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THE RECALL OF JUDGES A
A UNITED STATES Snversation:
cently said in private conversation: "If judges could have been recalled in John Marshall's time, there would have been at least two movements to recall him as Chief-Justice, and each of them would have been led by a President of the United States."
The reference was, of course, to the dis like of Marshall's decisions expressed by both Jefferson and Jackson. Marshall's epoch-making opinion in "Marbury versus Madison" gave deep offense to Jefferson, and he is thought to have had that case in mind when, fifteen years later, he wrote of the judiciary as a "subtle corps of sappers and miners," and spoke of "a crafty chiefjudge who sophisticates the law to his mind by the turn of his own reasoning."
Indeed, the beginnings of the recall of judges may be said to date from that period, for John Randolph, in a rage at the failure to impeach Justice Samuel Chase, proposed as an amendment to the Constitution that "The Judges of the Supreme Court and all other Courts of the United States shall be removed by the President on the joint address of both Houses of Congress." Needless to say, that cirium ardor prava jubentium did not prevail.
Something may perhaps be said for the recall of non-judicial and elective officials. It is much talked of nowadays as a useful weapon in municipal and in State administration. But those who propose to apply it even in that limited sphere are forced to admit, if they are sober-minded men, that it is a sword which may cut the hand that seeks to wield it, and that its use must be carefully guarded.
Thus, in the general law passed this year by the New Jersey Legislature, providing for a commission plan of government in those cities that choose to adopt it, there is a provision for the recall. But it is significantly hedged about. The lanThe language of the statute is: "No recall peti
tion shall be filed against any officer until he has actually held his office for at least twelve months, and but one recall petition shall be filed against the same officer durtired th ing his term of office."
What does this indicate if not that Governor Wilson and his advisers perceived the danger of misdirected passion, which might wrong both the city and one of its officials by removing him for an act of duty and of justice at the moment unpopular?
A system must stand or fall by its application to extreme cases. If the recall is good for mayors and governors, it is also good for Presidents. But if it had been possible to recall a President, there can be no doubt that Washington would have been recalled at the time of the excitement over the Jay Treaty, Lincoln in 1862, and Grover Cleveland in 1894.
Recall of judges, as a concrete proposal, has scarcely as yet been put before the voters. It was embodied in the constitution drafted for Arizona, but if she is admitted by Congress as a State, it will be only after her citizens have had an opportunity to vote upon the judicial recall as a separate and distinct provision. In California a constitutional amendment allowing the recall of judges is to be submitted to the electors.
These two specific instances have provoked much discussion in the country at large. At first many were taken with the new idea. But it must be said that the weight of argument is heavily against the innovation. President Taft has opposed it emphatically; Colonel Roosevelt guardedly; Governor Wilson explicitly. In both Houses of Congress the sentiment against it has been pronounced and even militant. So obvious is the present trend of opinion that it is safe to predict that there will be little experimenting with the recall of judges for a long time to come, except possibly in Arizona and California. If those commonwealths choose to make of themselves a kind of laboratory in legislative experimentation for the benefit of the rest of the nation, they will
surely be watched with interest; but there is small likelihood that they will soon find imitators.
That the issue of judicial recall can become country-wide under our present system is impossible. Federal judges are appointed, not elected, and cannot be recalled. The same would be true of the States which appoint their judges, such as Massachusetts and New Jersey. Nevertheless, the questions underlying the proposal are so grave, and go so directly to the foundation of our form of government, that it is of the highest importance that the people should have sound ideas on the subject.
To put the matter in few words: the highest of all qualities in a judge is a fearless sense of duty. "I will do as becometh a judge," was the noble reply of Lord Coke when beset by the blandishments and veiled threats of courtiers. Such an attitude depends upon security in a judge's position. He is set to declare the law. But if he knows that an unpopular, though just, decision will result in stripping him of his judicial robes, then the function of the judiciary will become degraded into declaring not what is the law, but what is the passing madness of the hour. Learning we ought to have in judges, and industry, but above all independence. If they are corrupt, they can be removed by orderly impeachment; but the recall would subject a judge to impeachment by the mob, with no sufficient reason shown, and with no opportunity for adequate defense.
In the American plan of government, the judiciary stands apart from partizan clamor and popular fury. The voice of the judge is as the voice of deliberate reason raised above political tumults. To deprive our judges of the power to utter that voice, undaunted by popular outcry, would be a blow not merely at our judicial system, but at the whole fabric of our great experiment in democratic government.
VALUE IN PAINTINGS
Hsingle picture to hang on a wall is
ALF a million dollars paid for a
an event that stirs the imagination of every intelligent person. So far as may easily be judged, it means that appreciation of the existence of intrinsic value in paintings by the assured masters is to-day
more general among the civilized nations than has ever been the case before. An isolated instance of such a fabulous payment might be ascribed to fancy or eccentricity, or possibly self-advertisement; but the general advance in auction prices during the last few years, and the private sale of scores of paintings for sums ranging eagerly from one to five hundred thousand dollars, establish a new record of spiritual demand as well as exchange value.
