Report of Special Committee on

Violation of Code of Ethics

and Law

To the Bar Association of Alabama,
Gentlemen:

No violation of law or of the code of ethics by members of the profession has been reported or come to the knowledge of this Committee, which, in its opinion justified prosecution.

The Committee has communicated with leading members of the profession in various cities in the State in the effort to be advised of any prosecutions that ought to be instituted against members of the profession, but not one has reported. This, however, by no means indicates that there have been no such violations. The trouble seems to lie in the reluctance of the members of the Bar to prefer and follow up charges against their offending fellows.

Several cases of minor importance have come before the Committee, all of which have been investigated, and in each instance, it was manifest that an effort was being made to make the Association serve the purposes of a collecting agency.

Decisions of Courts of Last Resort

Based on Other Than Funda-
mental Principles

PAPER BY SAMUEL B. STERN.

Mr. President and Members of the Bar Association: Are the courts the bulwarks of the people? Do they still retain this entrenched position in the minds and eyes of our great body politic, flanked by centuries of wholesome and sound precedent, and guarded all around by fundamental right and justice? Has the history of the recent past taught us that our people at large stand firmly facing the sunlight of reason and common sense in the comprehension of the value and position of our judicial tribunals in their relations to litigants and the country in general? Or, have we reached that state of unrest which comes with the growing knowledge and consequent conclusion that the fabric of our judicial bodies is being warped because our courts have been inclined to depart from the path of fundamental ideas and have grasped upon other reasons as a basis for judicial decisions?

These are live questions in this day and time. The people have ever been jealous of our courts; they have ever indulged in the theory, as a whole, that though the courts grind exceedingly slow, yet, this is more the outgrowth of an inherent conservatism and desire to safeguard all rights, no matter how apparently insignificant, than to rush with the avalanche like force of political upheavals and lay down

principles, which, though they may stand the test of the present, will be found dangerous precedents for posterity and for the welfare of the nation.

We must not shut our eyes, however, to the ever present criticism of our courts; such criticism is natural; the very principles of our great government promote judicial criticisms; the idea of paramouncy between the three departments, Legislative, Judicial and Executive, seems to give incentive to the people at large to indulge in criticism, for is not each department the creature of the public, and should the creature rise higher than his creator?

But aside from this inducement to indulge in criticism, there is yet another and stronger reason for discussing the relative position of the courts and the people, and that is the question as to how far the courts have in actual practice departed from fundamental principles in the practical every-day application of the law. No matter how respectful the body of the judiciary may be; no matter how capable; unless the judges ever keep before them the sound, fundamental principles of law and common justice to the exclusion of all other things, the duty of the courts to the people must be breached, whether consciously or not.

And this is peculiarly and necessarily true of courts of last resort; if they are the bulwarks of the people, likewise are they the representations of righteous might behind which even the humblest citizen may take refuge and the protectors of constitutional rights and liberties upon which our entire government is founded and has become the glory and envy of the world.

This thought is well expressed by Professor Burgess in his Political Science and Constitutional Law as follows:

"It is then the consciousness of the American people that law must rest upon justice and reason, that the constitution is a more ultimate formulation of the fundamental principles of justice and reason than mere legislative acts, and that the judiciary is a better interpreter of those fundamental principles than the Legislature; it is this consciousness which has given such authority to the interpretation of the Constitution by the Supreme Court * I do

not hesitate to call the governmental system of the United States the aristocracy of the robe; and I do not hesitate to pronounce this the truest aristocracy for the purposes of government which the world has yet produced."

And former President Roosevelt in one of his messages to Congress, expressed a like thought:

"The chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contracts, property, vested rights, due process of law, liberty, they necessarily enact into law parts of a system of social philosophy, and as such interpretation is fundamental, they give direction to all lawmaking."

It is common knowledge that various innovations of government have been abandoned or modified because of the fear that they would not meet the approval of the courts, or would run counter to the theories of fundamental government as defined by the courts, whether they were intended to be so construed when established or not.

The doctrines of judicial supremacy have been the subject of debate between the leading minds of the country; on the one hand they have been affirmed as the necessary concomitants of a tripartite government like ours upon the idea that political theory and governmental practice require that in every State there shall be a supreme authority whose de

terminations must be final and free from review or reversal, and as said by Judge Baldwin, there should be:

"Some permanent human force invested with acknowledged and supreme authority, and always in a position to exercise it promptly and efficiently, in case of need, on any proper call."

The reason for choosing the judiciary as such supreme power in governments based upon written constitutions, like ours, limiting in a great measure, if not almost entirely, the governmental powers and functions of other branches of the government, is thus stated by Professor Haines in his American Doctrine of Judicial Supremacy:

"The distinguished characteristic of these governments is the extraordinary power and position of the judiciary. In this type, it is maintained, the people establish in the constitution written limitations upon the Legislature; these limitations and the constitutions are superior to any legislative act; it is the function of the judiciary to say what the law is, and if the legislative acts are found to be in conflict with the constitution to declare such laws invalid. Thus the judiciary, a co-ordinate branch of the government becomes the peculiar guardian of the terms of the written constitution. The legislative and executive departments are held within the bounds of authority as understood and interpreted by the judicial power."

These theories have, until quite recently, been generally accepted by the bench and bar of the country as a fair definition and extent of the power of our courts of last resort over the rights of our citizens in their relations to our government, and they are indeed sweeping and comprehensive, affecting at one and the same time, the life, liberty and property of