ADDRESS

OF

WARREN GARD,

REPRESENTATIVE IN CONGRESS FROM THIRD OHIO DISTRICT.

THE JUDGE AND THE STATUTE.

The framers of the Constitution of the United States in the preamble thereof said, "We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

It is therefore seen that one of the very first purposes of the constitution was to establish justice.

There can be nothing higher than this in any governmental function-the establishing of full, fair and complete justice between nation, state, men and women.

Today, with the greatest armed conflict the world has ever known raging fiercely across the seas, our own country contributing of its treasure and its citizens in defense of those principles we have held ever sacred and necessary to the continuance of this democratic-republican form of government, I am of those who hope when victory shall have come to the cause of the United States, "when the war drums throb no longer," that an "enduring peace," "based upon justice and fairness and the common rights of mankind" will rise from battle-field, burned cities, towns and countryside and the buried and unburied dead; that then the nations shall agree upon an international code of laws, adopting the words of our constitution and "establish justice, insure tranquility, promote the general welfare and secure the blessings of liberty."

Surely the futility of war's horrors and its utter barbarism will appeal to the minds of people generally and a tribunal be created where international affairs may be considered and determined from the evidence and by the processes of reason.

Justice is the triumph of reason, and the justice which is recognized and adhered to by nations will be the triumph of civilization.

Coming from the law-making side of this government to its law-interpreting side, I feel I meet a realization by you representing many courts that the great changes now being made in our civil affairs will not all be reversed, but may be added to in that a greater, stronger, wider power may vest in departments of government to promote the general welfare.

From the old days when the protection of property was the chief object of legislation to this day is a far cry, for the legislation of the day must affect and protect the rights of people, many of whom have not and never will have ownership of property.

Legislation protecting the rights of men, women and children is the most important legislation which probably will be submitted for interpretation, and therefore of vital importance is the subject, "The Judge and the Statute."

By constitutional division, Article I relates to "legislative powers"; Article II recites of "executive powers"; and Article III defines the vesting of "the judicial power."

It is of course commonly understood that in the powers granted each of these divisions by the constitution, each is supreme.

So long, therefore, as there be no question of conflict, the Congress makes the national laws, the Executive enforces these laws and the courts interpret them.

Just a few years ago, agitation was quite widespread against the action of courts in setting aside as unconstitutional certain legislative enactments both in states and the nation and criticisms were made that we were ridden with what were called "judgemade laws."

This agitation was not confined to the impractical or the ignorant, but it attained the dignity of endorsement by aggressive political leaders, even one political party going upon platform record with professed remedies of change in the judicial system.

The recall of judges and the recall of judicial decisions, how much did we hear of them and how for a time they did attract the public attention.

At the present time-since the seventeenth amendment to the Constitution of the United States which provides that "the

Senate of the United States shall be composed of two Senators from each State, elected by the people thereof "—the judges of federal courts are the only persons of constitutional authority under our scheme of government who are not directly elected by and responsible to the people.

The judge of a court controlled by the federal government is given his appointment "during good behavior" and he alone does not have to take his stewardship back to the public for approval or disapproval.

Surely, then, a realization of tremendous trust should be in men who hold these extraordinary commissions.

It has been questioned if the policy of appointing judges for a life tenure is in accord with republican institutions.

Among the reasons for the creation of a life tenure of federal judges one undoubtedly was that at the time of the adoption of the constitution, judges were so appointed in the different state jurisdictions, but nearly all the states now elect their judges, most of them elect by the people and a very few by their legislatures.

Some states desiring to hold in all things the judiciary separate and apart from partisan politics, have enacted legislation which provides that the judge must be elected by the people from a so-called non-partisan ballot upon which the names of the candidates appear without party designation or indication.

Theoretically this is entirely sound, but in practice it does not always work out in the way its proponents thought.

One who is a candidate for a judicial position is most often only well known in a limited locality, for a hard-working lawyer is employed either in his office or in the court-room and therefore is not generally of wide acquaintance throughout a state or indeed in a very large district.

Then, too, the political parties still make nominations for these judicial positions and strive to elect their nominees.

It is the experience of states having this non-partisan law that the ticket containing the names of the judicial candidates receives not in excess of 70 per cent of the votes cast for the regular or partisan ticket.

This is accounted for principally by the fact that many voters have no personal acquaintances with any of the judicial candidates, who must depend upon their personality and have back of

them no platform or declaration of principles from which the voter may choose to make his expression.

It is general with state-wide judicial candidates that their fortunes follow those of the dominant political party; but to the credit of the judiciary, federal and state, appointive or elective, be it said that its conduct is independent of politics and, except in extremely isolated cases, free of corruption.

Much of its criticism has been the result of what is called judicial usurpation.

Article VI of the Constitution of the United States provides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in' the Constitution or Laws of any State to the Contrary notwithstanding."

Section 2 of Article III of the constitution provides:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

Upon this language is the power of the courts founded and by this language is their power limited.

In considering this language it is well to understand that, of all the countries of the world which have written constitutions and laws, the United States is the notable example of adherence to the principle that the court may uphold or set aside a legislative enactment.

It is upon this, apparently, that the whole case of discontent is rested.

From this arose the proposition to recall judges and to recall judicial decisions. Some of our states indeed have laws for the recall of judges, which laws are honored more in not being used than in the strict observance of frequent use.

Indeed, carried to a radical conclusion, such recall must mean a demoralization of the morale of the Bench, the taking away of

necessary independence of thought and action and the substitution therefor of popular approval or disapproval as evidenced by the tumult of the day.

A limited portion of the population, entirely ignorant of the facts or of the law concerning a given case, may temporarily decide that the judge making even a correct and honest decision, but one which has fallen foul of public sentiment, should be removed by their recall.

That this opinion of the electorate may be transitory does not avail; that it may be wrong brings no redress to the wronged.

Clearly, then, any plan which would permit even an entire state electorate, with little or no knowledge of the facts, to recall a judge who may have rendered a just but temporarily unpopular judgment, is fraught with much danger.

If used at all, it is incontrovertible that it should be safeguarded by conditions which would place it at a time when popular fury should not take the place of reason and when ignorance of the facts could be succeeded by the fullest information. Even more potential for harm was the proposition to recall judicial decisions.

If based upon a wider application than à legislative veto of a judicial decree, it would work untold danger by destroying decrees which were the result of careful study and consideration.

But this is a government " of the people, by the people and for the people." That this may continue, the judiciary should be independent, fearless and honest.

It cannot continue if the judiciary arrogates to itself powers it does not properly have, and in its extension of authority usurps the constitutional functions of the law-making body.

The radical would destroy the principles of court procedure and substitute in its stead a vague system of personal responsibility and judgment, based on conditions as they appeal to the individual opinion of the judge sitting in the case, and by so doing he convicts himself of error when he first complains that judges have too much power and then by conferring upon them absolute power without other restriction than the personal opinion of the judge.

It is apparent that the recall of judges and recall of judicial decisions will not remedy that at which certain criticism of the day is directed.