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it, and it happens to work well in a given state or nation. The recall of judges for participation in constitutional decisions in which governmental action is erroneously nullified, or the recall of these decisions, must be by referendum, if at all; though the referendum need not actually remove the judges or actually reverse the decision. That the people assembled may exercise this right without necessarily destroying our system is evident. That, in extreme and clear cases, they not only may but ought to exercise in some manner the right to validate governmental action wrongly nullified by the courts is also evident. That this is a dangerous power to be exercised by popular vote is also evident, since it is only in extreme and rare cases that the popular judgment would be likely to be more correct than the expert judgment of the courts. If exercised frequently and if exercised wrongly, it would tend to unsettle our whole system and in the end would probably destroy it. But that a power is dangerous to exercise, is no reason why it should never be exercised. That it is dangerous is a reason for using caution when the power is exercised, and the more dangerous it is the greater ought to be the caution in exercising it.
The recall of judges and the recall of decisions, when used to correct aberrations in the constitutional action of the courts, should undoubtedly be used rarely, and only in extreme cases and as a last resort; and even then with caution and under the most careful safeguards. It should always be remembered that the decision of a court is final only in the case decided, and is never final as settling legal principles; that it is generally the part of wisdom to trust to experts in matters which are complicated and which can be fully mastered only by experts who give their lives to learning the art; that the court as an institution is everlasting; and that though one bench of judges may err, another bench may correct the error, so that the court as an institution is never likely to be wrong except temporarily. Considering the dangers of the recall of judges or the recall of decisions, it seems that it is on the whole safer, in all but the most extreme and rare cases, to trust to the courts correcting their own errors by the pressure of public opinion; never allowing them to forget, however, that they are only the superintending and nullifying agencies of the state as a corporation, and that the people of the state as members of the corporation have the right, which they can and will exercise in the last resort, to annul unconstitutional action of the courts as such superintending and nullifying agencies and to validate the nullifying action, or, at their option, to remove the judges who have thus erred. To grant that the courts in the United States have powers not subject to control by the people in the last resort is to make the courts the American patriarchs or emperors. Like every other governmental agency, our courts, whatever may be the functions they exercise, are the agents of the governed and form a part of the managing boards of the states and of the nation as corporations. Though they have greater functions than the courts of foreign countries, they have a responsibility to the people which prevents the abuse of these great functions. There appears no likelihood that there will ever be such a use of the initiative, the referendum or the recall as will interfere with the performance by our courts of these functions; and there is much in the movement for recall of judges and recall of decisions to encourage the belief that sturdy manhood still persists throughout the American jurisdiction, demanding that governments shall be and remain the agents of the
INTERNATIONAL LEGISLATION AND
Address delivered at the National Conference on Foreign Relations of the United States, held under the auspices of the Academy of Political Science at Long Beach, N. Y., May 29, 1917.
Reprinted from Proceedings of the Academy of Political Science in the
City of New York, July, 1917
SURVEY of international politics discloses two
great facts. The first is, that the nations have
always refused to consider any plan for instituting an international government endowed with physical force. The second is, that the nations, by the Hague Convention for Pacific Settlement of International Disputes, ratified by practically all of them, besides establishing the judicial part of an international organization, legitimized and recommended international conciliation of disputant or belligerent nations by any nation not engaged in the dispute, through good offices and mediation, and also recommended the institution of commissions of inquiry by disputant nations to settle the dispute as agencies of international conciliation.
This second fact is of profound importance; for the Convention for Pacific Settlement is, so far as it goes, a written constitution of the society of nations. By it the united nations instituted an international judicial organ, the Permanent Court of Arbitration, and certain administrative organs ancillary to the court, the Permanent Administrative Council and the International Bureau. By it mediating nations, and commissions of