Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1912-02-22


have in theft ]iands the facilities to
make good the failure.
sand I urge you not to try to put
constitutional letters On the Legisa-
ture. as so many constitution makers
have recently done. Such action on
Your part would invite the courts 10
render nugatory every legislative act
to better social conditions. Give the
Legislature an entirely free hand and
then provide by the initiative and
referendum that the people shall have
power to reverse or supplement the
work Of the Legislature should it ever
become necessary.
"As to recall, / do not believe that
there is any great necessity for it as
regards short term elective officers.
There remains the question of the re-
call of judges.
IAN independent and upright judiciary
which fearless1y stands for the right,
even against popular clamor. but which
also understands and sympathizes with
popular needs. is a great asset of popu-
lar government. ! believe in the neces-
sitv for the courts Interpretation of the
law as law without the power to change
the law or to substitute some other
every great jurist. from Marshall down
wards when I say that every Judge is
bound to consider two separate elements
in his decision of case. one the terms
of the law, and the other the conditions
of actual life to which the law is to be
applied Only by taking both of these ee-
ments into account is it possible to APP
ply the law as it's spirit and intent de-
mand that it be applied
Moreover, never forget that the judge
is just as much the servant of the peo-
pie as any other official. OF course he
must act conscientiously, He must not
do anything wrong because there is pop
ular clamor for it, any more than under
similar circumstances governor or
legislator or a public utilities commits
sioner should do wrong. But in their
turn the people must follow their con-
science, and when they have definitely
decided on given policy they must have
public servants who will carry out that
policy.
Keep clearly in mind the distinction
between the end and the means to attain
that end Our aim is to get the type
of judge that I have described, to keep
him on the bench as long as possible.
and to keep off the bench, and if neces-
sary take off the bench, the wrong type
of judge. The question of applying the
recall in any shape is one of expediency
merely Each community has right 20
try the experiment for itself in whatever
shape it pleases.
Il do not believe in adopting the re-
call save as a last resort, when it has
become clearly evident that no other
course will achieve the desired result.
But either the recall will have to be
adopted or else It will have to be
made much easier than it now is to get
rid, not merely of a Dad judge but of
Judge who, however virtuous, has
grown so out of touch with social needs
and facts that he is unfit longer to rem
der good service on the bench. 1t is nom
sense to say that impeachment meets
the difficulty. In actual practice We have
found that impeachment does not work,
that unfit judges stay on the bench in
spite of it, and indeed, because of the
fact that impeachment is the only rem
edy that can be used against them.
"A quicker. a more summary, remedy
is needed: some REMEDY at least as sum
airy and as drastic as that embodied in
the Massachusetts Constitution. And
whenever it be found in actual practice
that such remedy does not give the need
ed results, 1 would unhesitatingly adopt
the recall.
But there is one kind of recall in
which 1 very earnestly believe, and the
immediate adoption of which | urge.
When a judge decides a Constitutional
question, when he decides what the peo-
pie as a whole can or cannot do, the
people should have the right to recall
that decision if they think it wrong. We
should hold the judiciary in all respect
but it is both absurd and degrading 20
make fetish of a judge or of any one
else.
MANY eminent lawyers believe, ana
sometimes assert, that the American
people are not fitted for popular gov
eminent, and that it is necessary to Keep
the judiciary independent of the majori-
ty or of all the people, that there must
be no appeal to the people from the de-
cision of a court in any case; and that
therefore the judges are TO be estab-
lished as sovereign rulers over the
people.
Il take absolute issue with all those
who hold such a position. / regard it as
II COIlpitle HtSdNlull VI OuI NIble SNS-
TEN of government and if it became
the dominant position in this country
it would mean the absolute upsetting of
both the rights and the rule of the peo-
pie. If the American people are not fit
for popular government, and if they
should of right be the servants and not
the masters of the men whom they them
selves put in office. then Lincoln's work
was wasted and the whole system of
government upon which this great Demo-
cratic republic rests is a failure. | be-
lieve, on the contrary, with all my heart
that the American people are fit for COM
plete self-government, and that, in spite
of all our failings and shortcomings we
of this republic have more nearly real
lied than any other people on earth the
ideal of justice attained through genuine
popular rule.
"If the courts have the final say-so on
all legislative acts, and If no appeal can
lie from them to the people, then they
are the irresponsible masters of the peo-
pie. In other words. those who take this
position, hold that the people have enough
/ a