Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1922-11-07
PUNISHMENT OF Crime
American Law Mostly For Benefit
Of Lawyers.
JUDGES BLAMED FOR SHORTCOMINGS
Ends of Justice too Often Defeated by
Absurd TeehnicaIities that Cannot
be Justified on a Basis of Reason or

| X. NJ. "annaIlakeI, ASSOCldIe JusliCe
of the Supreme Court of Ohio, in
the Saturday Evening Post.
Justice is the great concern Of man
on earth" These are the words OF
the immortal Webster. After a CEN
tury of American Jurisprudence we
would substitute for the word great
the word greatest"
Since the days Of John Marshal we
have said again and again, ours is
a government Of law-not of men,"
Ideally and theoretically this is
true, but practically and politically 1t
is false. The law is what the judge
says it is. The people make the consti-
tutions-that is, they have the first
word on the subject; the judges have
the last word. The legislatures make
the statutes-that is, they have the
first word; the judges have the last
word.
Under the power of constituting the
law, whether constitutional, statutory
or otherwise, the plain provisions of
the law are too frequently perverted
and ofttimes partially or even totally
defeated.
Justice in practical effect is what
the judge says it is. BY reason of the
judges tremendous power in America,
greater than in any other civilized
country in the world in its govern
mental effect, the personnel of the
judiciary, which is the greatest factor
in that power, should be highly i'm
portant.
In four-fifths of the states the peo-
pie elect the judges. Notwithstand-
ing the power Of the judge in govern
ment, having the last word, the people
rs a whole know less about the per-
sonal, professional and efficient quail
| ifcations of the candidates than of
any others running for office. Indeed
it very often happens that the mere
favorable name of a candidate wholly
unknown to the voters, furnishes the
majority for his nomination and cleo
ton.
What are the primary and para
mount qualifications for the judge
Common sense: common conscience;
uncommon backbone; humanitarian
spirit of the twentieth century a
VOL king knowledge of the fundamen-
tails of the law. The first four come
largely from birth, the last from
books. Such organizations as the
Cleveland Association for Criminal
Justice, or some other civic body,
could furnish the voters much useful
information to guide them as to these
qualifications of the various candi-
lates for the bench.
There should be no partiganship in
the choice of judges for the bench.
There is no such thing as Republican
justice or Democratic justice. They
ire not distinguishable.
! But there Is yet a higher considera-
lion in the choice of judges who will
he truly ministers of justice. The best
portrait of that paramount attribute is
found in the tenth chapter Of Luke,
where "A certain lawyer stood up, and
tempted him, saying, Master, what
shall do to inherit eternal life?"
How Readest Thou the Law?
This certain lawyer was evidently
a big lawyer; he asked n big question
of big Judge. The Judge did not
directly answer that question. Instead
he put another question to the law
year. "He said unto him, What is
written in the law"
We lawyers and judges know what
is written in the law. We read it and
are agreed as to the language in which
the law is written. This is true
whether the law be constitutional,
statutory or otherwise.
amongst us as to what is written in
the law. But the great Judge did not
stop with that question. He realized
that there was yet Il bigger question
back of it all, and he put it to the law
yer: How readest thou?"
Here is the real big question to be
directed to every lawyer and to every
Judge touching the law. Here is where
the differences arise among us. Do
we read it in a friendly, sympathetic
frame of mind, and in the plain phrases
and provisions it clearly contains or
do we read it in n hostile, adverse
frame of mind? Do we read it with
Z view of discovering by microscopic
or other like tests some hidden ambig-
uity or technicality in it, or do we seek
to apply the plain provisions of the
law sympathetically, so as to accom-
plish the intention and purpose of the
constitution makers and the statute
makers?
Different judges often take the same
constitution, the same statute, the
same decision that would appear per-
fectly plain to the layman, the COM
mon everyday average man, and raise
a perfect storm of doubt and uncer-
tainty about it through the application
of some technical rules Of construc-
ton.