Omaha daily bee., 1909-11-07
Government by Law.

During the campaign Just closed in
Nebraska, involving the election Of
three judges to sit on the supreme
bench, the various reasons urged in be-
half Of different candidates and the
loose discussion of the principles Of the
law and the function of the courts in
dulged in by those who we're inspired
by selfish purposes, could not but tend
to confuse the public mind as to what
constitutes a government of law. The
"nonpartisan" argument and the con-
tradictive Bipartisan" argument, and
the Substantial justice" plea, coupled
with the demand for. judges Of a sym
pathetic urn Of mind, are all based on
a misconception Of the position &C
corded the judiciary in our distribution
of Official power between the various
coordinate departments of govern
ment.
While the subject is still fresh, one
document brought out by the cam
paign, though without direct bearing
on any particular candidacy, should
not be permitted t escape attention to
its salient features. 1t is a letter ad-
dressed by Francis A. Brogan, presi-
dent of the Nebraska State Bar asso-
citation, to a newspaper at Lincoln, TAX
ing issue that the latter's assertion
that the demand of the hour is for
Judges tempersmentally inclined 10
favor so-called reform legislation, IRE
spective oil constitutional limitations.
From this letter we quote in abridge-
ment:
It cannot be too often repeated that this
is to be a government of law, not Of men
II is not the function Of q judge to modify
this system Of law. and its application tC
the concrete facts OF a case, to suit his
own views OF what the law ought to be.
II II Is once admitted that a judge MAJ
decide cases according 10 his own persona
view Of what you call substantial jus
tice," such a judge may become the mos
arbitrary instrument OF oppression. and thu
fact that he exercises his oppressive rule ii
favor Of the numerical majority, would
not palIiate his w~rongdoing. II he ma!
decide a case contrary 10 law, in favor o
an unfortunate who is injured on a rail
road train through his own oarelOssness
II he may decide for the poor man beoaus4
he is poor, and against the rich man be
cause he is rich, then he may decide
cause for one political party, because tina
is the one which has elected him. or 10
the other, because he has drawn his sup
port from hat quarter.
As opposed to that theory Of the judicla
function. l support the other view. tina
a judge should be the very thing you de
piore-a part OF the machinery OF the Law
II 1 read Alright the history OF the people
whose institutions have lowered on thi
continent, the highest product OF their ef
forts has been the system Of law whereof
the judge shall, as near as human frail
tiles will permit, decide each case accord
ing TO a general rule Of law. That is VIII
Justice and liberty are upon a higher plan
! In England and America than /
the world; that Is why an Aaron Burr wa
acquitted In America by the application I
his case OF settled principles. under IN
, administration Of a just judge. and 70 IN
lasting glory OF our law; while under othe
> systems and among people way by ten
permanent In their political action, a Drey
fus languished In an unmerited dungeoI
and a Ferrer, for proelaiming the intelle,
tual freedom Of the people, was shot I