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THE GREEN BAG
and shouted, "Mr. President, I move that a horse and wagon be purchased for the court, and that it dispense justice from its tail board!" The absurd proposal was voted down amid shouts of laughter. The founders of the Republic in their wisdom separated the legislative, executive, and judicial functions, formulating a gov ernment of "checks and balances" based upon permanent, organic law — the Con stitution. While the duty to support and defend that instrument rests alike upon the conscience of legislator, executive, and judge, in practice, following the irresistible logic of Chief Justice Marshall, upon the courts alone has fallen the burden of upholding the fundamental law, against the attempted encroachments of unconstitutional legisla tive or executive action. Thus the courts have decided themselves to be clothed with the unique power of declaring illegal a statute duly enacted by the chosen repre sentatives of the people, or an administra tive function beyond the power of the exec utive official assuming it. The Congress makes the laws; the President's duty is to enforce them within the limits of the power delegated by the people; and the judiciary may say whether this power has been tran scended. "The President and the Congress are all very well in their way," said Presi dent Roosevelt, at a dinner given to Mr. Justice Brown, "they can say what they think they think, but it rests with the Supreme Court to decide what they have really thought." Assuming his "good be havior," that is, freedom from actual cor ruption or criminal misconduct, the judge's decision is final and without appeal except to the whole people, who may by a twothirds majority alter the basic rule. These extraordinary powers, thus reposed, have been exercised, almost without exception, in a fitting manner. It is not my purpose to discuss the plan of government (which has made us to-day one of the most conser vative nations in the world) further than to say that it has magnified the importance
and prestige of the Bench, and increased the stress upon the judicial temper. Just as some men cannot stand success, so many men cannot stand power. Certain types are especially warped by the exercise of intel lectual despotism, and in no way, perhaps, is this more strikingly exemplified than in the manners of the court room. In every Roman triumph the laureled general, with his vermeil-tinctured face, is said to have had a familiar at his side inces santly whispering in his ear, "Remember thou art a man." Be this our "Memento mori" to those judges, happily few in num ber, who forget the humanities. The kindergarten method of the "awful example," ascribed to early temperance lec turers, is adopted in the following instances of injudicious if not unjudicial conduct. A distinguished engineer was on trial in a large city for a misdemeanor in having preferred a powerful contractor. The case was a "political" one. After the trial had lasted several days the mother of one of the jurors died. The trial judge was notified, in order that the bereaved son might be permitted to pay his final tribute of respect and love. The judge withheld the news. The juror learned, after the charge of the court had relieved the jury of any real func tion, that his mother was dead and buried. His protests were useless. His outraged feelings were powerless against the absolute privilege of the judicial office. The judge was reported as saying that the juror must bear his sufferings like a soldier, for the common weal. The conclusion would fol low if the analogy were true. But there was no real necessity for the sacrifice. No statute or rule of court forbids the separa tion of the jury in a trial for misdemeanor. However, if it had been feared that the separation of the jury might have given rise to a suspicion that one of the jurors had been improperly . approached, and news paper and other criticism might have re sulted, then, doubtless, the other jurors would, if requested, have willingly gone with
