected his temple of Diana of Best Counsel, with
himself represented by a figure in the temple, the Athenians also became
envious of him and made use of the law providing for the recall and
ostracism in order to humble his eminence and authority, as they usually
did with all those whom they believed to have grown too powerful, for
the equality deemed requisite in a popular government, for, as said by
Plutarch:
“The ostracism was instituted not so much to punish the
offender, as to mitigate and pacify the violence of the
envious, who delighted to humble eminent men, and who, by
fixing this disgrace upon them, might vent some part of their
rancor.”[25]
According to Aristotle, the law providing for the recall or ostracism of
public officials, by popular vote, in Athens, soon became mischievous,
for:
“Men did not look to the interests of the community, but used
ostracism for party purposes.”[26]
The last person against whom this old law was enforced at Athens, was
Hyperbolus, a demagogue of low birth and mean habits; the Athenians
considered that in applying this law to such a person, their own dignity
had been compromised, so the law providing for ostracism or recall, by
popular vote, in Athens, was discontinued.[27]
The law providing for the recall or ostracism of public officers, by
popular vote, known as “Petalism” among the Syracusans, was borrowed from
the Athenian law of ostracism. This species of recall, took its name from
the petals or leaves of the olive, on which was written the name of the
person whom the citizens voted to recall.[28]
Under the law of the Syracusans, known as “petalism,” the removed officer
or judge was banished for a period of five years only, as this was
considered a sufficient length of time to humble the pride and destroy
the hope of the degraded one.
Historians tell us, however, that this law of recall known as “petalism,”
by which the Syracusans voted to recall their distinguished men, by
writing their names upon the corolla, or leaf-part of the olive, did
not long continue in effect, since the fear of this “degradation or
humbling,” deterred the best qualified among the citizens from taking
any part in public affairs, and the degeneracy and bad government which
resulted from the selection of only the lowest types of demagogues for
public officers, led to the repeal of the law, B. C. 452.[29]
In the early Roman days the custom also obtained of submitting to the
people, by popular vote, the determination of accusations against judges
and other public officers, as matters of general public interest and
the _judicia publica_ of later times owed its existence to this antique
custom. Preators, or those invested with judicial functions were no
exception to the general rule, but all classes of public servants were
directly responsible to the Roman people and were liable to be called
upon, at any time, to answer to a charge which might mean banishment or
death.
In the early days of the Republic, every act of a citizen which was
deemed injurious to the State, or its peace, was called perduellio,
and the offender (perduellis) was tried before the forum of public
sentiment (_populi judicio_) and, if convicted of any violation of the
obligations he owed to the State, he was put to death.[30] The crime
known as _Majestas_, corresponding to the English charge of treason, was
apt, at any time to be preferred against the most upright public servant
and the opinions of the populace were found frequently at variance with
the justice of the cause. Justice was not always found to be consistent
with the expressed will of the multitude of Roman citizenship, for
their opinions were not always shaped or controled by the most exalted
standards of equality. Unpopular officials were frequently condemned,
regardless of the reason for the unpopularity, while the able orator or
popular citizen, was usually successful in his cause.[31]
Under the empire, judicial magistrates, such as Preators, were removed,
at the will of the Emperor, and we find that while Julius Caesar had
appointed sixteen, to settle the disputes of the Romans, Augustus
peremptorily removed four and thus reduced the number to twelve.[32]
The early Anglo-Saxons, like the Israelites of patriarchial days, while
recognizing that the power of distributing or enforcing justice, was
primarily lodged with the people, as a whole, constituting the great body
of society, understood the impossibility of administering justice, in
the concrete, by delegating the performance of such important functions,
without investigation or the understanding of correct ideals, to the
great unskilled mass of the people, in their collective capacity, so apt
to be carried away, in such matters, by variable sentiments, or whims
or caprices, based upon impulses, not always consistent with the proper
standards of right.
In order to insure the rendition of justice to every individual, or to
approximate as nearly as might be, to this object, this important power
was committed, therefore, at a very early day, in England, to specially
selected magistrates, possessing peculiar skill and fitness to hear and
determine causes in courts of law and qualified, by study and training to
discharge these difficult public functions with certainty and expedition,
according to correct standards.
