Daily capital journal. (Salem, Oregon) 1903-1919, 1912-02-24

1t be applied Both law and life arc
to be considered in order that the law
and the constitution shall become. in
John Marshall's word, "a living instrn.
ment and not a dead letter" Justice
between man and man, between the
state and its citizens is a living thing
whereas legalistic justice is a dead
thing. Moreover, never forget that The
judge is just as much the servant If
the people as any other official OF
course he must act conseientiously
So must every other official. He mnst
not do anything wrong because there
is popular clamor for it. any more
than under similar circumstances a
governor or legislator or public
utilities commission should do wrong
Each must follow his conscience. even
though to do so costs him his nlace
But in their turn the people must fol-
low their conscience, and when they
have definitely decided on a given mol
icy 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 have described. to
Keep him on the bench as long as DOS
sible, and to keep off the bench and
II necessary, take off the bench the
wrong type of judge. In some COM
munities one method may work well
which in other communities does not
work we'll, and each community should
adopt and preserve or reject given
method according to its practical
working Therefore the question of
applying the recall in any shape is one
Of expediency merely. Each commun-
ity has a right to try the experiment
for itself in whatever shape it pleases.
Under the conditions set forth in the
extract from the letter given above, |
would personally have favored the re-
call Of the judges both in California
a nd in Missouri; for no damage that
could have been done by the recall
would have equaled the damage done
to the community by judges whose
conduct had revolted not only the
spirit of justice, but the spirit of COM
mon sense do not believe in adopt
ing the recall save as a last resort,
when 1t has become clearly evident
that no other course will achieve the
desired result. But either the recall
will have to be adopted or else 1t will
have to be made much easier than It
now is to get rid, not merely of bad
judge, but of Judge who, however
virtuous, has grown so out of touch
with social needs and facts that he is
unfit longer to render good service on
the bench. 1t Is nonsense to say that
4 impeachment meets the difficulty. In
actual practice we have found that inn
peachment does not work, that unfit
judges stay on the bench in spite of 1t,
and indeed because Of the fact that
1 Impeachment is the only remedy that
can be used against them. Where such
is the actual fact 1t is idle to discuss
the theory Of the case. Impeachment
as a remedy for the ills of which the
people justly complain is a complete
failure. A quicker, a more summary,
remedy is needed; some remedy at
least as summary and as drastic as
that embodied in the Massachusetts,
constitution, And whenever 1t be found
in actual practice that such remedy
does not give the needed results,
would unhesitatingly adopt the recall
But there is one kind Of recall in
which l very earnestly believe, and
the immediate adoption Of which
urge There are sound reasons for
being cautious about the recall of @
good Judge who has rendered an un-
wise and improper decision, Every
public servant, no matter how valn-
able, and not omitting Washington or
Lincoln or Marshall, at times makes
mistakes. Therefore we should be
cautious about recalling the Judge, and
we should be cautious about interfer-
ing in any way with the judge In de-
cislons which he makes in .he ordinary
course as between individuals But
when a judge decides constitutional
question, when he decides what the
people as a whole can or cannot do
the people should have the right 70
recall that decision II they think II
wrong. We should hold tho judiciary
in all respect bur II is both Ah'nrd
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