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LAW SCHOOL REVIEW

Vol. 3

AN INTERCOLLEGIATE LAW JOURNAL

A. F. MASON, Editor

PUBLISHED BY THE

WEST PUBLISHING COMPANY
ST. PAUL, MINN.

American Reverence for Law

By ISAAC FRANKLIN RUSSELL

Chief Justice, Court of Special Sessions of the City of New York

No. 2

I

N COUNTRIES under the reign of law the most striking feature of public government is the pre-eminence of the judiciary. It has been said that the three governmental departments, the legislative, the judicial, and the executive, are, or ought to be, equal, co-ordinate, and independent. Still many qualifications of this broad principle appear in our modern life. The unity of the executive office gives a brilliant and conspicuous position to the President of the United States, classifying him with kings and emperors, and dwarfing into personal insignificance and hiding in obscurity the many Senators and Judges who swarm in the other departments of the public service. The legislative chamber, cherishing the traditions of parliamentary omnipotence, has the glory of the initiative and the power which comes from holding the purse strings of the nation. The German Emperor once said: "I would have a royal, not a parliamentary, army." This royal army brings the Kaiser always to the center

of the stage, and makes the war lord, if not the most powerful, certainly the most dangerous and absorbingly interesting, personage in Europe. The judiciary in Germany, instead of reaching a plane of equality with the Reichstag and the Kaiserate, is rather an appendage to the executive.

In England, so far is the legislative authority above the executive that the legislature may be said to appoint the Cabinet; and, as the Cabinet officers sit in Parliament, we may fairly say that the high officers of administration are merely an executive committee of the House of Commons. The great measures of legislation at Westminster, which agitate the empire and attract attention beyond the seas, are bills framed by members of the ministry, on whom the responsibilities of leadership rest. Thus in England the executive legislates. In another sense the parliamentary majority in the Commons controls the judiciary. This is done through the Lord Chancellor, by whom judicial honors and prefer

ment are dispensed, while the Lord Chancellor himself comes into office and goes out with his political friends who control the majority in the Commons and thus rule the empire.

In the United States, however, the judiciary occupies a much more exalted place, for legislative acts are subject to be set aside for unconstitutionality by judicial determination. With us the

people only is sovereign. There is no irresponsible authority under the American constitutional system. The legislature is not omnipotent. Only the judiciary in the court of last resort can never err. This pre-eminence of the judiciary did not escape the notice of Jefferson, who never accepted Chief Justice Marshall's statement of the law, and always trembled in the strong shadow cast by the Supreme Court under that great jurist.

Finally, the judiciary has the power of practical legislation. The vast bulk of our statutes is simply a parliamentary restatement of pre-existing rules evolved originally through adjudication. The Constitution itself, though written, has been steadily developed through the progressive decisions of the United States Supreme Court, which have added new sections in spirit without any literal extension of the instrument, and have silenced other sections which still hold their place in the body of the document. This marvelous function of judicial legislation is not a usurpation by the court, but is simply the exercise of authority constitutionally granted.

From time to time our Supreme Court has occasionally refused to take cognizance of political and economic matters, referring them with great modesty to the President as the head of the political department, or deferring, on questions of the rate of taxation and finan

cial policy generally, to the ultimate wisdom of Congress. Thus our whole diplomatic policy and our expanding empire, as well as our domestic institutions, our tariffs and our excises, our currency and our taxes, have been submitted for final determination to the judgment of the courts.

The judiciary is, therefore, the ultimate and transcendent authority in countries which have written constitutions. In America, the bench is loftier and mightier than anywhere else on earth; and on the honor, purity, and independence of our judges rest all of our rights to property and all of our liberties as citizens.

In America we all reverence the law. Clergymen, whose philosophies and theologies have so far failed to redeem the world, turn to the law as the way of salvation. The capitalist looks to the courts as the bulwark of his millions, seeking their authority to redress his grievances and protect his investments. The idealist and world reformer needs only, as he thinks, the help of the public purse and the law's strong arm to reinforce his own bright mind and infallible reason in building and governing the Utopia of his dreams. The son of toil, exasperated by the harangues of the demagogue, imagines that he is growing poorer every day, and that the law has robbed him of his rightful inheritance. He seems to think that wealth can be created by statute, and values determined by legislative enactment. The irreconcilable Socialist, in bitter hatred. of the existing order, plans to tax capital unjustly, but finds that he has only succeeded in banishing capitalists.