Following the beneficent policy, illustrated by the old Mosaic code, of
bringing justice home to every man’s door, as nearly as may he, it was
the general plan of Anglo-Saxon society, as designed and shaped by the
great King Alfred and other early kings, to have such a system of courts
as would speedily dispense justice to all the people, under the various
conditions of society. Anglo-Saxon courts did not have the means of
compelling obedience to their mandates for the majesty of the law was not
the rule implicitly followed by all classes, in the beginning, but before
many centuries, following King Alfred’s time, we find that it had become
the fixed rule of life.[33]
From the early _gemot_, of the Anglo-Saxon period, we soon find the
regular county court and hundred court, where poor and rich alike were
entitled to receive justice, without price and without delay.[34] The
expeditious court of _piepoudre_, (the dusty foot court)—which dispensed
justice as speedily as dust falls from the foot[35]—furnished speedy
justice for small cases, while the _curia regis_, established by William
the Conqueror, held in the royal palace, presided over by the king
himself and his chief justiciar, with court barons, presided over by
the lords of the realm, furnished, for many centuries a complete system
of judiciture for the hearing of the ordinary causes in the realm.[36]
The King was the fountain of justice and it was his business to see
justice done, where the litigant failed to get his cause heard in the
jurisdiction of his own hundred. Of course as a natural result of such
a policy, the right of dispensing justice and receiving the profits
thereof, under the Normans, soon became hereditary rights, passing to
successive lords, whose judgments were supreme, unless the King himself
ordered the entering of a certain judgment.[37] The Court of King’s
Bench, the Court of Common Pleas and the High Court of Chancery, by
gradual processes of time, succeeded to the principal places among
the courts of later centuries, with the establishment by Henry II., A.
D. 1176, of the _justices itinerant_, who divided the realm into six
circuits and afterwards followed a fixed judicial system.[38]
From the reign of William the Conqueror, until that of King John, the
administration of Justice was still kept in the hands of the king, who
was regarded as the source of all justice and law; after the conquest,
the various prerogatives of the crown were increased and it was during
this precarious state of the law that the subjects were obliged to
purchase the favor of the sovereign, in order to obtain justice in the
king’s courts.[39]
So dependent upon the will of the sovereign was the tenure of the judge,
during the reign of Richard I., that we find William de Longchamp, chief
justiciary and chancellor, was removed from his office, by the intrigue
of John, Earl of Morton, the king’s brother.[40]
Judges were then but the servants of the king and he could move them
about as mere pawns upon the chess board of his own expediency,
or dismiss them, at a moment’s notice, if they refused to do his
bidding.[41] Hubert de Burgh succeeded Hubert Walter and Geoffry Fitz
Peter, as Chief Justiciar, but he seldom sat on the bench and was
removed in 1232,[42] when the Chief Justiciarship was committed to a
lawyer, named Stephen Segrave. The latter was disgraced and dismissed by
the King, in 1234, just two years after his appointment and from this
period until 1258, or until the revolution, the justiciarship was in
abeyance.[43]
In lieu of an appeal, or writ of error, which challenged the sufficiency
or correctness of a record or judgment, instead of the judge himself,
we find that from the time of Cnut, until the reign of Henry I., if a
judgment was challenged the proceeding was what was known as that of
“false judgment,” growing out of the practice of early Saxon days, when
a litigant who was dissatisfied with a decision or “doom,” charged the
doomsman who uttered it with falsehood.[44]
Until the thirteenth century the exception to a given judgment or decree
of an inferior court was tested by the charge of “false judgment.” The
record was transferred from the inferior tribunal to the superior one by
certain knights, appointed for the purpose. Frequently, these knights
would challenge the litigant questioning the correctness of the judgment
to trial by battle, to test the correctness of the decree[45] but if this
were not done, and the issue upon the legality of the finding of the
lower court thus determined, the justices of the king’s court proceeded
to examine the record.
If the King’s Justices found, on an examination of the record that the
judgment of the county, the hundred or the manor, were wrong, a fine
was assessed against the judge rendering the erroneous judgment and by
a finding of “false judgment” a Lord lost forever the right to hold a
court.[46]
Here was a method of recall, almost as bad as that existing under the
Babylonian Empire, for instead of removing the judge who attempted to
right a wrong, he was removed before having been given the opportunity to
get right.
As late as the year 1219 we find that the justices in eyre were brought
before the justices of the Court of King’s Bench, upon a charge of
“false judgment,” for having unlawfully condemned a man to death and
upon examination of the record by the Council, their judgment was set
aside and they were amerced with a fine for having entered such a “false
judgment.”[47]
It is little wonder, with this harsh rule obtaining, that by the time of
Edward I. history records that his justices had become extremely cautious
men, unwilling to decide nice points of law but referring every close
question to the Council for instruction.[48] The penalty of a mistake
or “false judgment” to them meant not only a fine, but disgrace and the
recall, if the King saw fit to so punish them, so this was not only
calculated to make a man cautions, but to prevent those of skill and
dignity from risking the expression of their judgment, when the penalty
for a mistake was such that it might forever ruin the future life and
hopes of the judge pronouncing judgment. The strange thing is that with
such a system, any self respecting man could be found to undertake the
performance of functions such as those required of a judge, when his
behavior was the means of ruining his future life, regardless of his pure
intentions in the performance of his official duty.
