The advocate. [volume] (Charleston, W. Va.) 1901-1913, 1912-02-22

- IT
Of the people Instead OF BY Indirect
vote through an untrammeled electoral
college, so actual experience has con-
ytnced us that senators should be elect
ed by direct vote of the people instead
or Indirectly through the various Iegis,
latures., r.. ..-..,--..--..4
believe in the initiative and the ref
erenduIn, which should be used not to
destroy representative government, but
! to correct 1t whenever 1t becomes mis-
representative. Here again [ am con-
cerned not with theories, but, with &C..
taal facts. II in any state the people
are themselves satisfied with their
present representative system then it
Is, Of course, their right to keep that
system unchanged, and it is nobody's
business but theirs. But in actual
practice 1t has been found in very
many states that legislative bodies
nave not been responsive to tho popular
VIII; therefore I believe that the state
should provide for the possibility Of d.
rect popular action in order to make
good such legislative failure.
Recall of Judges.
AS to the recall, I do not believe that
there IS any great necessity for it as
regards short term elective officers. On
abstract grounds I was originally in
cfined to be hostile to it. I know of
one case where it was actually used
with mischievous results. On the 9TH
er hand, In three cases in munlcipali-
ties on the Pacific coast which have
come to my knowledge it was used
with excellent results. 1 believe It
should be generally provided, but with
such restrictions as will make it avail
able only when there is q widespread
and genuine public feeling among a
majority Of the voters
There remains the question Of the re-
call Of judges. One Of the ablest ju-
rists in the United States, a veteran In
service to the people, recently wrote
me Ms follows on this subject:
"There are two causes of the agita-
| ton for the recall as applied to
judges. FIrst, the administration Of
justice has withdrawn from life and
become artificial and technical. The
from office as 1t Is n recall Of the ad-
ministration Of justice back to life. so
that 1t shall become, as It ought to be-
! the most efficient Of MI agencies for
making this earth better place to live
In, Judges have set their rules above
life. Like the Pharisees Of old, they
have said. The people be accursed :;
they know not the law Chat is, our
'rule). Courts have repeatedly defeat
ed the aroused moral sentiment Of
| whole commons wealth. Take the ex-
ample Of the st. Louis boodIers. Their
guilt was plain and in the main con-
fesSed. The whole state was aroused
and outraged. BY an instinct that goes
to the very foundation Of oil social
order they demanded that the guilty be
punished. The boodlers were convict
ed, but the supreme court OF Missouri,
never questioning their guilt, set their
conviction aside upon purely technical
grounds. The same thing occurred in
, California. Nero, fiddling over burning
Rome, was n patriot and statesman
| in comparison with judges who thus
| trifie with and Illustrate the aroused
moral sentiment Of q great people, for
that sentiment is politically the vital
| breath, Of both state and nation. It 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
co"rtS 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. 1t Is the courts, not the
constitutions, that are at fault It IS
| only by the process which James Rus
sell Lowell when answering the critics
Of Lincoln called 'pettifogging the con-
sHt'ition' that constitutions which were
designed to protect society can thus be
made TO defeat the common good. Here
again the recall is Il recall Of the ad.
ADMINISTRATION Of justice back from aca-
uemical refnements TO social service"
An independent and upright judiciary
which fcarleSSly stands for the right
even against popular clamor, but which
also understands and sympathizes with
popular needs, IS q great asset Of DoDu-
lar government. There IS no public
servant and no private man whom
place above Judge OF the best type
and very few whom | rank beside him.
| believe in the cumulative value Of the
Jaw and IN IT'S value IT'S TUT impcr$oilal,
dlSintereStcd basis Of control. / be-
lieve in 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 II. But | agree with every great
ju%ist from Marshall downward, when
J say that every Judge is bound to CON
slider two separate elements in his dc
cl&ion OF q case, one ting terms Of tho
law md the other the conditions Of ac-
ttAl life to which the law Is to be an.