The Recall of Judges

The Recall of Judges BY DR. JOSEPH M. TANNER

This subject is one which just now is made a political conten- tion among the great political parties of the United States. It is not from a partisan standpoint that I approach the subject in this article it is rather historical and legal. ; There is perhaps no phase of the political development of our country more interesting, from the standpoint of the historical, than that which relates to the proposed right of the people to turn a judge out of office after he has been duly elected and qualified. It may be said at the outset that in no country in the world have the judges such far-reaching and absolute powers as those exercised by the judiciary of the United States. Let us see briefly how this has come about. We adopted a Constitution and put it in writing. The avowed purpose of that Constitution was to protect the people in funda- mental rights against the encroachment and against the dangers of popular government, for popular government has its dangers. When Congress, therefore, passed a law, the question sometimes arose whether it was in violation of constitutional rights. If such a law did violate the Constitution it was evident that no part of our government was so well qualified to declare it unconstitutional as the judiciary. On the other hand, it was a very delicate matter for one body of men, especially the judiciary, to turn down the • legislature, a more numerous and altogether more imporant body

in the government of our country. That is what the judiciary practically had to do whenever it declared a law unconstitutional. As such a power, however, was experimental, in the early history of our country, the judges exercised such a power in great mod- eration and with great reservation. They said, then, that the court would not declare a law unconstitutional unless it were so palpably in violation of the fundamental law that no two reason- able men could have diverse opinions on that subject. In other words, the court said, if we had been legislators we would consider the law unconstitutional but, as there is some doubt on the ques- ;

tion, we will give the legislature, or Congress, the benefit of that doubt and not pronounce against the validity of an act of Congress. In time the judges became less modest in the assertion of their powers, and judges took the bench who did not always make that fine discretion in favor of congressional enactments. The result was that if the judges considered the preponderance of rea- son or the argument against the constitutionality of the law, they

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declared it invalid, even though there might be much said in favor of the view taken by Congress in the passage of the law. Then we come to this anomalous situation, that the supreme court itself was divided as to whether the preponderance of reason or the argument was on the side of the constitutionality or unconstitutionality of the law. They were not asking themselves any more whether it was so clearly unconstitutional that no two reasonable men could have any substantial differences of opinion on the question, and they gave Congress, therefore, no benefit of the doubt. It may be said that the people of the United States, until recent years, have been measurably satisfied with the conduct of our courts. A few judges have been impeached by Congress, as the Constitution provided; though judges were appointed for life, Congress might turn them out of office when they were guilty of treason or other high crimes and misdemeanors. This provision of the Constitution, it will be seen, put restrictions upon the judges by which they could be controled if they exercised their powers in an unconstitutional manner. There arose, in time, those who believed that judges ought to be removed from their offices when they were guilty of questionable conduct, even though they could not be punished in a criminal court for what they had done. They believed that judges might place themselves under obligations to money and other influences that would make it difficult, if not impossible, for judges to act in an impartial manner, and that the people should be permitted to say by a vote in an election called for that purpose, whether or not the judge should be turned out of his office. Recently a judge of the United States has been impeached and by the judgment of the Senate lost his position. It is very doubtful whether this judge who was impeached could be pun-' ished in a criminal court for any violation of the criminal law. In dealing with this case, Congress brought to its assistance another provision of the Constitution than that which dealt with high crimes and misdemeanors. There is a provision that judges shall hold their offices during good behavior, and this good behavior clause the Senate of the United States evidently thought was sufficient to oust Mr. Archbald from his judgeship. It will be seen that we have broken away from the question as to whether high crime or misdemeanor must be proven against a judge before he can be ousted. He may lose his office, also, for misbehavior, and that is a very general term, and enables Congress to say even in an indefinite manner whether a man is or is not fit to hold the office of a judge. The question now, as it touches the political phase of the case, is whether Congress and the legislatures, shall determine the recall of the judges, or whether their recall shall be made or attempted by a vote of the people at large. That is a political question which I may not here discuss.

"Joseph Smith, Jr., as a Translator"

[This scholarly criticism by Dr. Webb, appeared in the Descret News, January 18, and has been corrected by the author for the Improvement Era. The editor of The News introduced the article by the following note "The author is a non- :

resident of Utah, and is not a member of the Church of Jesus Christ of Latter-day Saints. The article as received by The News was accompanied by the statement that the author had written it upon his own initiative, without request or suggestion from any member of the Church, and solely because of his interest in the subject, to which his attention had been drawn by the publication of the pamphlet by Episcopal Bishop F. S. Spalding, and comments thereon." The Editors.]

A Critical Examination of the Fac -Similes in the Book of Abraham BY ROBERT C. WEBB, PH. D.

The title of this review is also the one by one, able to take his points, title of a pamphlet recently issued and analyze them. He lv.s given us, by the Right Rev. F. S. Spalding, however, only a few extremely gen- Bishop of Utah, "with the kind as- eral criticisms, the common kernel of sistance of capable scholars," which which seems to be this, "Joseph Smith embodies a discussion of the ''Mor- could have known nothing of Egypmon" prophet's abilities as a trans- tian therefore drawings; he knew dcouments including lator of ancient — nothing." The scholars quoted evithe Book of'Mormon ("for the sake of not consider the CAUSE dently do argument") in the — light of his CELEBRE, Spalding VS. Smith, a apparent failure to rightly in- matter of sufficient importance to

terpret certain Egyptian drawings, warrant the giving of desirable details commonly included with, and be- in their expert testimony, and, in lieu lieved to illustrate, the Book of of these essentialand interesting facts, Abraham. Joseph Smith's failure which should have beeen presented, to interpret these drawings is, pre- seem inclined to fill valuable space sumably, established by the opin- with sundry expressions of contempt at the efforts of a non-professional ions of several prominent Egyptologists, who have been consulted by translator. These authorities, All this is a genuine disappointment Bishop Spalding. while differing among themselves in to the candid reader, who, in view of some all join in stating that details, the promises made before publication, Smith's interpretations are entirely had expected to find Smith's points wrong, and, in the words of one of discussed and attacked, one by one, their number a "farrago of nonsense." until all were disposed of. If possible, This looks very like a final disproof one might then have presented availof the Prophet's claims, in this in- able counter-proofs and arguments in stance, at least, and has been received rebuttal. But, as it is, the prosecution as such by a goodly portion of the rests case on the reputations and its

public. standing of its witnesses, rather than that the Bishop's It is to be regretted on what they have established as re- a more gards the matter at issue. Consepamphlet not in itself is scholarly production, showing evi- quently, the argument of the defense is entirely constructive. dences of some original research on the matter in hand, in addition to the In view of all the adverse testimony opinions of the several scholars quot- at hand, what may be said on the ed by him. We should then have been other side of the present controversy?