The tenure of office of the English judge continued for centuries, to
be at the pleasure of the Crown, and under the Plantagenets and the
Tudors, a Chief-Justice even, might be removed, like any other officer
of the King, at the pleasure of the sovereign,[49] and during this whole
period we find that the standards of the judiciary were in keeping with
this servile and undignified conception of the duties of such an office,
for the judges, with but few exceptions, during this period of servile
attachment to the Crown, were men of but mediocre ability, willing to
prostitute their high offices, to hold the esteem and favor of their
patron.
It was thus found, by experience, in England, that the proper discharge
of the impartial duties of the courts was consistent only with the
maintenance, at all times, of their dignity and independence, hence, it
was enacted, by statute, (13 William III., c. 2) that the commissions of
judges were to be held, not as formerly, during the mere pleasure of
the king, but so long as they should conduct themselves uprightly. They
can only be removed from office, upon the address of both houses of
Parliament and since the reign of George III., the commissions of judges
are not terminated with the death of the king, but they continue to
hold their office, notwithstanding the demise of the king, during their
good behavior, or until removed by the joint action of both houses of
Parliament.[50]
And not only did the English law raise the incumbent of the judgment seat
to a plane where he could view, with disdain the frowns of the tyrant
in the performance of his official functions, but that he might also be
free from the clamors of the populace, he was exempt from indictment for
any judicial act honestly done, or omitted, while sitting as a judge. In
other words, while acting in a judicial capacity, judges were not liable
for an honest mistake, but only for fraud or corruption.[51]
The judge is criminally and civilly liable, by the English common law
for judicial acts willfully and maliciously done; for acts clearly in
excess of his proper jurisdiction and for the wrongful exercise of a
mere ministerial act, whether honestly done or not,[52] but this was the
full limit of his liability and for honest mistakes in the performance
of his duty, he was responsible to no one and could be troubled only by
an accusing conscience for a mistake in the performance of a proper
judicial function.
Since the placing of the English judiciary upon this high plane where the
courts are wholly above and beyond the spoils of party or the favoritism
or fears of sovereignty, the respect paid to the majesty of the law
in that country, has challenged the admiration of the world. English
procedure is the pattern for the best governed countries on the earth
and the decisions of her courts have come to be ideals to be followed by
courts of other nations, seeking the attainment of justice.
The patriot fathers, familiar with the mistakes of the ancients and
the reasons for the establishment of the judicature of England, upon
an independent foundation, in the establishment of the judicial system
in the United States, adopted the method that history had commended to
England, of life tenure, with the power of removal for actual misfeasance
in office.
It was therefore provided in the Federal Constitution that judges of
the courts of the United States should hold their offices during good
behavior and they were subject to removal, only by impeachment, like
other civil officers of the Government.[53]
The first Congress, in 1789, enacted the first federal judiciary act,
formulated by Oliver Ellsworth, a member of the convention which framed
the Constitution and afterwards Chief Justice of the Supreme Court.
Speaking of this earnest patriot, Mr. Webster said that he was “possessed
of the clearest intelligence and deepest sagacity as well as the utmost
purity and integrity of character.”
Upon the relative functions of the different branches of government and
the necessity for an independent judiciary, Chief Justice Ellsworth said:
“If the general legislature should, at any time, overleap their
limits, the judicial department is a constitutional check. If
the United States go beyond their powers; if they make a law,
which the Constitution does not authorize, it is void; and the
judiciary power, the national judges, who, to secure their
impartiality, _are to be made independent_, will declare it
to be void. On the other hand, if the States go beyond their
limits, if they make a law which is a usurpation upon the
general Government, the law is void, and upright, _independent
judges_ will declare it to be so.”
This, by the gentleman who reported the bill in Congress for the
organization of the judicial department of the general Government,
demonstrates that those who formed our Government and framed our
Constitution, realized not only that the judgment seat should be
dominated by “the cold neutrality of an impartial judge,” but that this
essential prerequisite to the administration of justice, could not be
obtained by a cringing judiciary, depending upon a vacillating public
sentiment, as an index to its opinions, but would be effectuated only
through the untrammeled judgment of an independent court.
