Further Light on the Recall
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ful, yet while our courts have restrained comes from the failure to perceive that and enjoined combinations in restraint the judges are the servants of the con of trade which also had for an object stitution and not its masters. In his presidential address, which the raising of prices, they have refused to enjoin, but on the contrary have dealt with "Pending Questions," Mr. encouraged, combinations of laborers for Nottingham devoted most of his atten the particular purpose of raising wages. tion to the judicial recall. "It cannot "In fact neither legislators nor courts be said," he observed have in reality treated combinations that the authors of the policy for the recall of capital and combinations of labor on of judicial decisions have made rapid, or in a plane of equality. For many years fact, as yet, any considerable headway toward there has been increasing leniency toward convincing the public judgment. While the idea was viewed with curiosity on account of combinations of labor, while in recent its exceeding novelty, no feasible plan for putting years there has been increasing severity it in operation was presented by its advocates, toward combinations of capital." Fur nor seemed to occur to others who gave it serious thermore, injunctions are not granted consideration. This inherent weakness has to restrain what may lawfully be done; doubtless thus far prevented the theory, as first broached, from maintaining a place in the arena "they only restrain against the doing of serious debate. of unlawful acts," and while the injunc But the very thought of thus subverting the tion is a remedy which should be used proper function of the courts under our form with great caution, there is no reason to of government is abhorrent to the legal mind. We believe also that the sincere and thoughtful believe that this caution has been vio lated — the cases have been studied with layman, when made fully aware of its effect when put into practice, will reject a fallacious great care, and "do not show in any and pernicious theory which renders justice instance the enjoining of a lawful act." unstable and individual rights uncertain, and makes valuable the safeguards than the sanctions of the fundamental of a statute. . law . . The sub-committee has thus, it would less seem, refuted the accusation that the When a self-governing jx-ople frames and courts are to be blamed for a hostile adopts a constitution, it declares, in effect, that attitude toward labor. The assailants it chooses to be ruled by its judgment rather of the courts, who clamor most loudly than its passions. When it clothes the provi for the recall of judges and judicial de sions of that fundamental law in general terms, cisions, fail through a lack of accurate and prescribes a definite and deliberate method information and through a failure to for its amendment, it intends thereby that the principles embodied shall be flexible, but not understand the constitutional function fluctuating. . . . of the courtstosubstantiate their charges. Respect for the courts and reverence for the This is not to deny that the laboring law have here gone hand in hand; and any hasty classes may have grievances needing to and intemperate criticism of them or their deci be remedied by changes in the laws; it sions upon important questions affecting sec tions or classes of people which tends to impair is not to deny that the courts may, with their hold upon the public esteem, reacts upon out exceeding their constitutional func the enforcement of the law, spreads dissatisfac tion, bear at least some share of the tion, promotes disorder, and hinders the prog burden of molding the law to meet con ress of sound and stable government. . . . temporary conditions. The error lies It is not sufficient answer to the foregoing in the assumption that the courts are suggestions, to say that the majority should themselves responsible for the social always rule; and then by fallacious reasoning seek to extend this principle to the control of and economic grievances of labor. It the Judge in the discharge of his duties or to is the old cry of judicial tyranny, which secure the reversal by the voters of his judgment
