to effectuate a result in the nature of a final judgment of the Court in relation to the question involved, fair and just to the defendant, and at the same time in support of an orderly administration of due process of law.

It seems to me that the method and mode of proceeding adopted, was admirably well suited to carry into execution the new and novel scheme devised for the protection of our Supreme Court on the one hand, and at the same time, for securing justice to meritorious suitors on the other.

It thus appears that the defendant adopted a proceeding well suited to the just administration of the law.

Soon after the appearance of the respective parties before the Court, as stated, Justice Henshaw, signed an order in form, granting to the defendant the privilege and right to be heard by the Supreme Court, as sought by him in his petition, and on the next day Justice Henshaw departed from the State and remained absent therefrom until sometime after the 22d day of January, 1911, the last of the days designated by the Constitution for the performance by the Court of its duty. Judge Melvin was the next to sign said proposed order and then Justice Lorigan, and on the last day, the Chief Justice signed it and placed it in the custody of the Court's Secretary, as was the custom and practice of the Court in matters of this kind.

When said order in form was signed and executed as stated, every member of the court believed it was a valid and effective order and so believed until its validity and sufficiency was challenged by the Attorney General of the State. One of the grounds of challenge was that Justice Henshaw, one of the four justices who signed the proposed order, was absent from the State and beyond its jurisdiction and the jurisdiction of the court, when said order in form was signed and executed by the Chief Justice, the last of the four who signed and executed the same and therefore was, at the time, incompetent and incapable of performing any judicial act within the State.

The challenge with a motion by the Attorney General to vacate and set aside said order came as a surprise to the Court. The question submitted was fully and elaborately argued, and the result was, that the order was declared by the court, to be a nullity and therefore void, because the same was not made

by at least four justices of the court, competent and qualified to make such order.

It may be noticed here, that this decision of the Court was made in the exercise of its jurisdiction in the case after its power conferred by Section 4, Article VI, of the Constitution, had, in the language of the Court, become exhausted.

It may be admitted that the power of the court granted by the Constitution as stated, expired by the lapse of the thirty days appointed for the performance of the duty named. But this though true, I maintain, did not oust the court of its jurisdiction to right the wrong done the defendant by the dereliction of the court-its mistakes and inadvertence. The positive law of the Constitution was not and is not the only law that pertains to the case. There is a common law rule and doctrine which has existed for time out of mind, designed to correct and cure the very kind of mistakes and inadvertences as those which happened in the case of this defendant, to his great prejudice and injury. The rule referred to is axiomatic law-a settled legal maxim in these words: "Actus Curiae Neminem Gravabit" (an act of the court shall prejudice no man). It may be and often is carried into effect by an order of the court, which has inadvertently made a mistake to the prejudice of a party, by an order nunc pro tunc providing that that shall be done, which ought to have been done, in due time.

I am clearly of the opinion that the court ought, upon vacating the order mentioned, to have at once, of its own motion, by an order nunc pro tunc afforded to the defendant, an appropriate correction of the wrong done him, and I am further persuaded that it has not been at any time since said order was vacated too late to make the corrective order.

After the defendant, Ruef, had been consigned to the State prison and thus deprived of his liberty, he petitioned the Supreme Court for a rehearing, asking, among other things, for an order nunc pro tunc to place him in the situation, in which he would have been but for the mistake and inadvertence of the court. This petition was sustained by the citations of many decisions of able and learned jurists, of the highest courts in England and America. It was denied by the court without the expression of an opinion, but I suspect on the

ground, that the court deemed itself to have lost all jurisdiction in the case.

The surrender of jurisdiction on the part of the court seems to have been and to be a palpable mistake in view of the existence of the common law remedy for cure of wrongs such as done the defendant. In the exercise of the jurisdiction for which I contend, the defendant could have been relieved of his loss without injury to any one, and without inconvenience to the court. Four of the seven justices of the court had judicially held that the defendant was entitled to a hearing in the Supreme Court, and it is fair to believe the three reticent justices would have held the same way, upon further and more mature consideration; and still further, that in due time, in view of the fact that the record in the case was an absolute verity, reversal of the judgments of the two courts below would necessarily follow.

The defendant, guilty or not guilty, had a right to a just and impartial trial which no one, of fair and impartial mind, acquainted with the facts and circumstances of it, believes he had, and now what is to be done about it?

The only remedy left the defendant for regaining his liberty of which he has been deprived without due process of law, seems to be by writ of error to the Supreme Court of the United States. It has been suggested that in case he applies for such writ, he may be met with the objection that there is no federal question involved to be considered and reviewed. The question is, however, in relation to the violation of the provisions of the Federal Constitution which declares that "No person shall be deprived of life, liberty, or property without due process of law." By the judgment of our Supreme Court, the process which the defendant was prosecuting in that court, to a final judgment, was obstructed, arrested and defeated by an abandonment of its jurisdiction in the premises before reaching the final judgment pro or con in respect to the subject matter of his appeal.

There is no question in the case in relation to the construction of the Constitution or statutes of the State of which our court has the prerogative right of construction. If there were, I should not hesitate to controvert the proposition that the

court of last resort of a State has the power by a construction of its own Constitution and statutes to nullify or in any degree impair the paramount law of the Federal Constitution, for in Section 2 of Article VI, it is declared: "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which should be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary, notwithstanding."

Dixon, California, 1911.

JOHN CURREY.

President Taft invited attention to the recall of the judiciary as threatening to diminish still further the authority of judges in this country, and thus endangering the movement to give dignity and effectiveness to criminal procedure. The judge presiding at a trial tends, especially in the Western States, to be hardly more, as Mr. Taft said, than the moderator of a religious assembly, so little authority has he over the jury or the counsel before him. And now it is proposed to make an additional encroachment on the independence and influence of the judicial office by making its incumbents subject to popular whims and gusts of passion. That judges trying criminal cases would have little occasion to fear the recall can hardly be said, when the immense public interest in some proceedings of that character is borne in mind. California, for example, will soon vote on an amendment to its constitution giving its citizens power to recall its judiciary. Had the recall existed at the time of the San Francisco graft trials the judges of several courts, from the lowest to the highest, would almost certainly have been its targets.

San Francisco was divided between two hostile bodies of public opinion, one insisting that all responsible for the corruption existing should be brought to justice and the other holding that the prosecutions should be dropped as "bad for business." The whole State, though in a less degree, was agitated by the debate. As the judges' decisions in those cases displeased one or the other faction, the recall would certainly have been resorted to. What those trials would have been like if they had been conducted under the threat of removal from office for displeasing the majority it is impossible to imagine. A worse travesty on a judicial system than that cannot be conceived. The recall of judges is certain to be experimented with by some of the Western States, and we share Mr. Taft's hope that the public will soon see the uselessness of the "nostrum." But in any event, admirable as the English system is, there is little prospect that judge's in this country will ever obtain the authoritative position in court possessed by an English judge. The authority of an English judge is largely a survival, a valuable one indeed, from an aristocratic system. The judges were members of the "ruling classes." The jurors and the public were in the habit of looking up to them, even in their private capacity, as superior in birth, education, opportunities and all the other advantages that carry weight in an aristocratic society. This tradition more than anything else has made the English judge the useful institution that he is today. It is impossible for this country to look upon judges in the same light. A democracy has no such traditions, and the constant tendency here is away from the English view of judicial activity. Western statutes are full of a jealous regard for the importance of jurors.