Next to Oliver Ellsworth, the man most active in the establishment of our
Federal Judiciary, was perhaps Alexander Hamilton, and upon the reasons
for an absolutely independent judiciary, this great lawyer, soldier and
patriotic statesman, observed:
“This independence of the judges is equally requisite to
guard the Constitution and the rights of individuals from
the effects of those ill-humors which the arts of designing
men or the influence of particular conjunctures sometimes
disseminate among the people themselves and which, though they
speedily give place to better information, and more deliberate
reflection, have a tendency, in the meantime, to occasion
dangerous innovations in the Government and serious oppressions
of the minor party in the community.”[54]
It was also clearly the object of the original thirteen colonies to
remove the judiciary from politics and thereby establish the independence
of the State Judiciary, as well as that of the Federal Government,
for the Constitutions of each of the original colonies provided for
an appointive judiciary.[55] Georgia alone set the bad example of
providing for an elective judiciary, by direct vote of the people, for
a short term, a practice that historians believe has caused much of the
degradation and humiliation of the state courts, in the past century.[56]
In most of the other states in the United States, the medium was
selected, between the life tenure and the complete independence of the
judiciary upon the one hand, and the recall and disgrace of the judge,
without the formality of a trial, upon the other, and it was provided for
the election of judges, for short terms of office, subject to impeachment
by the legislative branch of Government, in cases of misfeasance in
office.[57]
In one state alone was the English method adopted of appointing the
judges for life, or during good behavior, although four other states have
the appointive judiciary, and it is not strange that in this one state
we find the strongest state court in the United States and the one whose
judgments are received by the various courts of the other states with the
highest degree of respect.[58]
By both the Federal and State Constitutions, in the United States, the
judiciary has always been regarded as an equal and co-ordinate branch of
government, with the legislative and executive. It was accordingly held,
within the past century, that neither the President nor the Governor
could remove a judge, during the term of office for which he was elected
or appointed,[59] but the only way to remove or recall a judge, was by
impeachment for criminal or corrupt conduct.[60]
It is thus a serious question whether the experience of the past century,
in the United States, has vindicated the method followed in so many
states, of selecting judges, for a moderate term, by an elective system,
subject to impeachment for positive misfeasance in office. Many protests,
other than the growing demand for a popular recall of judges, may be
directly or indirectly traced to this method of selecting judges and as
the demands and protests come from states where the tenure to office is
for the shorter terms, it seems that this general policy, when applied
to the judiciary, is condemned both by the examples of history and the
practice and experience of the past century, in the United States.
There is little doubt but that the great Chief Justice Marshall would
have been recalled, after his decision against the Government, in the
trial of Aaron Burr, for treason, if the recall of judges by popular
vote had then obtained, in the United States. The power of Jefferson’s
administration was used, unsparingly, to obtain Burr’s conviction, and
he was already convicted in the forum of public sentiment, for the
populace believed him guilty. The Chief Justice, however, firm in the
consciousness of right, with the true judicial poise, disdained, with
equanimity, the clamor of the populace and refused to sacrifice the
individual, to appease the public wrath.[61] No wonder that through the
genius of this patriot, the Court he presided over was “placed upon a
pedestal of imperishable granite and has become the admiration of the
publicists throughout the civilized world.”[62]
If such a system had then obtained, the country would have been denied
the genius and ability of this just man, for he would never have been
responsible to the fickle flames of a vacillating public sentiment for
the correctness of his opinions. Addressing himself upon the necessity
for an absolutely independent judiciary, Chief Justice Marshall said:
“It is to the last degree important that he should be rendered
perfectly and completely independent with nothing to control
him but God and his conscience.”
Strange, is it not, that the opinions of our patriot fathers should so
nearly approach the views of the patriarchs of the Mosaic period, upon
the qualifications of the judge, for they too, believed that the courts
should be presided over by “able men out of Israel, such as feared God,
men of truth, hating covetousness” and when appointed to judge between
the alleged rights of the ancient Hebrews, they were admonished by the
Great Law Giver: “Ye shall not be afraid of the face of man, for the
judgment is God’s.”[63]
Right well did Moses warn the ancient judges of the Israelites against
the fear of men in the prerogative of the judgment seat, for public
sentiment has ever proven variable and the proper and just ideals do not
always govern the multitude. We have seen them to-day cry “Hosanna” and
to-morrow “Crucify Him.” And since the day when Pilate released Barabas
and delivered the Nazarene to the multitude, because it was popular for
him to do so, the judge who feared “the face of man” has been deemed
unworthy of the trust and dignity of the judgment seat.
