The Detroit times., 1912-02-21
Rooseyelf Comes Out For SsOceping
Reforms In Speech In Columbus

1
one case where IL was actually use,
| with mischievous results. on the 9th
( err hand. I'm three cases In municipali
/ ties on the Pacific Coast which hav'
| come 70 my knowledge, 1t was uses
with excellent results believe i
generality TSEstITppt NFtl
! such restrictions as Will make IL avail
1 able only when there is widespread
and genuine public feeling among
majority of the voters.
There remains the question OF TIT
] recall OF judges. One OF the ablest 1ur
lists in the United States. veteran IN
service TO the people, recently wrote
me as follows on this subject:
There are two causes OF the aglta'
| ton for the recall as applied 10 judges
First, the administration OF Justice has
| withdrawn from life and become arti'
nclal and technical The recall is mo-
so much a recall OF Judges from office
as II Is recall OF the administration
OF justice back 10 life. so that II shall
| become as IL 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 Pharfsees- OF old. they have
| said. 'rhe people be accursed. they
know not the law (that Is our 'ruleo.
/ Courts have repeatedly defeated the
aroused moral sentiment OF a whole
commonwealth. Take the example OF
\ the ST. Louis boodlefs. Their guilt
was plain, and In the main. confessed.
| The whole stats-Sasr aroused and out
ragged BY an instinct that goes 10 the
very foundation OF ali. social order they
demanded that the guilty be punished
The boodlers were convicted. but the
supreme court OF Missouri, never ques-
ticning their guilt set heir conviction
aside upon purely technical grounds
Tho same thing occurred In California.
Nero. fddling over burning Rome. WAS
patriot and "A statesman In comreri-
son with judges who thus trifie with
n nd "a ha
merit OF a great people, for that senti-
ment Is politically the vital breath OF
both state and nation. II Is TO recall
the administration OF justice back from
suth practices that the recent agitation
has arisen.
Second. by the abuse OF the power
TO declare laws unconstitutional the
courts have become lawmaking, in
stead OF "A lawenforcing, agency. Here
again the settled will OF society TO cor
rec. confessed evils has been set at
naught by those. who place metaphys-
les above life, IL is the courts, not the
constitution, that are at fault. IL is
only by the process which James Rus
sell Lowell, when answering the crit
les OF Lincoln, called 'pettifogging the
constitution, that constitutions which
were designed TO. protect society can
thus be made TO defeat the common
good. Here again the recall Is re-
call OF the administration OF justice
back from academical refnements TO
scci6l service
An independent and upright judici-
airy which fearlessly stands for the
right. even against popular clamor. but
which also understands and sympathiz-
es with popular needs, Is n great asset
OF popular government. There IL no
public servant and no private man
whom / place above Judge OF the best
type. and very few whom | rank be-
size him. l believe In the cumulativ
value OF the law and In it's value as an
troll. i believe In the necessity 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 IT, But ! agree with every
1urist, from Marshall downwards, when
say that every Judge is bound to con-
slider two separate elements in his de-
clslon 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 IL possible to
apply the law as It's spirit and intent
demand that II be applied. Both law
anC life are 10 be considered in order
that the law and the constitution shall
become. in John MarshalTs word, "a
living instrument and not dead let
ter" Justice between man and man,
between the state and its citizens, Is
living thing, whereas legalistic JUS
ticc Is a dead thing. Moreover, never
forget that the Judge is just as mucn
the servant OF the people as any other
official. or course he must act con-
scientiously. So must every other Of
ticial He must not do anything wong
bt cause there is popular clamor for II.
airy more than under similar circum-
stances governor or legislator or
Tublic 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 peo-
pie must follow their conscience, and
n. l.. n ii 80 la1
given policy they must have. public
servants who will carry out that poll
Icy.
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,
10 keep him on the bench as long as
possible, and TO keep on the bench
and, IL necessary, take on the bench
the wrong type OF Judge. In some
well which in other communities does
not work well. and each community
should adopt and preserve or reject a
givep method according to Its practi-
OF applying the recall In any shape Is
one or expediency merely. Each COM
munity has a right to try the expert
ment for itself in whatever shape II
pleas SEES Under the conditions set forth
In the extract from the letter given
above, i would personally have favored
the recall OF the judges both in Cali
fornia and in Missouri; for no damage
that could have been done by the re-
call would have equaled the damage
done TO the community by Judges
whose conduct had revolted not only
the spirit OF justice, but he spirit OF
common sense. do not believe I'm
adopting the recall save as a last re-
sort, when II has become clearly evil
dent that no other course will achieve
the desired result. But either the re-
call will have 10 be adopted or else II
Will have to be made~much easier than
1t now is to get ride. not merely OF a
bad Judge, but OF a Judge who, how
ever virtuous. has grown so out OF
tough with social needs and facts that
he is unit longer 10 render good SER
vice on the bench IL IL nonsense TO.
sly that impeachments meets the diff
nculty. In actual practice we have
found that impeachment does not work.
that UNIT judges stay on the bench I'm
spite OF IL. and indeed because OF the
fret that Impeachment ~ The. only
that can be used against them
Where such Is the actual fact 10 In idle
TO discuss the theory OF the case. I'm
cachment as a remedy for the Ills OF
which the people Justly complain Is a
complete failure. A quicker. more
summary. remedy is needed: some rem
edy at least as summary and az dras-
tic az that embodied in the Massachu-
sets constitution And whenever II be
found In actual practice that such rem
edy does not give the needed results. /
would unhesitatingly adopt the recall
But there Is one kind OF recall In
which very earnestly believe and
the Immediate adoption OF which /
urge. There are sound reasons for be-
Ing cautious about the recall OF a good
tuCge who has rendered an unwlse and
improper decision Every public ser
want. no matter how valuable, and not