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by any fear of removal so long as he is acting strictly as the law requires. This is the reason why many who believe in the recall of other officers do not believe in the recall of judges. The following is taken from The Outlook:

“But the judiciary are not representative,” says President Taft, “in any such sense” as the legislative or executive. “It is a complete misunderstanding of our form of government, or of any kind of government that exalts justice and righteousness, to assume that judges are bound to follow the will of a majority of an electorate in respect of the issue for their decision.” As to the recall of judges, “there could not be a system better adapted to deprive the judiciary of that independence without which the liberty and other rights of the individual cannot be maintained against the government and the majority.”

CHAPTER XXVI
DEMOCRACY AND THE COURTS

F the reasons against recall of judges are so strong, as former President Taft thinks, why does any one favor it? Is it because people are stupid, or because different parties and interests think that by recalling judges they could escape from the consequences of disobeying just laws? To understand the reason for the agitation which we have had during the past few years we must look deeper. The supposition which we stated in the last chapter was that the courts apply laws but do not make them. The real source of trouble is that this is only partly true. Let us examine more carefully both kinds of law, the common law and the statute law, in order to see how far judges apply law and how far they make it. Common law we learned something about in the earlier part of the book. We saw that it was built up step by step by the English judges, as they decided cases brought before them. They based their decisions in part upon the customs of the country; in part they reasoned out what would be the fair thing in a new case. They went by previous decisions so far as these seemed to apply; but from time to time there would be something new in the matter that would have to be decided on the basis of what the judge believed to be reasonable. In recent years many new issues have come up for decision and conditions have changed so completely

Do courts make law

or apply it only?

(1) In common law

Instance the fellowservant rule

that judges have had to do one of two things. They
have had to follow the old decisions strictly, and there-
fore make a decision which doesn’t fit the present case;
or they have had really to make a new precedent. One
illustration of the way in which judges virtually make a
new law was the group of decisions, about a hundred
years ago in England, holding trade-unions and strikes
unlawful. Professor Stimson points out that there
were two lines of statutes, either of which the courts
might have followed. On the one hand was the old
line of common law decisions as to gilds, which treated
these unions as perfectly lawful. On the other hand
was the old line of Statutes of Laborers, which fixed
a lawful wage. The courts might have regarded a
trade-union as a sort of gild, and therefore called it
lawful. What they did was to regard it as “a com-
bination of workingmen to break the law by getting
more than lawful wages.” It is easy to see that the
courts were really making a new law here by selecting
which of two possible rules they would apply. In-
deed there are now so many cases to which a judge
may refer for a precedent in making a decision that
it is almost always a question of choosing which prece-
dent he will follow. A distinguished jurist has said,
“that a judge may decide almost any question any
way and still be supported by an array of
cases.”
One illustration of the way in which a judge really
makes new law, although he may think that he is simply
following an old rule, is found in the so-called fellow-
servant rule. Under the old rule of common law a
servant or employee could not recover damages for
an injury caused in whole or in part by the negligence
of a fellow-servant. In olden times only a few work-

men would be employed together. It was easy for each to know the rest. Moreover, there was little if any machinery. Under such conditions it was not a very unfair rule. The leading case in this country in applying the rule was that decided by Judge Shaw of Massachusetts. A locomotive engineer was injured by the neglect of a switchman. The court held that the switchman was a fellow-servant, and therefore that the engineer could not recover damages. “The implied contract of the master,” said the court, “does not extend to indemnify the servant against the negligence of any one but himself.” Now the practical effect of this upon a great railway system employing thousands of men would be to leave the workman with practically no relief at all in the great number of cases where some one might be careless. Under the earlier methods of industry a man might know something about his fellow-servants and the risks he was taking, so that he would be reasonably safe. To apply the old rule to the conditions of a great railway system in which an engineer could know nothing about the conduct of the thousands of other men on whom his safety depends is in reality to make a new law, although the old phrases may be used. As a result, in part, of the precedent thus set, which has been followed by the courts, very few workmen in proportion to the total number injured have received any damages. Although they and their families are ill able to sustain the losses due to the dangerous character of modern machinery, the law as thus interpreted by the courts has practically compelled them to bear the whole weight, except when statutes have been passed to abolish the older rule, or else to give compensation irrespective of who may be at fault.

(2) In statute law.

Instance, the Fourteenth Amendment

What has made the above interpretation seem harder
is that railways and other common carriers have been
held strictly responsible for injuries to passengers
or for parcels intrusted to them for shipment. It has
thus appeared that the courts have protected property
more carefully than they have protected the lives of
workmen.
Besides the common law, the other great division of
law is the statutes, that is, laws passed by Congress
or by legislatures. Here it may seem that the judge
cannot, if he would, make law; apparently his only
duty is to decide whether a case comes under the law.
But before the judge can decide this, he has to decide
what the statute means; laws are usually stated in
very general terms and sometimes the terms are not
clear. The judge must interpret the statute. He may
give it an interpretation which really makes a new law.
For example, the Fourteenth Amendment to the Con-
stitution has this clause, “Nor shall any State deprive
any person of life, liberty, or property without due
process of law; nor deny to any person within its juris-
diction the equal protection of the laws.” Professor
McLaughlin says: “By this amendment, the nation in-
tervened to protect the citizens of the State against
unjust legislation or action of the State.” “Before
this amendment was passed . . . the state had complete
control over its citizens and could be as tyrannical as
it saw fit, provided that it did not interfere with the
relations between a person and the National Govern-
ment or violate the few expressed prohibitions in the
National Constitution.”
What was the purpose of this amendment? Evi-
dently to protect the negro from unfair laws such as
those of peonage, which would virtually continue slav-

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