Magna Carta, and Other Addresses

by William D. Guthrie

I have nowhere seen a stronger statement of the objections to the recall of judges than in John Stuart Mill's work on "Representative Government," published in 1861, where he said: "If a judge could be removed from office by a popular vote, whoever was desirous of supplanting him would make capital for that purpose out of all his judicial decisions; would carry all of them, as far as he found practicable, by irregular appeal before a public opinion wholly incompetent, for want of having heard the case, or from having heard it without either the precautions or the impartiality belonging to a judicial hearing; would play upon popular passion and prejudice where they existed, and take pains to arouse them where they did not. And in this, if the case were interesting, and he took sufficient trouble, he would infallibly be successful, unless the judge or his friends descended into the arena, and made equally powerful appeals on the other side. Judges would end by feeling that they risked their office upon every decision they gave in a case susceptible of general interest, and that it was less essential for them to consider what decision was just, than what would be most applauded by the public, or would least admit of insidious misrepresentation."

Probably no more crude, impracticable, or absurd scheme was ever proposed by any one claiming to have the first and elemental ideas of American constitutional government than the proposition to render subject to recall or reversal by a majority vote all decisions in constitutional cases affecting statutes passed under the police power. The term "police power" is the most comprehensive that could have been employed. Most of our individual rights are covered by that term; and when the Progressives say that a statute passed under the police power shall be valid and enforceable, notwithstanding the courts may declare it to be arbitrary, unjust and unequal and hence unconstitutional, if a temporary majority see fit to overrule the courts, they propose that practically all the most vital and cherished of our supposed inalienable individual rights—our personal and religious liberty—shall in final result be at the mercy of any temporary majority. In ultimate analysis, the proposition for the recall of judicial decisions would mean that the majority should act as umpire in any dispute as between themselves and the minority.

The hatred of the courts which the Progressives now share in common with the Socialists, Anarchists and Populists, and that part of organized labor and labor unions typified and represented by such men as the McNamaras, the Debses and the Parks (who in truth shamefully misrepresent the great majority of law-abiding and patriotic members of these organizations), has forced into this campaign an unparalleled attack upon our judicial system and the administration of justice.

When the New York state Progressive platform was first given to the press on September 3rd, the judiciary plank read as follows: "We heartily indorse the declarations of our national platform respecting the judiciary and favor their embodiment in the organic law of the state. We condemn the past attitude of the New York Court of Appeals toward various important and humane measures of social legislation."

The unprecedented indecency of this attack upon the Court of Appeals immediately produced such a storm of indignation throughout the state that the clause appears later to have been amended so as to eliminate that sentence. The final form given to the public omits this denunciation of the highest court of our state, and confines the plank to the proposals of the national platform. I have time now to discuss only two of these planks.

The Progressives declare in their extraordinary and revolutionary platform: "We believe that the issuance of injunctions in cases arising out of labor disputes should be prohibited, when such injunctions would not apply when no labor disputes existed." This should be compared with substantially the same declaration in the Bryan platform of 1908, in which the Democratic party declared: "We deem ... that injunctions should not be issued in any cases in which injunctions would not issue if no industrial dispute were involved."

It must seem incredible that the cultured and talented man who now stands on the Progressive platform soliciting the votes of the people was the President of the United States who in a formal message to Congress on January 31, 1908, on the subject of injunctions in labor disputes, used the following language: "Even though it were possible, I should consider it most unwise to abolish the use of the process of injunction. It is necessary in order that the courts may maintain their own dignity, and in order that they may in an effective manner check disorder and violence. The judge who uses it cautiously and conservatively, but who, when the need arises, uses it fearlessly, confers the greatest service upon our people, and his pre-eminent usefulness as a public servant should be heartily recognized."

During the campaign of 1908, President Roosevelt fiercely denounced Mr. Bryan and Mr. Gompers for the plank above quoted but which he has now adopted. He then wrote a long letter to Senator Knox in which he exposed the danger and dishonesty of this plank. It would be necessary to read the whole of the letter in order to appreciate President Roosevelt's indignation and horror that Bryan and Gompers should favor such a proposition. I shall quote only a few sentences as samples of the whole. President Roosevelt then wrote as follows: "This is the plank that promises the 'remedy' against injunctions which Mr. Gompers asked of Mr. Bryan's party. In actual fact, it means absolutely nothing; no change of the law could be based on it; no man without inside knowledge could foretell what its meaning would turn out to be, for no man could foretell how any judge would decide in any given case, as the plank apparently leaves each judge free to say when he issues an injunction in a labor case whether or not it is a case in which an injunction would issue if labor were not involved." Later the President continued: "Mr. Gompers, now Mr. Bryan's open and avowed ally, has, in the letter here quoted, attacked the federal courts in unmeasured terms of reproach because, by a long line of decisions, the equity courts have refused to make an outlaw of the business man, because his right to carry on a lawful business under the peace of the law has been protected by the process of injunction, because in a word one of the most vital and most fundamental rights of the business world—the right of a business man to carry on his business—has been sustained and not denied by the processes of the courts of equity. This sweeping attack of Mr. Gompers upon the judiciary has been made in a frank and open effort to secure votes for Mr. Bryan." Mr. Roosevelt concluded the letter as follows: "But there is another account against Messrs. Bryan and Gompers in this matter. Ephraim feedeth on wind. Their proposed remedy is an empty sham. They are seeking to delude their followers by the promise of a law which would damage their country solely because of the vicious moral purpose that would be shown by putting it upon the statute books, but which would be utterly worthless to accomplish its avowed purpose. I have not the slightest doubt that such a law as that proposed by Mr. Bryan would, if enacted by Congress, be declared unconstitutional by a unanimous Supreme Court, unless, indeed, Mr. Bryan were able to pack this court with men appointed for the special purpose of declaring such a law constitutional."

The Progressive plank against the power of the courts to punish for contempt is equally revolutionary. It declares in favor of depriving the courts of the power to punish for contempt except after a trial by jury.

The crusade to deprive the courts of the power to punish for contempt began at the time of the Chicago strike of 1894 when Eugene Debs and his fellow-conspirators were found to be guilty of open, continued and defiant disobedience of an injunction order of the United States court which had been duly served upon them. It will be recalled by most of you that if the courts had not then had power to punish for contempt without a prior conviction by a jury—and imagine the chance of an impartial jury-trial during the continuance of a great riot—the Debs party would have had the city of Chicago and the great railway commerce passing through it completely at its mercy. All who want to know the facts and to realize the danger from the condition of affairs then existing should read Mr. Cleveland's account of the strike in his book on "Presidential Problems," published in 1904, and the opinion of the Supreme Court of the United States unanimously upholding the punishment of Debs and his associates for contempt.