Evening journal., 1912-02-21

of the people instead Of by indirect
vote through an untrammeled electoral
college, so actual experience has con-
vinced us that senators should be elect
ed by direct vote of the people instead
of indirectly through the various legis-
latures.
I believe in the initiative and the ref
erendum, which should be used not to
destroy representative government, but
to correct 1t whenever it becomes mis-
representative. Here again 1 am con-
cerned not with theories. but with ac-
tual facts. If 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 It has been found in very
many states that legislative bodies
have not been responsive to the popular
will: therefore believe that the state
should provide for the possibility of di-
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
clined to be hostile to it. I know Of
one case where 1t was actually used
with mischievous results. On the 9th
er hand. in three cases in municipali-
ties on the Pacific coast which have
come to my knowledge it was used
with excellent results. l believe it
should be generally provided, but with
such restrictions as will make II avail
able only when there is a 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, veteran in
service to the people, recently wrote
me as follows on this subject:
There are two causes of the agita-
tion for the recall as applied to
judges. First, the administration Of
Justice has withdrawn from life and
become artificial and technical. The
recall is not so much recall of judges
from office as It is a recall of the ad-
ministration Of justice back to life, so
that It shall become, as it ought to be,
the most efficient of all 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 that is, our
'ruleD. Courts have repeatedly defeat
ed the aroused moral sentiment OF a
whole commonwealth. Take the ex-
ample OF the st. Louis boodlers. Their
guilt was plain and in the main con
fessed. The whole state was aroused
and outraged BY an instinct that goes
70 the very foundation Of all socia
order they demanded that the guilty b'
punished. The boodlers were convict
ed, but the supreme court OF Missouri
never questioning their guilt, set thei
conviction aside upon purely technica
grounds. The same thing occurred II
california. Nero adding over burning
Rome, was a patriot and a statesman
in comparison with judges who thu
trihe with and Illustrate the aroused
moral sentiment of a great people, TO
that sentiment is politically the vita
breath of both state and nation. 1t j
to recall the administration Of justice
back from such practices that the re
cent agitation has arisen.
Second, by the abuse Of the powe
TO declare laws unconstitutional tn
coufts have become lawmaking IN
stead Of a law enforcing agency. Her
again the settled will of society TO col
rect confessed evils has been set a
5 naught by those who place metaphy'
ics above life. II is the courts. not tn
constitutions, that are at fault. IL ]
only by the process which James Rus
sell Lowell when answering the critic
of Lincoln called 'pettifogging the COZ
stltution' that constitutions which wer
designed to protect society can thus
made to defeat the common good. Her
again the recall is a recall of the aC
ministration OF justice back from ac'
demical refinements TO social service
An independent and upright judiciar
which fearlessly stands for the righ
even against popular clamor, but whic
{ also understands and sympathizes wit
popular needs, is a great asset Of popl
lar government. There is no publ
servant and no private man whom
+. place above a judge of the best tyI
) and very few whom l rank beside hin
= L,1fo,~o a., tl,c c,,v,,,,fo tfro x-olsra ~ FL
Q law and in its value as an impersona
K disinterested basis Of control b
d lieve in the necessity for the court
J. Interpretation Of the law as law wit
p out the power to change the law or
IS substitute some other thing than la
. for IT, But l agree with every gre'
: jurlst. from Marshall downward, whe
d 7 say that every judge is bound to CO.
Q slider two separate elements in his d
q cision OF a case, one the terms OF Il
u law and the other the conditions of a
= tual life to which the law is to be a
n piled. Only by taking both Of the
D. elements into account IS It possible
n apply the law as its spirit and intel
q demand that it be applied. Both la
and life are TO be considered in ord
that the law and the constitution shf
l. become, in John Marshalls words,
p living instrument and not a dead Il
Ie ter"
Al Justice between man and man,
I tween the state and its citizens, is
+ living thing, whereas legalistic justi
II is a dead thing. Moreover. never 70
? get that the judge is just as much Il
/ servant Of the people as any 9th