Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1906-12-04
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merely the wishes of individuals OF
great political or financial power, but
the overwhelming tide Of public senti- II
ment, and the judge who does thus dis
regard public sentiment when it Is
wrong, who brushes aside the plea Of {
any special interest when the pleading
is not founded on righteousness, per-
forms the highest service to the coun- v
try. Such a judge is deserving OF all
honor, and all honor cannot be paid to
this wise and fearless judge If we per-
NIT the growth Of an absurd conyen-
ton which would forbid any criticism
Of the Judge Of another type, who
shows himself timid in the presence OF
arrogant disorder, or who on INSULT
cient grounds grants an Injunction
that does grave injustice, or who in
his capacity as construer. and there
fore in part a maker, of the law, In
fragrant fashion thwarts the cause Of
decent government. The Judge has a
power over which no review can be
exercised. He himself sits in review
upon the acts of both the executive
and legislative branches of the govern
ment Save in the most extraordinary
Of public opinion, and it is unwise to
maintain that public opinion in refer
ence to man with such power shall
neither be expressed, nor led.
The best judges have ever been fore
most to disciaim any immunity from
criticism. This has been true since the
days of the great English Lord Chan
cellor Parker, who said, Let all peo-
pie be at liberty to know whatI found
my judgment upon, that SO when I
have given it in any cause others may
be at liberty to Judge Of me-" The
prophecies of the case were set forth
with singular clearness and good tenn
per by Judge W. H. Taft when Unit
ed States circuit Judge. eleven years
ago, in 1895:
'eThe opportunity freely and publicly
to criticise judicial action is of vastly
more Importance to the body polite
than the immunity of courts and
judges from unjust aspersions and at
tack. Nothing tends more to render
anxiously solicitous to do exact justice
than the consciousness that every act
Of theirs is to be subjected to the intel
ligent scrutiny and candid criticism
of their fellow men. Such criticism is
beneficial in proportion as 1t is fair.
dispassionate, discrimina ting and based
on knowledge of sound legal yprin-
ciples. The comments made by learn
ed text writers tssltS by 4ssts acute ELI
tors of the various law reviews upon
judicial decisions are. therefore highly
useful. Such critics constitute more
or less Impartial tribunals of profess
sional opinion before which each judg-
ment is made to stand or fall on its
merits and thus exert a strong infu-
ence to secure uniformity Of decision.
But nonprofeSsional criticism also is
by no means without its uses even If
accompanied, as it often Is, by direct
attack upon the judicial fairness and
motives of the occupants of the bench.
for if the law is but the essence Of
common sense the protest Of many av-
erage men may evidence a defect in
judicial conclusion, though based on
the incest legal reasoning and pro-
foundest learning. The two important
elements of moral character in Judge
are an earnest desire to reach a just
conclusion and courage to enforce it
In so far as fear Of public comment
does not affect the courage Of a judge.
but only spurs him on to search his
conscience and to reach the result
which approves itself to his Utmost
heart, such comment serves a useful
purpose. There are few men, whether
they are judges for life OF for shorter
term, who do not prefer to earn and
hold the respect Of all and who cannot
be reached and made to pause and
deliberate by hostile public criticism.
In the case of judges having a life
tenure indeed, their very independence
makes the right freely to comment on
their decisions Of greater Importance
because it is the only practical and
available instrument In the hands Of
free people to keep such judges alive
they serve.
'On the other hand, the danger Of
destroying the proper influence Of ju-
dicfal decisions by creating unfounded
prejudices against the courts justifies
and requires that unjust attacks shall
be met and answered. Courts must III
timately rest their defense upon the In
herent strength Of the opinions they
deliver as the ground for their concur
sions and must trust to the calm and
deliberate Judgment of all the people
as their best Eindication."
Criticism of Judges. RiE Z:
There is one consideration which
should be taken into account by the
good people who carry a sound prop
osition to an excess Ia objecting To- any
criticism of a Judges decision The in
stinct of the American people as a
whole is sound In this matter They
will not subscribe to the doctrine that
any public servant Is to be above all
criticism If the best citizens. those
most comp tent TO express their JUL
ment in such matters. and above ali.