America has led in the broad movement of bidding up prices, and as a result has secured most of the prizes. In the October CENTURY of last year were described eighty-six Rembrandts owned in America; since which time "The Mill," at the highest price till then ever paid for a picture, has been added to the list. Other of the great masters of Europe are well represented in American galleries, both as to beauty and corresponding price, and obviously nothing but reluctance to sell, or national ownership, stands in the way of the transference of other grand masterpieces for sums exceeding anything yet paid.
Nobility of treatment and dignity of subject are characteristic of every painting which has made a strong draft on the "ripping-cord" of the modern purse. They are all works which have survived lifetime neglect or favoritism, the whims of fashion, and the crotchets of taste and criticism. They stand among the exponents of the finest and highest feeling attained by mankind through centuries of striving and groping after that something above the joys and accidents of every-day life which is passed along from generation. to generation and hoarded as the increment of human life, as the flower of civilization. While not so important to mental and spiritual growth as the composite literary treasures of the world, the great paintings and statues express a more individual power and a more direct spiritual influence. They are the acme of cultivated insight and concentration directed to the expression of the elemental longings of mankind.
In connection with these purchases that are epoch-making in enlarging the idea of intrinsic value in art, there have been scoffings aimed at the abundance of dollars and an imagined paucity of taste; and some headshaking over a narrow view of such prodigious payments, on the score of
self-indulgence or extravagance. kinds of caviling are misdirected. noble taste in art has been very common among the men who have risen from small beginnings to great wealth, because sensuous emotion and response to elemental beauty are instinctive with men of large nature and creative mental power. Under different conditions many of our captains of industry would have been preachers or writers or painters. And in art, they readily come to a knowledge of the works that bring sublime messages to the soul. They also have the courage to exchange money, which in superfluity they cannot enjoy for paintings which, in the flash of an eye, illuminate the whole civilized world. Surely no better use could be made of American dollars than by the purchase, no matter how large the price, of treasures that doubly enrich the purchasers, which bestow on a whole people pleasures that educate and inspire, and which confer distinction on the nation that protects them. The owners of fine paintings, as a rule, are generous in showing them to the public and in allowing them to be reproduced for wide-spread enjoyment. Such multiplication never cheapens a great picture. Even if copied by another great artist, the original still remains the solitary exponent of its own individual and impregnable beauty.
While even a crude printed copy has some educational value, it is the original which teaches the public that the finest methods of reproduction do not convey all its subtle beauty. It is the original which continually tells the public that especially in art the cheapest is likely to be the dearest. A single page picture in a "highpriced” periodical (a Timothy Cole engraving, for instance, which in one sense is a copy and in another sense an original work of art) frequently costs about as much to produce as all the pictures and art embellishments of a single number of some of the low-priced magazines. The great paintings are our faithful monitors as to the qualities that count for art value.
YACHTING AND THE PRESERVATION OF SAILING TRADITIONS N the yacht anchorage at Bar Harbor, shown as the frontispiece of this number of THE CENTURY, a picture of sailing-craft is offered which is now charac
teristic of most salt-water harbors on our coasts, as well as of the ports on the Great Lakes, and even of the larger inland bodies of water.
It is with a vivid recollection of a most inspiring scene that the writer recalls a certain summer morning in the seventies when, in a schooner wind-bound for three days in Hampton Roads, he awoke to find a fair wind blowing from the west, and with fully two hundred sailing-vessels passed seaward, feeling himself, in a boyish thrill of adventure, like a part in another great armada.
Where now on the face of the waters could such another scene be duplicated? The sailing-ship, the most majestic and graceful creation of man, is passing. In the Erie Basin, or here and there in the upper reaches of the rivers and kills of the metropolis, an occasional square-rigger may be seen; but the days when the waterside of South Street, with its network of spars and rigging, looked like a forest in winter, and the great bowsprits slanted over the street itself, are gone forever. Where are the brown-faced sailormen who used to huddle about the corners of the waterside, and the old ships' cannon, planted muzzle-down among the cobblestones, that were used for hitching-posts? Going, or gone, are the shanty-songs that used to be heard round the warping capstan-bars, and likewise the canvas advertisements that, hanging from the foremasts of packet-ships, proclaimed as destination the names of half the ports of the world.
With the sailing-ships the professional sailor is also rapidly passing. All the glamour and romance and skill that make up the poetic side of the sea are coming to be more and more left to the province of the amateur sailor. The yachting clubs of the world enroll a hundred thousand men, a third of whom, perhaps, are active members; but of these last a large percentage are followers of steam and gasolene, since their fetish is speed.
It is by the remnant who will stick to the sail, encouraged by that even larger body of men who, enrolled in no clubs, still feel a thrill at the sight of the dip of a wind-filled sail, that the traditions of the old seamanship will be preserved. True yachtsmen, sincere lovers of the sea, they are slowly though surely widening their knowledge, and showing their skill
in saner types of craft; for it is in the onetype class of racing-boats and in the more substantial cruising-craft that American yachting is showing its greatest promise to-day.
The records made in the races with
Germany in the sonder-class boats have shown that the American amateur is a thorough-going sailor, while the growing inclination for ocean races has fostered a lively appreciation of the value of weatherly qualities in even a boat of pleasure.