The millions burned at the stake, during the witchcraft craze, in Europe,
were convicted before judges whose independence had not been established
by the laws of the realm and they simply followed the expressed will of
the multitude in the act of pronouncing judgment.[64]
In our own country, during the spread of this delusion, in Salem,
Massachusetts, before the courts were presided over by judges appointed
for life, there were nineteen innocent persons burned or hanged for
witchcraft in less than one year, and of these fourteen were women.[65]
In the case of the gentle Rebecca Nurse, hanged on Gallows Hill, on July
19, 1692, after her acquittal by a jury, because the people demanded her
blood, and a subservient judiciary bowed in humble submission to the
_vox populi_, we find one of the most unjust instances of the “recall of
judicial decisions” in the history of any country and one of the grossest
travesties upon justice that has been produced.[66]
The fear of the recall of judges, in France, during the provisional
Republic, following the French Revolution, caused the judges to send a
poor weak woman to the guillotine, because she possessed the foibles
of her sex and the flower of the aristocracy of the country was sent
innocent to their death, because a wrought up multitude demanded their
slaughter. Oh, for the glory of an independent judiciary, in such a
crisis and what a valuable lesson history affords against the precedents
made by public sentiment.
The courts alone protect the rights of the minority, for the legislative
and executive are subservient to the expressed will of the majority.
In the courts, however, the property of the rich and the poor alike is
protected from the might of the powerful and the will of the majority,
because the law of the land, in recognition of the right of the minority
to enjoy life, liberty and property, in this free land of ours, has
provided that no property can be taken, however popular it might be
to appropriate it, without just compensation, after a trial, upon due
process. But when the judges were but the servants of the majority, of
course the wishes of the majority controlled them, hence the necessity of
making them independent of both the majority and minority.
We have seen how the recall of judges by popular vote, in Babylon
and Greece weakened and destroyed their independence and made them
subservient tools of the popular and great leaders of the majority;
that in time the respect of the community for the judges so situated
was completely destroyed and that the fear of humiliation and disgrace
prevented gentleman of dignity and ability from seeking such a precarious
place and the whole judicial system was thereby perverted and deranged.
Commenting upon the condition which the recall of judges by popular vote
brought about in Greece, we have the valuable testimony of Aristotle who
said:[67]
“Those who have any complaints to bring against the magistrates
say: ‘_Let the people be judges_’; the people are too happy to
accept the invitation and so the authority of every office is
undermined. Such a democracy is fairly open to the objection
that it is not a constitution at all, for where the laws have
no authority there is no constitution.”
The framers of our constitution were familiar with the experiments of
ancient Greece and the mistakes of the early Anglo-Saxons, and this is
why the Constitution guarantees to “every state in the union a Republican
form of government.”[68]
Shall the illuminating precedents of history, ever be forgotten; shall
the land-marks of the fathers and the light-houses, planted upon the
shoals upon which other ships of state have floundered, be torn away? Are
the secrets of the old dooms day books of the Anglo-Saxons, to be read in
vain and the mistakes of the law of ostracism of the Athenians and the
discarded and condemned law of petalism, of the Syracusans, to be adopted
in the United States, in the twentieth century?[69]
If the day shall ever come, in the United States, when this mistaken
custom of the Babylonians and the ancient Athenians shall be generally
established, and the disappointed suitor and political demagogue can
gather his associates and bid the judge come down from his judgment seat
to answer the excited multitude for the correctness of his judgments,
then the safeguards of the Constitution, guaranteed to us by the patriot
fathers will be trampled under foot; this will cease to be a Government
of law and become a mere aggregation of people, where law is not the rule
of life.[70]
The statesmen of ancient Greece found that the judge could not be safely
tried by political methods, for the elements of personal ambition,
favoritism, money interest, envy and divers other equations, were
likely to be used in passing upon the qualifications of the judge, when
arraigned before the forum of a wrought up public sentiment. Nor would it
be different in any other country, under similar conditions.
In the days of Hammurabi, when the courts were so much concerned about
the trials of those supposed to “weave spells over a man” and his guilt
or innocence was determined by his survival of the torrent of the “holy
river;” when the standards of justice were such that the surgeon, who was
unsuccessful in an operation, lost his hands; when the veterinarian paid
for all the stock he could not cure; the builder, or artisan, all damages
resulting from a house he had built afterwards falling down. When, in
all the relations of life—save that of the royal prerogatives—the test
of human action was the exalted ideal of infallibility, then the judge
who set aside a judgment was humiliated and disgraced and peremptorily
removed from office. All morality was on a par with such ideals of the
exalted virtues like justice, and brides were auctioned off by their
fathers to the highest bidder and all human action was in keeping with
such dark days of superstition and delusion.
The behavior of the judge of the time of Cnut, in England, when he was
liable to be fined and removed for entering “a false judgment,” was in
strict accord with the low standards of justice then obtaining and from
this degraded position of the judiciary, to that of the exalted notion
of an absolutely independent judiciary, there was the same difference in
the quality of justice administered, that obtained between the generally
ignorant men selected to parcel out the right, for remuneration, in those
dark days and the pure and scholarly jurists, who, for centuries have
made the administration of the law, in England, the admiration of the
civilized world. The history of the judiciary, in England, has certainly
demonstrated the wisdom of an independent judiciary, for no country
pays the same high regard to the majesty of the law and in none are the
correct ideals in legal standards more nearly approximated, than in
England.[71]
One does not have to become an Anglo-Maniac to feel a just pride in
the stability and perfection of an institution, such as the English
judiciary, for all who make law a rule of life, can but revere the
approximation of an ideal where its reign is supreme.
