and unfair competition of the men of the type that we have succeeded in exposing and convicting.

POST-OFFICE AND LAND OFFICE INSPECTORS

The Treasury Department is but one of several departments of the Government at Washington which maintains a force of secret agents. In a previous chapter a brief outline of the Bureau of Investigation of the Department of Justice has been given. Under the direction and orders of the Postmaster-General, through a Chief Post-Office Inspector at Washington, is a force of men known as postoffice inspectors who are distributed throughout the country to investigate offences involving the use of the mails. At the head of each local division of this service is an officer known as the Inspector in Charge. It is this officer's duty to superintend and direct the investigations of all mail fraud operations and to arrest, either through his force of inspectors or the local police or both, the offenders, or those accused of crimes of that nature. Many notorious cases have been worked out by the post-office inspectors. Their most fertile field of operations is, of course, in the large centres of population. In the City of New York particularly is there necessity for great activity. In that city, it is almost needless to say, most of the cases investigated by the inspectors are of a commercial character such as mine stock and real estate swindles; the old-time green goods schemes; wireless telephone and telegraph promoting enterprises; betting on fraudulent horse races and athletic contests; commission merchant swindles; selling worthless goods by using the mails to make gross misrepresentations; work-at-home schemes of various natures; selling state rights and establishing fictitious agencies; "no fund" check schemes; asking fees for fanciful employment; obtaining payment from relatives of deceased persons for goods supposed to have been ordered before death; fraudulent employment bureaus, and scores of other fabrications of the fertile intellect of the criminally inclined. It is estimated that the public was defrauded out of approximately $77,000,000 in 1911 by means

of the various swindles operated through the medium of the post-office establishment of this country.1

The Land Office Division of the Department of the Interior likewise has a corps of special agents or detectives who are employed in investigating land fraud charges and offences. The existence of this force, however, did not prevent the Secretary of the Interior from applying a few years ago to the secret service of the Treasury Department for an agent to investigate what appeared at that time to be extensive land frauds in the West. In this connection President Roosevelt, in a special message sent to Congress on the fourth of January, 1909, said:

The first thing he discovered was that the special agents' division or corps of detectives of the Land Office of the Interior Department was largely under the control of the land thieves; and in consequence the investigations above referred to had to be made by secret service men.

1 See Annual Report of R. S. Sharp, Chief Post-Office Inspector, issued January 21, 1912.

CHAPTER XV

THE RECALL OF JUDGES

The initiative, referendum and recall constitute one of the most significant manifestations of the present state of general unrest, political and social. It is not the purpose here to present anything in the nature of an argumentative treatise for or against the theories appertaining to them, but rather to give the views and convictions on these subjects of the representative men in public life. Equally earnest and equally ingenious are the arguments advanced in support or condemnation particularly of the recall as applied to the judiciary and to judicial decisions.

The subject is not new. If the consideration of the recall is reduced to the judiciary the question becomes a very grave one, and graver still if confined to its applicability to Federal judges. Certain cantons of the Swiss Republic appear to have been the first to try the experiment of the general recall, but in England, so early as the close of the revolution of 1688, we find a species of recall of judges, not indeed by direct vote of the people but by majority vote of each house of Parliament, and even in our own country, one of the smallest states in the Union provided that "each judge shall hold his office until his place be declared vacant by a resolution of the general assembly to that effect."

1

The independence of judges was a subject carefully emphasized at the very outset of the constitutional history of the United States. Alexander Hamilton laid much stress on the necessity of preserving the judiciary free from the passions of the people and the influence of political expediency. He said:

If then the courts of justice are to be considered as the bulwarks of a limited constitution, against legislative encroachments, this consideration

1 Rhode Island Constitution of 1842.

will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctions, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency in the meantime to occasion dangerous innovations in the government and serious oppressions of the minor party in the community. Though I trust the friends of the proposed constitution will never concur with its enemies in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established constitution whenever they find it inconsistent with their happiness; yet it is not to be inferred from this principle that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing constitution would on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively as well as individually; and no presumption, or even knowledge of their sentiment, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution where legislative invasions of it had been instigated by the major voice of the community.

But it is not with a view to infractions of the constitution only that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no further than to the injury of the private rights of particular classes of citizens by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments than but few may imagine. The benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they

may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day, and every man must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.

Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to this necessary independence. If the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws.1

By way of contrast to the fears of Hamilton, the following vigorous interrogatory argument made in the United States Senate in July, 1911, by Robert L. Owen, senator from Oklahoma, is of interest. Senator Owen's address was delivered in support of a bill proposing to put the recall of Federal judges in the hands of Congress.

If judges for life, why not Senators and Congressmen for life? Why not prosecuting attorneys for life? Why not a President for life? Would it not make them more independent of "popular clamor"? Would it not thus enable them to be free from the influence of the prejudices, passions and immature views of the vulgar populace? Would they not, under such favorable conditions, make better rulers of the people?

But, Mr. President, it is not rulers of the vulgar populace we seek. We demand public servants, not rulers, and we wish these servants to respect the will of the people, and not despise the people, or view them as a "vulgar populace." Let us hear no more of "popular clamor"; of the "turbulence of the democracy"; of the "vulgar populace." The people have more wisdom, more dignity and more justice than those of their paid servants who indulge such sentiments or voice such views. No man has the right to hold 1 Federalist, No. 78.