teaching, and, ar-cordlng to the decision
f Judge Kulllvan. In forbidden." Mr.
Rush did not dispute this point. Tnu ar
Imply denying something which he never
asserted. Tou are assuming something
8 existing In Mr. Hush's mind which
was not there at all.
Mr. Ma honey then very lamely com
ments on Mr. Hush's criticism of Judge
Rulll van's reference to Uie Pennsylvania
case. "It should be remembered that
Judge Bulllvan was not called on to de
cide a theological question, nor was he
railed on In any way to make a pro
nouncement upon the number of differ
ences In the two versions. lie waa sim
ply calling attention to the fact that
there are differences and used the refer
ence to the Pennsylvania case to support
his recital of that fact." What Induceo
the Judge. Mr. Mahoney, to refer to those
points or d'.Terence If those points of dif
ference are a matter of Indifference In
the view of the law? It Is this dubious.
Uoutile-tongued. Oracle-of-Delphl method
of delivering bin decision that has led to
nil this misunderstanding the decision of
the Judge. One moment the Judge Is rep
resented as taking a merely secular view
of the Bible when he says the law does
not exclude it from the schools; the next
moment he says something, or is repre
sented as saying something, which de
stroys that construction of his meaning
altogether.
Mr. Rush makes the statement that
those who advocate the reading of the
ItiMe in the schools are and always have
been "ardent and ur.scruplous sec
tarians." Mr. Mahoney seems to think
that Mr. Rush will have to bear the aw
ful responsibility of this statement to
the grave, and carry it alone. Mr. Ma
honey himself then proceeds to make an
assertion Just as broad and sweeping.
He says: "This Is not the opinion of his
fellow Catholics." How do you know.
Mr. Mahoney? When did you make a
poll or the Catholics on this question?
Mr. Mahoney then says: "We know. too.
that there are million of ardent sec
tarians who are not unscrupulous." As
Mr. Rush did not say that all ardent
ectariais are unscrupulous, why did you
commit this elegant piece or sophistry?
Was It to prejudice Mr. Rush?
Mr. Mar.hoiwy again: "But Mr. Rush
would proscribe the Bible altogether, be
cause in the hands of a teacher who
wishes to accomplish such a result it
may be made the Instrument or sectarian
teaching. This reason night be urged
against the teaching r.r history. English
literature." etc. As the teaching or his
tory. English literature, etc., is not Tor
tidden by the constitution, as the teach
ing of religion Js. you are about as so
phistical here as Judge Sullivan fcas
proved himself to he. The Bible Is pro
fessedly . religious book. It deals di
rectly and'' nertssarily with religion. A
olcrme of history does not.
Re'lgious discussions have no legiti
mate place in American politics, and
whoever injects them Is assuming a
4 Dem Com.. a cmfwypayayayayo
grave responsibility and accepting
chances of doing great wrong." This is
one of those commonplace remarks that
are often put in to fill up an article when
argument runs short. Religion being the
most vital and influential moral force
that can affect man. and with which he
has been concerned since the beginning
cf the world, it has. it does and it will
enter into politics. This may sometimes
he inconvenient for the selfish politician,
rmt it cannot be hc!ped. Mr. Mahoney
knows well, as he la fresh from a case
In point, who are doing the injecting
business. He -would, of course. lca'e it
to be inferred or he would Insinuate that
Sir. Rush is one of the injectors. If the
calling cf attention to the miserable, un
satisfactory decision of a sophistical
Judge be injecting religion Into politics,
then certainly Mr. Rush Is guilty of in
jecting. Mr. Mahoney makes a mistake
Tvnen he argues that because the decision
in -question satisfied him and his counsel
Jt ought to satisfy everybody -else. It
3ofs nut '.do -so, jib .will appear later on.
"ALPHA."
Manhoneys fteply to Alpha.
)maha. 2eb.. Sept. 38. To the Editor
of tne W mid-Hera Id: The criticism f
Judge SutTrvan ro account of the "Bible
case." Inaugurated "by Mr. Rash. Js now
taken up ny "Ah?sa." Whether It Is to
be completed by "Omega" remains to be
seen. " Altha chief objection to the
cpinlon seems m fee tnat It ts not suffi
ciently clear. She say: ' It would appear
from Mr. llaboneys letter in the World
Herald" this morning that Judge Sullivan
construed state constitution as really
excluding any religious use whatever
of the Bible Jn the public schools. Judge
Full! van of course did not say this clearly
nd distinctly. He played on the word
"sectarian" and made it proper to infer
that, according to the judge, there Is a
-possible religious use of the Bible in th
public schools which Is not sectarian.
If the Judge did not mean this, he has
his own Indeliniteness and loquacity to
fciame for the misunderstanding. Mr.
Mahoney is much clearer and more sat
isfactory on this point."
It would look as though "Alpha" had
rot read either Judge Sullivan's opinion
or the constitution of this state. In the
opinion Juoge Sullivan says: "The teach
ing of religion would mean the system of
faith and worship of one or more of the
religious sects. It would mean sectarian
ism in the public schools, and to put sec
tarianism fnto the schools would, ac
cording to the opinions prevailing be to
put venom Into the body politic."