In the consideration of this antiquated and condemned institution, known
as “Judicial Recall,” space has forbidden that we should do more than
merely touch upon the centuries as mile-stones, in hurrying through the
ages. From the facts of history presented, however, it seems strange that
in the evolution of the race, amid the cultivated ideals of our twentieth
century civilization, so many of our states would seemingly refuse to
profit by the mistakes in the Leges Barbarorum of the dark ages; that
they would apparently turn aside from the sad picture of the early
struggle for law and—defying the axiom that we can but “judge the future
by the past of man”—indulge the vain hope of utilizing the popular recall
of judges as a panacea for all the social evils of modern times.
The patriot fathers, profiting by the accumulated wisdom of the past,
builded an edifice in this free land of ours, bottomed upon the solid
foundation of constitutional principles, sufficiently enduring to
withstand the most tempestuous seas of partisan politics, because they
profited by the record which history recorded of the stranded wrecks
of states upon the shores of time. Our fathers and their children
have occupied this temple for over a century and we should have a care
how we undermine the walls or remove the high priest of our liberties,
with rough hands, from the sacred altar. Many a hearth-stone in this
and future ages will need the protection guaranteed by the fundamental
principle of government, which perpetuates the independence of the
judicial department and the statesmen of the present age, without
thinking of the permanence of their work, are making right and wrong for
succeeding ages and by tampering with the institutions that time has
approved, they may incur the everlasting condemnation of the citizens of
succeeding commonwealths.
FOOTNOTES:
[1] Speaking upon the antiquity of courts and judges, John, in his
“Babylonian and Assyrian Laws,” says: “Partly because specific reference
to judges and legal processes are not necessarily to be expected in
historical inscriptions, and partly because we do not really know which
are the earliest monuments of the human race, it is impossible to decide
when law-courts first came into existence. It is generally admitted,
however, that the stele of Manistusu is one of the earliest known
monuments. There we read of Galzu, a judge. There also we find many of
the officials, who later acted as judges upon occasion. Hence it may
fairly be said that judges were to be found in ancient Babylonia from
time immemorial. They must have decided what was right when there was no
written law to which to appeal.”
“Babylonian and Assyrian Laws,” c. v. p. 80.
[2] Exodus, c. 18, 26.
[3] Exodus, c. 23-2.
[4] Deuteronomy, 1-17.
[5] Deuteronomy, 17-9, 12.
[6] John’s “The Oldest Code of Laws in the World.”
[7] New York Independent, Vol. 55, pt. 1,—January-March, 1903—p. 67;
John’s “Babylonian and Assyrian Laws.”
[8] John’s “The Oldest Code of Laws in the World,” p. 2; Code of
Hammurabi, sec. 5; John’s “Babylonian and Assyrian Laws,” p. 44.
A notable case of the recall of judges as late as five hundred years
before Christ occurred among the Medes and Persians, who boasted of their
unalterable decrees, once rendered by the incumbent of the _dangerous_
judgment-seat.
Herodotus tells the thrilling story of the striking example furnished by
King Cambyses, in his final recall of the unjust judge, named Sisamnes.
He caused him to be killed and flayed and the judgment-seat to be covered
with his skin. He then appointed the son of Sisamnes to be his successor,
but charged him, while sitting in judgment, to remember the fate of
his father. This example might be resorted to by the agitators for the
judicial recall, as a more terrible example to an unjust judge than the
mere recall and degradation.
[9] John’s “Babylonian and Assyrian Laws,” p. 82. Whether the reversal of
an erroneous judgment was provided for by appeal, does not appear, from
the Code.
[10] John’s “Babylonian and Assyrian Laws,” p. 90.
[11] _Ante idem._
[12] _Ante idem._ p. 92.
“Shamash-bel-ili sues Nidnusha concerning a house bought by him of her.
The judges grant him two sheckels of silver. Hammurabi I.”
“Shi-lamazi sues her brothers for a field and wins her case.”
“Zariku was put to the oath and replied to Erib-Sin. He was told that as
his domicile was at Sippara, he must not make his appeal to the judges of
Babylon, so his case was dismissed. Hammurabi 28.” This was a case of the
wrong venue and hence, a lack of jurisdiction over the subject-matter.
