The citizen. (Honesdale, Pa.) 1908-1914, 1912-02-23

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
cd by direct vote of the people instead
Of Indirectly through the various legis-
latures.
believe in the initiative and the ref
erendum. which should be used not to
destroy representative government, bnt
to correct It whenever It becomes mis-
representative. Here again 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 1t
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, do not believe that
there is any great necessity for it as
regards short term elective officers. On
abstract grounds l was originally in
clined to be hostile to It. know of
one case where It 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. believe Il
should be generally provided, but with
such restrictions as will make it avail
able only when there Is a widespread
and genuine public feeling among
majority Of the voters.
There remains the question of the re
Gull Of judges. One Of the ablest ju-
rists in the United States, a veteran in
service to the people, recently wrote
me as 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justice has withdrawn from life and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
recall is not so much recall of judges
from Office as it is a recall Of the ad
ministration of Justice back to life, 50
that it shall become, as 1t 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 Cthat Is, our
'ruleO. 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
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, fiddling over burning
Rome, was q patriot and a statesman
in comparison with judges who thus
trife with and frustrate the aroused
moral sentiment Of q great people, for
that sentiment is politically the vital
breath Of both state and nation. 1t 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
l,yr or if11t
courts have become a lawmaking in
stead Of law enforcing agency. Here
again the settled will of society 80 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. 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 aca-
demical retnements to social service"
An independent and upright judiciary
which feareSsly 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 l
place above a judge of the best type
and very few whom l rank beside him.
| believe in the cumulative value Of the
law and in its value as an impersonal.
d!Sinterested 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 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 a case, one the terms of the
law and the other the conditions of ac-
tual life to which the law IS to be ap-
Piled. Only by taking both of these
elements into account IS 1t possible to
apply the law as its spirit and intent
L.. I l.,