Devils Lake weekly world. (Devils Lake, N.D.) 1911-1914, 1912-02-23

never Questioning t{ieYr guilt, set their
conviction aside upon purely technical
grounds. The same thing occurred in
California. Nero, 1ddling over burning
Rome, was patriot and statesman
in comparison with judges who thus
trife with and Illustrate the aroused
moral sentiment Of a great people, for
that sentiment is politically the vital
breath Of both state and nation. 1t Is
to recall the administration of justice
back from such practices that the re-
cent agitation has arisen.
Second, by the abuse Of the power
to declare laws unconstitutional the
courts have become q lawmaking In
stead Of law enforcing agency. Here
again the settled will Of society to cor
rect confessed evils has been set at
naught by those who place metaphys-
les above life. It is the courts. not the
constitutions, that are at fault. 1t is
only by the process which James Rus
CELL Lowell when answering the critics
Of Lincoln called 'pettfogging the con-
stitution' that constitutions which were
designed to protect society can thus be
made to defeat the common good. Here
again the recall is a recall Of the ad-
@ilnistration Of Justice back from aca-
demical rehnements to social service"
An Independent and upright judiciary
which fearlessly stands for the right,
even against popular clamor, but which
also understands and sympathizes with
popular needs, Is great asset of popu-
lar government. There is no public
servant and no private man whom l
place above judge Of the best type
and very few whom rank beside him.
believe in the cumulative value Of the
law and in Its value as an fmpersonal,
disinterested basis Of control. be-
lieye lii the necessity for the courts
Interpretation OF the law as law with
out the power to change the law or to
substitute some other thing than; law
for 1t. But I agree with every great
jurist, from Marshall downward, when
I say that every judge Is bound to con-
slider two separate elements in his de-
cision of a case, one the terms Of the
law and the other the conditions Of &C
tual life to which the law is to be ap-
piled. Only by taking both Of these
elements into account IL 1t possible to
apply the law as its spirit and intent
demand that it be applied. Both law
and life. are to be considered in order
that the law and the constitution shall
become, in. John Marshall's words, "a
living instrument and not dead let.
ter" 5...,.
Justice between man and man, BE-
tween the state and its citizens, Is a
living thing, whereas legalistic Justice
10 a dead thing. Moreover, never for.
I get that the Judge is Just as much the
servant Of the people as any other
Dmclal. OF course he must act con.
sclentlQpsly. So must every other Oh:
cia1. He must not do anything wrong
because there Is popular clamor for It
any more than under similar circum-
stances a governor or legislator or a
public utilities commissioner should do
wrong. Each must follow his con-
science, even though to do so costs
him his place. But in their turn the
people must follow their conscience,
and when they have definitely decided
on given policy they must have pub
lie servants who will carry out that
policy. IT,.
| impeachment Failure.
Keep clearly in mind the distinction
between the end and the means to at
tain that end. Our aim is to get the
type of judge that have described, tt
keep him on the bench as long as pos
sible and to keep off the bench and, II
necessary, take off the bench tn
wrong type Of judge. Under the con
ditions set forth in the extract from
the letter gl'-en above would per
sonally have favored the recall Of TIL
Judges both In California and in Mis-
souri,, for no damage that could have
been done by the recall would have
equaled the damage done to the com
munity by judges whose conduct hat
| ACfOAlCO AOC Willy CAAS GpAAAS VI Jo'AANN
but the spirit Of common sense. I d
not believe in adopting the recall saw
as q last resort, when 1t has become
clearly evident that no other course
will achieve the desired result Blu
either the recall will have to be adopt
ed or else It will have to be made
much easier than 1t now is to get ris
not merely of a bad judge, but of ;
Judge who. however virtuous, ha
grown SO out of touch with socia
needs and facts that he IS unfit longe
to render good service on the bench
It Is nonsense to say that impeach
ment meets the difficulty. In actua
practice we have found that impeach
ment does not work; that unfit judge
stay on the bench in spite Of it. I'm
parchment as remedy for the ills o
which the people justly complain is
complete failure. A quicker, NOR
summary, remedy Is needed.
But there Is one kind of recall 1
, which very earnestly believe and tn
immediate adoption of which urge
There are sound reasons for being cat
tous about the recall Of good judg
who han rendered an uQXs.s2 aod IL