“Ilushu-abushu hired a pack-ass, of Ardi-Sin and Silli-Ishtar and lost
it. The judges awarded them sixteen sheckels of silver as compensation.
Apel-Sin. 5.”
“Mar-ersitim left a female slave, Damiktum, to Erib-Sin. His wife and
brother disputed the legacy. The judges inspected a document by which
Erib-Sin had granted the slave to his wife, so they return her to the
wife. Hammurabi.”
“A slave, Bariki-ilu, was pledged for twenty-eight sheckels to Ahinuri,
in the thirty-fifth year of Nebuchadnezzar. In the next year we find him
in possession of Piru, his wife, Gaga, and a cousin, Zirra. They sold him
for twenty-three sheckels to Nabu-Zer-ukin. He must have fled from his
new master, for four years later the same people pledged him. He was not
a satisfactory pledge, for next we find that Gaga’s daughter, about to
be married, this slave was set down as a part of her marriage portion,
and she gave him to her husband and his son, and he remained in their
possession, but when his mistress died, he was handed over to the great
banker, Itti-Marduk-balatu. During the reign of Nabonidus, the slave,
Bariki-ilu, attempted to establish his freedom, by pretending to be the
adopted son of Bal-rim-ani, but was made to confess that he had twice run
away from his master and had been many days in hiding, so it was adjudged
that he must return to servitude.” John’s “Babylonian and Assyrian Laws,”
p. 181.
[13] Code Hammurabi, Sec. 215; John’s “Babylonian Laws,” p. 63.
[14] _Ante idem._ Sec. 225; John’s “Babylonian Laws,” p. 63.
[15] _Ante idem._ Sec. 229; John’s “Babylonian Laws,” p. 64.
[16] Diod. Sic. xl, 55; Aelian, V. H. xiii, 23; Smith’s Greek and Roman
Antiquities.
[17] Polio, iii, 8.
[18] Smith’s Dictionary of Greek and Roman Antiquities, _sub nom._
_Banishment_.
[19] Schol. in Aristotle, Equit. 865; Smith’s Greek and Roman Antiq.
_supra_.
[20] _Ante idem._
[21] Plutarch’s Lives.
[22] Plutarch’s Lives.
Aristeides, from the history of the man, as given us by Plutarch was to
be classed with that altruistic lot of patriots:
“Who cared not to be great
But as they serve or save the State.”
[23] Plutarch’s Lives.
[24] Plutarch’s Lives.
[25] Plutarch’s Life of Themistocles.
[26] Aristotle, c. 7, p. 135; Smith’s Dictionary of Greek and Roman
Antiquities.
[27] Plutarch’s Life of Aristeides; Smith’s Dictionary of Greek and Roman
Antiquities.
[28] Smith’s Dictionary of Greek and Roman Antiquities.
[29] Niebuhr, “History Rome,” i, 504; Diod. Soc. xl, c. 87; Smith’s
Dictionary of Greek and Roman Antiquities.
[30] Livy, ii, 41; _idem._, vi, 20.
[31] Gaius, i, 2; _idem._, 20; Tacitus, History, i, 84.
[32] Niebuhr, History Rome; Livy, Sallust, Tacitus, Arnold, Gibbon.
[33] I. Pollock and Maitland History English Law, p. 37.
[34] _Ante idem._, p. 42.
[35] Coke, 4 Inst. 272.
[36] I. Reeve’s History English Law, 264; I. Pollock and Maitland’s
History English Law, 40, 45.
[37] I. Pollock and Maitland’s History English Law, pp. 72, 73; Memoirs
de la Societe des antiquaires de Normandie, vol. xv, pp. 196-197.
[38] I. Reeve’s History English Law, 273.
[39] I. Reeve’s History English Law, pp. 283, 465, 466.
[40] I. Reeve’s History English Law, 280.
The conditions existing before the Barons exacted from King John the
various guaranties of the Great Charter are known to all readers of
English History. The reasons why they stipulated that “Right shall
not be sold, delayed or denied”; that the king should only appoint
“justiciaries, sheriffs and bailiffs, of such as know the law of the land
and are disposed duly to observe it” is emphasized by a consideration of
the many highhanded proceedings that the people of that long suffering
country had been subjected to before this Great Charter of liberty was
exacted from King John. (I. Reeve’s History English Law, 471, 472.)
[41] I. Pollock and Maitland’s History English Law, p. 204.
[42] _Ante idem._ p. 204.
[43] _Ante idem._
[44] Cnut, ii, 15, sec. 2; Edgar 1, 3; Brunner, D. R. G. ii, 356, 365;
II. Pollock and Maitland’s History English Law, 666.
[45] II. Pollock and Maitland’s History English Law, 667.
