« ZurückWeiter »
bad rhetoric and generally announce worse law? Is it any wonder in such a condition of things that we see daily in our courts the poor and unfortunate litigant with a just cause against a powerful corporation turned out of court against all reason and all law, as it used to be understood and administered?
Neither can, in my judgment, a remedy be found in the appointment of the judges by the executive, either with or without the advice and the consent of the senate. More care and thought might thereby be given to their selection, but I doubt if more honesty. I can but think that our courts would in a quarter of a century become fixed and guarded strongholds of the corporate and trust power more certainly and more unvaryingly. The history of the judiciary appointments in the earlier days of the republic, when nearly all judges were appointed by the chief executive of the state, clearly indicates this; and, if I may be permitted to digress so far, I should say that the experience of the nation in the appointment in the federal judiciary confirms this view.
Four months ago, the American Law Review said that its editors were told by a distinguished senator of the United States that no judicial appointment could be made, or at least ratified, against the opposition of the great railroad corporations in the nation. Whether this be too strong a statement, I leave gentlemen to decide. But of this there can be no doubt that the federal judiciary as a rule is the stronghold of corporate influence and overreaching. Not long ago is it that we witnessed the spectacle of a railroad company, with its lines extending over seven states, chartered by Act of Congress, the gift beneficiary at the hands of the government of an empire, applying for and obtaining from, a federal judge in a state where it had but a constructive presence, an injunctional order unprecedented in the history of the law and condemned so far as I have heard or read by every lawyer in the nation; and at the present time, the federal judiciary are lending themselves to the government in an effort to put down a strike among the employes of the railroad companies, the justice of which strike ought to be determined, between the companies and their men. In so far as there has been lawlessness and disorder amongst the strikers, it is the duty of government-of the state government, however, and not of the federal—to suppress it. But the time has passed in the history of labor and its relation to capital where it is. deemed any part of the true function of government to take part with the demand of capital against the wants of labor.
Threc centuries and a half ago, Henry VIII and his parliament deemed it necessary to legislate in favor of the employer and against the employe. But for more than ha 1f a century even England has abandoned the policy. But, if the newspapers report the President correctly, he informed the committee of the striking A. R. U. that, before he could appoint a commission under the act of congress, not only must lawlessness and disorder cease, but the strike itself must terminate and the men return to their duties. The Attorney-General of the United States in an official opinion has pronounced that a Pullman sleeper is an integral part of the mail service of the United States; and federal judges in Chicago, Cincinnati and other places, have instructed grand juries that, if a citizen of the United States by encouragement and advice induced, or tended to induce, the railroad employes to quit work and refuse to operate a train carrying United States mail, and a Pullman sleeper, unless the sleeper were detached, that such a citizen was guilty of the offence of obstructing the mail.
I shall not pursue this branch of the subject further; I merely throw out these suggestions as a warning to the bar that the subserviency of the appointed judiciary of this country to the demands and interests of the great corporate trusts is such as will effectually tend to prevent the system of appointing ever being resorted to in the states. In the earlier days of the republic, judges were universally appointed, not elected. In nearly all of the states, the ap
, pointive system has been abandoned for the elective. The people will never be induced to return to the former. Therefore, the question presented narrows itself to a determination as how best to secure the non-partisan election. The method which has worked most successfully where tried, and the method which on the whole seems to present the greatest chances of success, is to provide for the election of judges at a time when there are no other offices of the state or local governments to be elected. The conventions which nominate will not then generally be troubled with the ambitions and schemes of politicians. Those who seek admission as delegates to such convention will do so with the sincere desire to secure the best nominations. The opportunity and the material for trades and swaps in the interest either of candidates or localities will be absent. The sole question which will be presented to the voter on the day of election then becomes, Who is the best man? The zeal and the opportunity to inspiré party enthusiasm and enforce party discipline will be wanting. The party committee, party pamphlets, party orators, party carriages, party inspectors, party drummers and party bums will, as a rule, find no employment at such an election. As nearly as it is possible under any circumstances, will it then be possible to obtain at the polls the clear, dispassioned, honest and sober judgment of the people. I believe that, as a rnle, under such a system, even party nominations of judges would in a great measure cease. The bar would have great influence and its views would be listened to with great respect. Any nomination made at such a time which failed to meet the approval of the bar would, as a general rule, I think, fail likewise to meet the approval of the people. Small men, incompetent men, time-servers, would not presume to show their heads at such a convention, at such an election.
No lawyer conscious of his unfitness would think it worth while to rely upon the machinations of politicians, the weaknesses and prejudices of the people and the chances of the political contest to secure a seat upon the bench.
In our state, of course, the system is impossible without an amendment of the constitution. I would, therefore, recommend that this association take steps before the next legislature for the submission to the people of a constitutional amendmeut providing for the election of judges as I have indicated to be voted upon and, if carried, to be in force before another judicial election shall take place. It is not worth while to criminate or recriminate between the political parties as to how and by what influences the present system was incorporated into the constitution. Suffice it for our purposes to know that it is there; that it is a great and generally recognized evil; and that a remedy for it must be found; and this association will be recreant in its duties to the state if it fails to take early and vigorous steps towards reform.
There yet remains one subject to which I wish briefly to advert. That is the coming election of two supreme judges. The Populist convention which met at Yakima a short time ago, nominated two candidates. I do not wish to indulge in personalities at this time, nor shall I go further than to say that I feel impelled by a sense of duty to call attention to the entire unfitness of the nominations there made. A great-a very great-injury will be done to the people of this state should those nominations be ratified at the polls; and deceive ourselves as we may, there is some danger-I believe, considerable danger-of such a calamity. Should the republican and democratic state conventions make this fall political nominations for judges, it is to be presumed, at least it is to be hoped, that they will be of a better character; but of this we have no assurance. The conventions of these two parties in the past—I trust I offend no gentleman's worthy loyalty in saying it-have been such as to inspire us with no lively anticipation of good in the future.
Believing, as I do, that the present high unpartisan standard of our supreme court should be maintained at least, I desire earnestly that this association will take steps which will secure the nomination of fit and competent men for the supreme bench in such a manner that their election may be assured. I, therefore, recommend that this association appoint a committee of its members to at once place themselves in communication with the state committees of the republican and democratic parties and endeavor to procure from them an arrangement by which nominations shall not be made in the conventions of their respective parties for judges; by which a non-partisan judicial convention may be called to meet in advance of either of their conventions, and by which the nominations there made may be ratified and placed upon the tickets of both the old parties.
I see no prospect for this fall's election except this be done, but a three-cornered political fight. What the result would be of such a struggle, no one can say; but, with confidence, it may be predicted that it will not be for the best interests of this people, for the advancement of the standard of our supreme court, or the building it up in the confidence of the bar.