Martinsburg herald. [volume] (Martinsburg, W. Va.) 1881-1920, 1912-02-24


ics above life. 1t Is the courts, not the
constitutions, that are at fault. 1t Is
only by the process which James Rus
sell Lowell when answering the critics
of Lincoln called 'pettifogging 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-
ministration Of justice back from aea-
demical refirements to social service"
An independent and upright Judiciary
which fearIessly 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
place above a judge Of the best type
and very few whom I rank beside him.
] believe I'm the cumulative value of the
/ law and in it's value as an impersonal,
disinterested basis of control / be
4 lieye 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 it. But / agree with every great
jurist from Marshall downward, when
| say that every judge Is bound to con
slider two separate elements in his de-
/ cision of case, one the terms of the
law and the other the conditions Of ac
tual life to which the law is to be APP
piled. Only by taking both of these
elements into account is it 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"
Justice between man and man, be-
tween the state and its citizens, is
living thing, whereas legalistic justice
is a dead thing. Moreover, never fer
get that the judge is just as much the
servant of the people as any otlles
official. OF course he must act con
scientiously. So must every other Off.
cial. He must not do anything wronr
because there is popular clamor for i
ahy HUH IIdl ciiilldi Ni(uAlJ-
stances a governor or legislator or Il
public utilities commissioner should d.
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 a given policy they must have pub
lie servants who will carry out that
policy.
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, to
keep him ON the bench as long as pos
sible and to keep off the bench and, IL
necessary, take off the bench the
wrong type of judge. Under the con-
dltions set forth In the extract from
the letter given above 1 would per-
sonally have favored the recall of the
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 had
revolted not only the spirit of Justice.
but the spirit of common sense. / do
not believe In adopting the recall save
as 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 adopt
ed or else it will have to be made
much easier than It now Is to get rid
not merely of a bad judge, but of a
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 impeach-
ment meets the difficulty. In actual
practice we have found that impeach-
ment does not work; that unfit judges
stay on the bench in spite of 1t. I'm
parchment as remedy for the Ills Of
which the people justly complain is a
complete failure. A quicker, a more
summary, remedy is needed.
But there is one kind of recall in
which l very earnestly believe and the
immediate adoption of which l urge.
There are sound reasons for being eau
tious about the recall of good judge
who has rendered an unwse and i'm
proper decision. Every public servant,
no matter how valuable, and not omit
ting Washington or Lincoln or Mar
shall, at times makes mistakes; there
fore we should be cautious about re-
calling the judge, and we should be
cautious about interfering in any way
with the judge in decisions which he
makes in the ordinary course as be-
tween 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 to recall that decision
IL they think it wrong. We should hold
the judiciary in all respect, but it Is
both absurd and degrading to make a
fetish Of n judge or of any one else.
Abraham Lincoln said in his first inau-
or1Iral. eff the Dolicy of the government