The sun. [volume] (New York [N.Y.]) 1833-1916, 1912-02-22

Give the Legislature an entirely free
hand and then provide by the Initiative
power to reverse or supplement the work
Of the Legislature should II ever become
necessary.
"a FOR INSTRUCTED RECALL.
As, to the recall. I do not believe that
there. 10 any great necessity for II as re-
CARDS short-term elective officers. On
abstract grounds was originally inclined
to be hostile to II. ] know Of one case
where It was actually used with mis-
chievous results. On the other hand, In
three cases In municipalities on the Pa
cific coast which have come to my knowl-
edge II was used with excellent results. I
believe II should be generally provided.
but with such restrictions as will make
II available only when there Is a wide
spread and genuine public feeling among
q majority Of the voters.
An Independent and upright judiciary
which feariessly stands for the right.
even AGAINST popular clamor. but which
also understands and sympathizes with
popular needs, IL 4 great asset Of popular
government There Is no public servant
and no private man whom I place above
a judge of the best type. and very few
whom rank beside him. I believe In
the cumulative value OF the law and In
Its value as an impersonal, disinterested
basis Of control. I believe in the neces-
sity for the courts Interpretation OF the
law as law without 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 downwards.
when say that every judge is bound to
consider two separate elements In his
decision Of a 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
elements into account is II possible to
apply the law as its spirit and intent
demand that II be applied. Both law and
life are to be considered In order that the
In John Marshalrs words, "a living In
strument and not a dead letter" Justice
between man and man. between the State
and its citizens, is a living thing. where
as legalistic justice is dead thing,
Moreover. never forget that the Judge is
just as much the servant Of the people as
any other official. OF course he must act
conscientiously So must every other
official. He must not do anything wrong
because there is popular clamor for X,
any more than under similar circum-
stances a governor or a legislator or a
public utilities commissioner should do
wrong. Each must follow his conscience.
even though to do so costs him his place.
but In their turn the people must follow
definitely decided on a given policy they
must have public servants who will carry
out that policy.
QUESTION oY ExPFpIENcy.
In some communities one method may
work we'll which In other communities
does not work well. and each community
should adopt and preserve or reject a
given method according TO It's practical
working. Therefore the question OF ap-
- ~
expediency merely. Each community has
right to try the experiment for itself
In whatever shape II pleases. Under the
conditions set forth in the extract from
the letter given above. would personally
have favored the recall OF the judges
both in California and in Missouri; for
no damage that could have been done by
the recall would have equalled the damage
done to the community by judges whose
conduct had reyoltcd not only the spiri,
Of justice. but the spirit of common sense.
] do not believe in adopting the recall
save as a last resort, when II has become
clearly evident that no other course will
achieve the desired result. But either the
recall will have to be adopted or else II
will have to be made much easier than
IL now Is to get rid, not merely OF bad
judge, but OF a judge who, however vir-
tuous. has grown so out of touch with
social needs and facts that he is unfit
longer TO render good service on the
bench. 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 remed,
at least as summary and as drastic a.
that embodied In the Massachusetts con.
stitution. And whenever IL be found in
actual practice that such remedy does no,
give the needed results. l would unhesi-
tatingly adopt the recall
THE RECALL OF DECISIONS
But there IL one kind of recall in which
very earnestly believe and the i'm.
mediate adoption OF which / urge. There
are sound reasons for being eau.
tious about the recall Of a good fudge
who has rendered an unwise and i'm.
proper decision. Every public servant
no matter how valuable. and not omittins
Washington or Lincoln or Marshall, a,
times makes mistakes. Therefore W,
should be cautious about recalling the
judge. and We should be cautious abou,
interfering In any way with the Judge II
decisions which he makes In the ordinar,
course as between individuals. But
when a Judge decides constitutions
question. when he decides what the peo
pie ss whole can or cannot do. the peo
pie should have the right to recall tha
decision II they think 1t wrong.
Under our Federal system the remed,
described Is difficult But the remedy Il
not difficult In a State. What the Su
preme Court of the nation decides to b,
law binds both the national and the Stat,
courts and all the people within tn,
boundaries Of the nation. But the de
cision Of a State court on a constitu
tional question should be subject to re
vision by the people Of the state. Agar
and again In the past Justice has beer
scandalousiy obstructed by State courts
declaring State laws In conflict with tn,
Federal Constitution. although the Su
preme Court Of the nation had never =,
decided or had even decided in a con
trary sense.
PEOPLE fiTTED FOR sELf-GovERNMENT.,
Many eminent lawyers VINO more OF
less frankly disbelieve in our entir,
American system Of government for by
and OF the people. violently antagoniz,
this proposal. They believe, and some
times assert. that the American peopl,
are not f1tted for popular government
and that II Is necessary to keep tn,
judiciary independent of the majort,
or of all the people :" that there must b.
no appeal to the people from the decision
OF court In any case, and that there
fore the Judses are to be established Al
sovereign rulers over the people. taxi
absolute issue with all those who hol,
| such position. I regard II as com
plete ncgation OF our whole system o
government; and II 1t became the domi
nant position In this country. II woul,
mean the absolute upsetting OF both tn
rights and the rule OF the people. II tn
American people are not fit for popua
government. and II they should OF righ
he the servants and not the masters O
the men whom they themselves put Il