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Monday, December 29, 2003

Column: Total Recall

Californians recall Gray Davis – but not fondly.

That was just one of the many jokes inspired by California’s tumultuous recall election. The joke gets its punch from the fact that recall has more than one meaning. In addition to its political sense, it is also a synonym for remembering.

That double meaning also allowed Arnold Schwarzenegger to coin a piquant pun by mounting a Total Recall campaign. As it happens, Arnold proved to be quite a punster, also vowing to “terminate” Gray Davis. A joke, no doubt.

The word recall dates from the late 16th Century. Like many words of that vintage, it was made by combining an old Anglo-Saxon word (call), with a fashionable Latin prefix (re). Shakespeare provides the first recorded use of recall and, as luck would have it, he did so in a legal context. In the Comedy of Errors, a character explains the difficulty of having a death sentence commuted by pointing out that a “Passed sentence may not be recall’d.”

From the very beginning, then, the word recall had the sense of revoking, or undoing, something that had already been done. Or, as the poet John Dryden wrote in the 17th Century, “’Tis done and since ‘tis done ‘tis past recall.”

It turns out, however, that almost nothing is “past recall” – cars, tires, computers, and, of course, politicians. The political use of recall was firmly established by the time the Articles of Confederation appeared in 1777. Under the Articles, each state legislature was empowered to select its delegates to the national Congress, and “to recall its delegates, or any of them, at any time within the year.”

The concept of the recall, however, goes back even farther – at least to the 1691 General Charter of the Massachusetts Bay Company, which provides that any of the 28 “Councillors or Assistants” may be “removed” by the General Court or Assembly of the colony.

During the Constitutional Convention of 1787, Edmund Randolph of Virginia proposed a measure that would have allowed for the recall of members of the House of Representatives. The measure, however, was defeated which is why, no matter what you think of your congressman, you have to wait for the next election, or his indictment, whichever comes first.

Following its defeat at the Constitutional Convention, the recall went into hibernation for about a hundred years, reemerging in the platform of various populist political parties in the late 19th Century. Lawyer and historian Joshua Spivak reports that in the 1890’s the Populist Party and the Socialist Labor Party advocated the “Imperative Mandate,” a fancy term for a recall.

The recall is closely related to two other late 19th Century reform measures that had a profound effect on the U.S., particularly the Western States. They are the initiative (proposing new laws for the voters to accept or reject) and the popular referendum (submitting an existing law to voter approval). These measures, first adopted in South Dakota in 1898, are now in force in 24 states, including California, where initiatives are known as propositions.

Ballot initiatives, in turn, have been responsible for all sorts of reforms, not least of which (according to the website of the Initiative and Referendum Institute) is permitting the sale of yellow margarine – a move that had been blocked in the legislatures by dairy interests. Butter producers, not surprisingly, preferred that the non-dairy competitor be sold in its original color (an unappetizing pale white). The last state to allow the sale of colored margarine was Wisconsin, in 1967.

The first modern recall law was passed in Los Angeles in 1903, and by 1911 the law was passed statewide for California. Seventeen other states and the District of Columbia eventually followed suit with their own recall measures. Even tiny Guam has the right to recall its elected officials (both of them!).

And the recall has been a successful export – the Venezuelan Constitution of 1999 includes a recall provision. And now the Venezuelan opposition parties are trying to recall the president, Hugo Chavez.

In practice, however, the recall has been more often threatened than carried out. Until the recall of Gray Davis, the only successful recall of a governor took place in 1921, when angry North Dakota voters threw Governor Lynn Frazier out of office. But the voters evidently took pity on Frazier and elected him to the Senate just a few years later. Take heart, Gray Davis!

* * *

It’s one thing to knock a governor, or even a president, off his pedestal, but now P. Diddy is under attack. Nothing, it seems, is sacred.

Kirk Burrowes, a former business partner of Diddy (aka Sean Combs), has brought a $25 million racketeering suit against the rap mogul, alleging that Diddy and his associates used “acts and threats involving murder, mayhem, and extortion.”

Murder and extortion, okay, but mayhem? Most people think of mayhem as a general term for disorder (“it was mayhem at Filene’s!”). In fact, mayhem has for centuries been a technical pleading term, meaning to injure another violently so as to weaken his ability to defend himself.

Mayhem is a medieval term (and, frankly, a medieval practice), coming from the Anglo-Norman maihem, or injury, from which we also get maim. In old pleadings, the two words are always used together. Thus, as recently as the mid-19th Century, in order to make out an indictment for mayhem, one was strictly required to state that the defendant “feloniously did maim” the victim.

Although one might think that any injury would weaken one’s self defense, that’s not the way the law sees it. The venerable Blackstone writes that, at common law, the cutting off of the ear or the nose is not held to be a mayhem, suggesting, perhaps that those appendages were considered expendable in the good old days.

* * *

Closer to home, newspapers report that Clarence Norman, state assemblyman and chairman of the Brooklyn Democratic Party has been arrested on two counts of larceny. Whatever the merits of that charge, at the very least it gives us an excuse to look at a splendid word, larceny.

Larceny, like mayhem, is an old Anglo-Norman term, coming from the Latin latrocinium, or theft. Traditionally, larceny referred to the taking away of another’s property – as distinct from other forms of theft, such as withholding another’s property. Under current New York law, larceny covers most varieties of theft, except robbery, which is a “forcible stealing.”

The first English law dealing with larceny was the Carte Forestae of 1225, which imposed fine or imprisonment for stealing the king’s deer. The next statute came fifty years later and was also, bizarrely, limited to the theft of deer. At some point, British lawmakers conceded that there may be other forms of property worth protecting, and the law of larceny became increasingly complex.

Medieval lawmakers also created the distinction between grand larceny and petit larceny. The latter applied when the value of the goods stolen was less than 12 pence; when the value was greater, it was grand larceny and the penalty was death.

That was all well and good in the 14th Century, but, what with inflation and all, execution for stealing 13 pence began to look a little harsh in the early 19th Century. One wit gleefully observed at the time that, while everything else gets more expensive, a man’s life keeps getting cheaper. The 12 pence limit was finally repealed by Parliament in 1827.

Clarence Norman, of course, does not face the death penalty. As an assemblyman; however, he might face the wrath of voters. But that will have to wait until the next election, because New York, unlike California, does not have a recall law.

(This column originally appeared in the December 2003 issue of New York Law Journal Magazine).