The daily journal. (Salem, Or.) 1899-1903, 1903-10-15

In all courts in every part Of our State,
Judges win give the same measure and
privilege to friend ind foe, high or
low. who comes before it as a litigant,
in such cases as the courts have been
used to granting the same, or where
Justice is subserved thereby and fair
and complete trial can be had, so that
justice, right and mercy win flow
alike and that the administration Of
the law will be uniform throughout
the land.
If the theory of the administration
of judicial discretion could be put into
actual practice and its purpose actu
ally and fully accomplished it would
be sublime indeed and would make
the administration Of the law perfect;
but unfortunately the frailties of some
men selected as judges thwart its very
purpose and make it dangerous
/ weapon in their hands and a snare
and an abomination from which liti-
gants suffer without any hope of re-
dress. On one bench you find judge
who is pleasant, loveable and kind
and whose whole life and nature en-
braces that which is just and whose
soul and energy is bent upon doing
that which is right and render to
every one his due and so conducts his
court as to accomplish that end; this
is the ideal judge. While on another
bench. you will find a Judge that is
the antipodes of the first judge in
every respect, and who still retains
the iron bedstead the rack, and the
thumb screw Each case brought be-
fore him must be tried upon his indi.
vidual arbitrary ideas. and If fair trial
is had It is usually accomplished by
accident.
The theory of judicial discretion is
! all right, but when you come TO put
1t in practice 1t fails to meet the fond
hopes of those interested in the ad-
ministratiop of the law The proper
theory of judicial discretion is that
It should be exercised the same by all
judges This cannot be done on ac-
count Of the difference in judges. In
one judicial department you find a
judge who is conslderate, painstaking
and who decides the cases which come
before him with dellberation. In an.
other judicial department you will
find a judge whose temperament
brings you back to the days of the
Middle Ages when might and power
prevailed over justice and right; where
the judge seems TO have no proper con
ception of what constitutes discre-
ton in the court. This is why II is
difficult TO have discretionary matters
I'm different courts passed upon prop
erly, and as it was originally intended
Because a certain judge likes or dis.
likes certain clients or certain attor-
neys, or because he is favorable or
unfavOrable to a certain contention be.
fore his court or because he will make
or lose votes or popularity, by his al
lowing or disallowing judicial discre
tlon in a certain case. should never
be allowed 10 influence the judge. But
such motives are considered by MANY
members OF the bar to weigh quite
heavily with some judges when the
subject Of granting or disallowing the,
exercise of judicial discretion is before
such courts.
We cannot suggest but two remedies
open for the correction OF this abuse
in the matter of judicial discretion;
one is that ample positive statutory
enactments be made covering cases In
which judicial discretion ought to be
exercised, and. the other is not 20 re.
elect persons as judges who are ar.
bitrary and unfit for its proper exer.
else.