Atlanta semi-weekly journal. (Atlanta, Ga.) 1898-1920, 1912-02-23


fail truly to represent the people on some
matter Of sufficient Importance to rouse
popular interest, then the people shall
have in their hands the facilities to make
good the failure.
And I urge you not to try to put
constitutional letters on the legislature,
as so many constitution-makers have re-
Gently done. Such action on your part
would invite the courts to render nuga-
tory every legislative act to better social
conditions. Give the legislature an en-
tirely free hand; and then provide by the
initiative and referendum that the peo-
pie shall have power to reverse or sup
plement the work of the legislature
should it ever become necessary.
RECALL OF JUDGES.
"As to the recall. 1 do not believe that
there is any great necessity for it as re-
CARDS short-term elective officers. There
remains the question of the recall OF
judges.
IAN independent and upright judiciary
which fearlessly stands for the right,
even against popular clamor, but which
also understands and sympathizes with
popular needs. is a great asset OF popu-
lar government I believe in the neces-
law as law without the power to change
the law or to substitute some other
thing than law for it. But I agree with
every great jurist, from Marshall down.
wards. when l 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
S,,Ao &c tn
apply the law as it's spirit and intent
demand that it be applied.
Moreover, never forget that the judge
is just as much the servant of the peo-
pie as any other official. OF course he
must act conscientiously. He must not
do anything wrong because there is pop
ular clamor for IT, any more than under
similar circumstances a governor or a
legislator or a public utilities commits
sioner should do wrong. But in their
turn the people must follow their con-
science, and when they have definitely
decided on a. given policy they must
have public servants who will carry out
that policy.
GOOD AND BAD JUDGES.
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 I have described,
sible. and to keep off the bench and,
If necessary, take off the bench the
wrong type of judge. The question of
applying the recall in any shape is one
of expediency merely. Each community
has a right to try the experiment for
itself in whatever shape it pleases.
II do not believe in adopting the re-
call save as last resort, when it has
become clearly evident that no other
=
But either the recall will have to be
adopted 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 vitruous, 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 nom
sense to say. that impeachment meets the
difficulty. In actual practice we have
found that impeachment does not work.
that unfit judges stay on the bench in
spite of 1t. and. indeed, because of the
! fact that impeachment Is the only rene
| dy that can be used against them.
] "a quicker, a more summary, remedy
| is needed; some remedy at least as
! summary and as drastic as that en-
| bodied in the Massachusetts constitu-
| ton And whenever it be found in ac-
/ tual practice that such remedy does not
! give the needed results, would IN
hesitatingly adopt the recall.
''But there is one kind of recall In
which 1 very earnestly believe, and The
! immediate adoption of which I urge
When a judge decides a constitutional
| question, when he decides what the
people as a whole can or cannot do,
| the people should have the right t.
recall that decision if they think it
wrong. We should hold the judiciary
| in all respect; but it is both absurd
and degrading to make fetish of a judge
or of any one else.
i MANY eminent lawyers believe, and
sometimes assert. that the American
people are not fitted for popular gov
eminent, and that it is necessary to
keep the judiciary independent of the
majority or of all the people,; that there
must be no appeal to the people from
| the decision of a court In any case;
and that, therefore, the judges are to
be established as sovereign rulers over
the people.
81 take absolute issue with all those
who hold such a position. regard it
as a complete negation of our whole
system of government; and if it became
the dominant position in this country,
| It would mean the absolute upsetting of
both the rights and the rule of the
people. If the American people are not
fit for popular government, and if they
should of right be the servants and
not the masters of the men whom they
themselves put in Office, then LincoIn's