Law is thus exposed to many perils, particularly in a democracy, where the underlying doctrine is that it is safe to trust the people. We hear this announc

ed by politicians just before election. But it is not always true. The poor can no more be safely trusted with irresponsible power than the rich. In a moment of temptation they resort to spoliative legislation in disregard of the constitutional rights of property. Zealous for the interests of laborers as a class, they deny the right of toilers to choose their employment and accept their wages under the guaranties of liberty and personal security that are contained in the fundamental law.

An elective judiciary finds its only justification in the assumption that it is safe to trust the people. Real merit and sound learning, the sufficient equipment for judicial service, are seldom found in the midst of the boisterous self-assertion that dominates political conventions. To have survived this peril means much for the stability of the American commonwealth.

There is more real reverence for law in America than anywhere else in the world. There is awe of power under 'the military systems of Europe, and much real liberty in England, where Parliament is omnipotent. But only in America is the judiciary a really independent department of government, coordinate with the legislative and executive arms of public authority. For here

we have invested the judiciary with the unique prerogative of interpreting the Constitution and invalidating executive and legislative encroachments on the reserved rights of the people. Generous salary, a long official term, removal only by impeachment and conviction by a two-thirds vote, have given to our judges an intrepidity in the discharge of their duties which has been the mainstay of liberty in times of trial and popular excitement.

To destroy the independence of the judges and their fearlessness in the discharge of their solemn duties would mark the epoch of returning despotism. When judicial honors are regarded as the just reward of service in partisan politics, when judges look tremblingly to the executive, in dread of the resentment of a powerful politician, or fawningly appeal to him for place and pay, when sittings and appointments, promotion to the metropolitan bench, or exile to the mountain solitudes of the interior, reward the subservient and punish the disobedient, then, indeed, are our liberties in peril. It is to real Americans, who have learned to understand and cherish the free political institutions of Anglo-Saxons, and are ever jealous of their own liberties, that we can safely appeal when dangers arise that menace our judiciary and its independence.

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Of the Seattle Bar

Copyright, 1911, by West Publishing Co.

A condensation and compilation of letters from a lawyer to his son who is about to enter upon the practice of the law. The salutations and matters of private interest are eliminated.]

Letter I

YOUR mother and Peggy are leav

ing here in a few days to attend your graduation exercises. I am sorry that I cannot accompany them, but

Martin's case will be heard in the fed

eral court on that date, and postponement is almost impossible. You will remember that is the case which you assisted me in briefing last winter. You labored nobly for the success of the cause, but I found on looking over your citations that some of them bore as much relationship to the actual issue in this case as a pair of handcuffs do to a finger ring. I am not scolding. I want you to feel on your graduation from law school that your legal education in many respects is but beginning, instead of being completed. Remember, son, it takes a bricklayer five years to get his master's ticket, and I don't want you to think that three years in a law school suffices to master either the technique or the theory of the law.

I am not attempting to disparage the law school. I think, on the whole, it has been an advantage for you to attend one. When I finished the A. B. course at Hotchkins - now some few years ago there was no law school for me to graduate to; in fact, at that time, there were but one or two law

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schools in the United States, and their courses were brief and pretty crude. Those were the days when many of the old-time lawyers were writing their pleadings in longhand. A man then

could not sit down and rattle off a com

plaint on the typewriter, or recline in a swivel chair and dictate his pleadings to a stenographer. Still, the old system had its advantages and its triumphs, and some grand men honored and adorned it.

I am glad that you were able to attend law school; but, for all that, I don't want you to come away with the idea that you are infinitely superior to the office-bred lawyer. By an officebred lawyer, I mean one who goes to work in a law office and does his studying under the direction of his employ

er.

Broadly speaking, this is still the English method of making lawyers, and you know that the courts of this country lend a very willing and attentive ear to the decisions of the men who are made under this system. In England, a young man is articled to a solicitor for a number of years, usually five. He employs himself in the office, reads law as prescribed, and takes periodic examinations given by the local bar association-usually a county institution. The practical and immediate benefit of this

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