The Bridgeport evening farmer., 1912-02-21

guilt was plain ana In the na1n cOu-
 fessed. The whole state was aroused
 and outraged. By an instinct that goes
 to the very foundation of all 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 1ddling over burning
 Rome. was a patriot and a statesman in comparison with judges who thus
 trifle with and frustrate the aroused
 moral sentiment of a 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 courts have become a lawmaking in- stead of a 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- ics above life. It 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- 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 aca- demical refnements to social service"
 An independent and upright Judiciary which fearlessly stands for the right, even against popular clamoF, but which also understands and sympathizes with popular needs, is 8 great asset of popu- lar government There is no public servant ana no private man whom place above a judge of the best type and very few whom I rank beside him. believe in the cumulative value of the law and in it's value as an impersonal, disinterested basis of control l be-
 ieve 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 ts bound to con- slider two separate clements in his de cision Of a case, one the terms of the law and the other the conditions of ac tuaI life to which the law is to be ap- piled. Only by 1aking 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. MarshaTrs words. "a living instrument and not a dead let ter"
 Justice between man and man, be- tween the state and its citizens, is a living thing, whereas legalistic justice is dead thing. Moreover, never for get that the judge Is just as much the servant of the people as any other official. Of course he must act con EcientiousIy. So must every other off ciaI. He must not do anything wrong because there is popular clamor for it any more than under similar circum- stances a governor or a 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 a given policy they must have pub lie servants who will carry out that policy.
 lmPeSchmenc F allure
 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, if necessary, take of the bench the wrong type of judge. Under the con- ditions set forth in the extract from %ba 1rfx- sonaIIy 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 spiris of common seSse I do not believe in adopting the recall save as a 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 1 ed or else 1t 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 l needs and facts that he is unfit longer to render good service on the bench. 1 It is nonsense to say that impeach- | ment meets the difficulty. In actual l practice we have found that impeach- l ment does not work; that unfit judges | stay on the bench in spite of it. Im- | peachment as remedy for the ills of | which the people justly complain is a complete failure. A quicker, a more l summary, remedy is needed.
 But there is one kind of recall In | which I very earnestly believe and the | immediate adoption of which I urge. There are sound reasons for being eau | tious about the recall of a good judge l who has rendered an unwise and inn 1 proper decision. Every public servant, | no matter how valuable, and not omit l ting Washington or Lincoln or Mar 1 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 |