Evening star. [volume] (Washington, D.C.) 1854-1972, 1912-02-21

- 1ASL4N0 LAW W lXA
up with a multitude Of others so that
they are none of them important enough
day citizen. The crook in public life
is not ordinarily the man whom the
people themselves elect directly to high
ly important and responsible position.
fessional lobbyist thrive most rankly
under 2 system which provides q multi
tude OF elective officers, Of such divided
responsibility and of such obscurity that
the public knows. and can know. but
little as to their duties and the way they
perform them.
''The people have nothing whatever to
fear from giving any public servant
power in so long as they retain their
own power to hold him accountable for
to him. You will get best service where
you elect only a few men. and where
each man has his definite duties and re-
Tsr III III. and is Obliged tSst tho
people know who he is and what he
Is doing. and have the Information that
will enable them to hold him to account
for his stewardship
II believe in providing for direct nomi-
nations by the people, including therein
direct preferential primaries for the cleo
ton of delegates to the national nominal
ing conventions. I believe in the election
Of United States senator's by direct vote.
I believe in the initiative and the refer
endun, which should be used not to de-
stroy representative government, but to
correct whenever it becomes misrepre-
sentative.
When Representatives Fail.
81 believe that the initiative and ref
erendum should be used, not as substi-
tutes for representative government, but
as methods Of making such government
really representative. Action by the
initiative or referendum ought not to be
the normal way of legislation; but the
power to take it should be provided in
the Constitution. so that if the repre-
pie on some matter of sufficient i'm
portance to rouse popular interest, then
the people shall have in their hands the
facilities to make good the failure.
stitutional 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 &C. act to better So
entirely free hand, and then provide by
the initiative and referendum that the
people shall have power to reverse or
supplement the work Of the legislature
should it ever become necessary.
Recall Of Judges.
there is any real necessity for it as
regards short-term elective officers. There
remains the question of the recall Of
judges.
can Independent and upright judiciary
which fearlessly stands for the right,
even against popular clamor but which
xrHfh
popular needs, Is a great asset of popu-
lar government. I believe in the neces-
sity for the courts Interpretation of the
law as law without the power to change
the law. or to substitute some other thing
than law for 1t. But I agree with every
great jurist, from Marshall downward.
when / say that every judge is bound to
consider two separate elements In his de-
cision of a case, one the terms OF the
law, and the other the conditions Of
actual life to which the law Is to be ap-
piled. Only by taking both of these ele-
ments into account is it possible to apply
the law as its spirit and intent demand
that it be applied.
Moreover. never forget that the judge
is just as much the servant of the people
as any other official. OF course. he must
act conscientiously. He must not do any
thing wrong because there is popular
clamor for it, any more than under SINH
lar circumstances a governor or q leg1s-
should do wrong. But in their turn the
people must follow their conscience, and
when they have definitely decided on
given policy they must have public serv-
ants who will carry out that policy.
keep clearly in mind the distinction
between the end and the means that at
tain that end. Our aim Is to get the type
of Judge that I have described, to keep
him on the bench as long as possible, ana
to keep off the bench and. If necessary,
40 %1A
Judge The question OF applying the re-
call in any shape is one Of expectancy
merely. Each community has q right to
try the experiment for itself in whatever
shape 1t pleases.
Impeachment Not Adequate.
81 do not believe in adopting the recall
save as last resort. when 1t has become
clearly evident that no other course will
achieve the desired result. But either the
recall will have to be adopted or else 1t
will have to be made much easier than 1t
now is to get rid. not merely OF pad
Judge but Of judge who, however vir-
tuous. has grown so out of touch with with
social needs and facts that he Is unfit
longer to render good service on the
bench. It is nonsense to say that i'm
parchment meets the difhculty In actuai
practice we have found that impeachment
does
the bench in spite of it. and. indeed, be-
cause of the fact that impeachment Is the
only remedy 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 embodied In the
constitution. And when
ever It be found in actual practice that
such remedy does not give the needed re-
suits, I would unhesitatingly ADOPT the
recall.
"But there is one kind Of recall in which
I very earnestly believe, and the 1mmedi-
ate adoption of which / urge. When a
Judge decides a constitutional question,
when he decides what the people as q
whole can or cannot do the people should
have the right to recall that decision II
they think it wrong. We should hold the
judiciary in all respect, but it is both alb
surd and degrading to make fetish or a
Judge or Of any one else.
Lincoln and the bred Scott Case.
Lincoln actually applied in successful
fashion the principle Of the recall In the
bred Scott case. He denounced the Su-
preme Court for that iniquitous decision
in language much stronger than l have
ever used in criticising any court and