[46] Note Book, Pl. 1412; Glanvill, viii, 9; Edgar, iii, 3; Cnut, ii, 15;
Leg. Will. I., 39, sec. 1, II. Pollock and Maitland’s History English Law,
p. 667.
[47] Note Book, Pl. 67; Note Book, Pl. 1166; II. Pollock and Maitland’s
History English Law, p. 668.
[48] II. Pollock and Maitland’s History English Law, p. 672; Bracton, f.
186.
[49] Verplanck.
[50] I. George III., c. 23.
It has long been axiomatic, in England, that the Crown even, cannot
interfere with the disinterested performance of its powers, by the
judiciary. 2 Hawk. P. C. 2.
[51] Yates vs. Lansing (N. Y.), 5 Johns xx. 282; Hamilton vs. Williams,
26 Ala. 527.
[52] State vs. Graves, 8 Mo. 148; 40 Am. Dec. 131; Stone vs. Augusta, 46
Me. 127; Revill vs. Pettit, 60 Ky. 314; Reed vs. Conway, 20 Mo. 22; Gault
vs. Wallace, 53 Ga. 675; Cope vs. Rainey, 49 Tenn. (2 Heisk.) 197.
[53] U. S. Con. Art. III., sec. 1.
[54] See Paper “The Judiciary and Public Sentiment,” read before Mo. Bar.
Assn. at St. Joseph, Mo., September, 1906, Proc. 24’ Annual Meeting of
Association.
[55] See interesting article on “Recall of Judges,” by Albert Fink, in
North American Review, vol. 193, p. 680.
The Massachusetts Bill of Rights, adopted in 1780 declares:
“It is the right of every citizen to be tried by judges as free,
impartial and independent as the lot of humanity will admit.” Would that
more of the States had followed this lead of the Great Commonwealth of
Massachusetts.
[56] Upon this subject, Dr. Fiske observed: “It was Georgia that, in
1812, set the bad example of electing judges for short terms by the
people, a practice which is responsible for much of the degradation that
courts have suffered in many of our states and which will have to be
abandoned before a proper administration of justice can ever be secured.”
[57] Thorpe’s American Charters, Constitutions and Organic Laws.
[58] Massachusetts and New Hampshire judges are appointed and hold during
good behavior, but in New Hampshire the judge is subject to recall by the
Legislature and on four different occasions, judges have been removed in
that state by this method.
[59] United States vs. Guthrie, 58 U. S. (17 How.) 284; State, ex rel,
Vail, vs. Draper, 48 Mo. 213.
[60] Evans vs. Foster, 1 N. H. 374; McDowell vs. VanDusen, 12 Johns. 356.
[61] From Address delivered by Judge John F. Philips, December 22’, 1912,
at Omaha Club, Omaha, Nebraska, upon the “Judicial Recall.”
[62] _Ante idem._ The great Wirt was asked, after the Burr trial: “Why
did you not tell Judge Marshall that the people of America demanded a
conviction?” And his reply showed not only the high-minded, professional
gentleman that he was, but the patriotic citizen as well. It was: “Tell
him that? I would as soon have gone to Herschel and told him that the
people of America insisted that the moon had horns as a reason why he
should draw her with them.”
[63] Deuteronomy, 1-17.
[64] Dr. Sprenger, in his “Life of Mohammed” says 9,000,000 were burned.
[65] Upham’s “Salem Witchcraft in Outline”; Nevin’s “Witchcraft in Salem
Village.”
[66] Upham’s “Salem Witchcraft in Outline.”
[67] North American Review, Article by Albert Fink, vol. 193, p. 690.
[68] North American Review, vol. 193, p. 673, for decisions holding
that a Republican form of Government is one where the whole people are
represented by their representatives.
[69] Mr. Rome G. Brown, in his interesting paper before the Minnesota Bar
Association, confidently asserts that the United States Supreme Court
ought to hold the judicial recall, in the United States as contrary to
the Federal Constitution, because a denial of the Republican form of
Government, guaranteed by this immortal document.
[70] See Excellent Paper of Judge John F. Philips, read at Omaha Club,
Feb. 22’, 1912.
If such a custom generally prevailed, it is probable that in the due
course of time we would indeed have:
“Red ruin and the breaking up of laws.”
[71] It is a just source of pride to Englishmen that not a single
lynching has occurred for three-quarters of a century, in a country
governed by the English law.
Illustrative of the complete independence that for centuries has
characterized the English judiciary, it is reported that when accosted
by King James I. and asked how he expected to decide a given case,
pending in his court, Sir Edward Coke, then Lord Chief Justice of England
replied: “When that case shall come before me, I will decide it as a good
judge ought to decide it, in accordance with the law and the evidence.”
Percy’s Anecdotes on Justice.