ON THE ALLEGED DETERIORATION OF YOUTH From a Lady who Remembers that she was once Young to a Friend who has Forgotten this Circumstance
YES, Jane, I have read both the magazine articles to which you refer, and which you so feelingly indorse. In the last ten years I have also read scores of similar articles, setting forth the shortcomings of youth, and I am now quite sure that Adam
and Eve were the only elderly couple this world has ever held who, for obvious reasons, did not consider that young people had changed for the worse since the days when they were boy and girl.
Don't think, please, that I am cherishing illusions. I am not. I am cherishing recollections instead. Of course girls are silly and selfish. “Knowledge comes, but wisdom lingers," only the coming of knowledge is problematic, and the lingering of wisdom is a sure thing. Of course boys are wasting their opportunities. Was there ever a boy except William Pitt, Junior, who did n't waste his opportunities? But I remember what I was at seventeen; and, what is more, I remember what you were at the same age,‚—a very pretty girl, Jane dear, but certainly no pattern to your sex; and, what is still more, I remember what Tom was before he married you. Just ask him to-night if I don't. Yet here am I, a lady not destitute of merit; and here is Tom,-well, really, we are all rather proud of Tom; and here are you, the mother of four big boys so wedded to athletics that they do not even smoke. Is it for you to lament that the rising generation do not reach the high standards of our youth?
Jane, do you perchance remember the
foolish and vapid flirtations which engrossed our minds and hearts? We did not play any outdoor game but croquet, and what girl could work off her superfluous and perilous energy, dawdling about acroquet-ground? Do you remember the systematic deception which made possible Tom's courtship, and how you excused yourself for hoodwinking your parents by saying that they, in their time, had run away to be married? Do you remember how many of Tom's college friends drank, how many of our friends were what we somewhat proudly called "fast," and what a vulgar and demoralizing thing this fastness was? And don't you think that the trouble lay in the aloofness of older people who might have helped us had we been more friendly and less deferential, and in our not having our fair share of keen and healthy interests to keep us out of mischief?
"Never," you write, quoting from one of your disconsolate critics, "were the young so thirstily avid for pleasure as now." My dear Jane, we were just as avid in our day, only less frank, and a trifle less strenuous. Tom did not play foot-ball, but more than once he played the fool, a part suited to his joyous immaturity. We did not strive so hard to amuse ourselves,-perhaps because we did not know how,-but neither did we strive to improve the race, like the dear children who are now teaching sociology to factory hands, and the principles of art to slum babies, and the rights and wrongs of suffrage to the world. Please
don't quote vulgar proverbs about grandmothers and eggs, because I won't listen to them. Imparting one's ignorance to one's fellow-creatures may not be the highest form of usefulness; but at least the girls so engaged are avid for other things than pleasure, they are stirred by nobler impulses than the mere love of fun. For my part, I like to be instructed by my juniors. It lightens the responsibilities of age.
As to manners,-well, if young people no longer affect the reverence they never felt for our advancing years, if they meet us with more candor and a trifle more of condescension, we are gainers by the change. We are admitted to a companionship which elderly ladies (and please remember that we are elderly in their eyes) never enjoyed before, and by which it behooves us to profit. You know Mrs. James Landon, or at least you used to know her before she left Boston. She is the most wonderful old woman in the world, eighty-seven if she is a day, and as alert, as keen, as gay, and as capable of sustaining an argument as if she were half that age. Well, the other day she complained half-humorously to me that her grandchildren (three of them were in the room) did not treat her with proper respect; whereupon Eloise Brinton's youngest daughter, who is still going to school, said: "And a precious good thing it is for you, Granny dear, that we don't. It is our disrespect which has made you the delightful old lady that you are. If we never contradicted you, and never argued with you, and never jolted you out of your ruts, you'd be a chimney-corner grandmother, as dull as
dull can be. We keep you young. We treat you as if you were one of ourselves. We do you the justice of meeting you mind to mind."
There is the arrogance of youth for you, but there is also the boon which only youth can give. I hope that if ever I live to be eighty-seven, somebody else's grandchildren -since I shall have none of my own-will lay aside the deference due to my antiquity, and meet me mind to mind. You say that girls are less well-mannered than of yore; but will you please recall a page in the diary of Louisa Gurney-such a well-brought-up little Quakeress!-which illustrates the youthful point of view:
"I was in a very playing mood to-day, and thoroughly enjoyed being foolish, and tried to be as rude to everybody as I could. We went on the highroad for the purpose of being rude to the folks that passed. I do think being rude is most pleasant sometimes."
One hundred and twenty-five years, Jane dear, since those illuminating sentences were penned. Now, don't write me any more lamentations over the falling off of boys and girls from heights they never attained. I only wish you had a daughter to inherit your curly hair-what good is curly hair to a son!-and your waywardness. would be on easier-and safer-terms with you than we ever were with our mothers, she would remind you occasionally of your own “playing moods," and she would make you understand, as I can never do, the mutable qualities of youth.
Your most loving friend, Agatha Reynolds.