“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:
[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:
[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.