How can anyone read this language of
Judge Sullivan's and then say. as "Al
pha" dos. that he made it proper to
Infer that there Is a possible religious
vre of the Bible in the public schools
which !.- not sectarian. He left no room
lor such inference after he said that "the
teaching of religion would mean teach
ing the system of faith and worship of
t-ne or more of the rc-Kglous sects. It
would mean sectarianism in the public
srhocls." If this language does not ex
clude a religious use of the Bible In the
public schools. It Is not because of the
Judge's "Indefiniteness and loquacity."
but because of the Incapacity of the Eng
lish language to express a thought. But
"Alpha" seems to think that the Judge
ought to have used the word "religious"
Instead of "sectarian." If this Is a fault,
the fault Is not Judge Sullivan's; It was
the fault of the convention that drafted
the constitution of the state. Section 11
of article 8 o. our constitution reads: "No
sectarian Instruction shall be allowed In
any ' school or institution supported in
whole or In part by the public funds set
apart for educational purposes; nor shall
the state accept any grant, conveyance
or bequest of money, lands or other prop
erty to be used for sectarian purposes."
It Is "sectarian Instruction" that Is for
bidden by the constitution. Consequently.
It was only "'sectarian instruction" that
the court had any authority to Interfere
with. Hence, the word "sectarian" was
the correct and apt word to be used by
the court, as that Is the word found in
the constitutional provision.
Referring to my statement that Judge
Sullivan was not called on to make a
pronouncement upon the numlxr of dif
ferences between the Douay version and
the King James version of the Bible,
Alpha asks: "What induced the Judge.
Mr. Mahoney, to refer to those points of
difference, if those points of difference
are a matter of indifference in the view
of law?" If "Alpha" were familiar with
the arguments presented to the court,
she would be aware of what induced thi
Judge to mention the fact that there were
differences, and were she familiar with
the legal question Involved, she would
know that the fact of the existence of
differences 'was material, while a state
ment of the number of differences would
be wholly immaterial. At page four of
the reply brief on behalf of the relator
a single difference is called to attention
of the court, and counsel then, say: "This
difference, to say nothing of many others,
t construed by each party as vital to
the-eternal wefare of the believer." And
from the- fact that there exist differences,
counsel argued that the use of one ver
sio n in the manner in which it was
shown to have been used in the case be
fore the court, amounted to the en
throning in the public schools of the doc
trine of a sect, or number of sects. But
the brief presented did not attempt to de
termine the precise number and Identity
of points of difference, nor was such de
termination at all material to the deci
sion. The fact that there are differences,
be they few or many, makes the teach
ing of one version sectarian, and that
was the point that the court was called
on to decide.
But "Alpha" says: "One moment the
Judge Is represented as taking a. merely
secular view of the Bible when he says
the law does not exclude it from the
schools; the next moment he says some
thing, or is represented as saying some
thing, which destroys that construction
of his meaning altogether." It will be
noted that "Alpha" fails to point out
what the opinion says or is represented
as seying "which destroys that construc
tion of his meaning altogether." The
opinion" expressly says: "The teaching of
religion would mean the teaching of the
system of fa!.h and worship of one or
more of the religious sects. It would
mean sectarianism in the public schools."
It leaves no possible room for any inter
pretation, except that whenever the Bible
is so used in the public 'schools as to
teach religion, the constitutional prohi
"bition is violated, and it is only such a
use as may be made of the Koran or
the Iliad, that is. a purely secular use,
that is permitted. Besides, It should be
remembered that this is not merely the
opinion of Judge Sullivan; it Is the deci
sion of the entire court, consisting of
Judges Sullivan. Holcomb and Sedgwick,
none of whom dissented. The criticisms
of the opinion are not based on legal con
siderations. They are speculative in
character and attempt to plant them
selves upon a purely ethical foundation.
iNone of Judge Sullivan's critics have at
tempted to point out a single defect in
his reasoning upon the legal question in
volved. They do not even pretend to be
lieve that any of his conclusions of law
are erroneous. Now It does not make
a particle of difference what our opinions
of a decision may be. from an ethical
standpoint. The true test is always. "Is
the decision a correct exposition of the
law as It stands?" Not. "Is It such a
statement of the law as we might de
sire?" One of the brightest things I
ever Henry Estabrook say was:: "Law is.
or should be. an exact science. In law
you start with a certain premise and you
land upon an exact conclusion; but in
ethics you start from nowhere and land
In a rat hole." 'Since no one has attempt
ed to point out any Infirmity in Judge
Sullivan's Interpretation of the constitu
tion as a legal proposition, all attack
from the standpoint of what the law
ought to be. or what the constitution
ought to have provided. Is illogical and
unjust. T. J. MAHONEY.
REPUBLICAN JUDGES ENDORSED
BY DEMOCRATS.
The nine republican candidates for
re-election to the district bench who
have been endorsed, and are being
supported by the democrats of Ne
braska are:
George A. Day, Omaha.
Irving Baxter, Omaha.
Lee Estelle, Omaha. j
Guy C. Read, Omaha.
Charles F. Dickinson, Omaha.
Paul Jessen, Nebraska City.
Edward P. Holmes, Lincoln.
Albert J. Cornish, Lincoln,.
Lincoln Frost, Lincoln.
I I I t I I I I I I I I I I I I I I I I I I I II I
A NON-PARTISAN JUDICIARY
II I I I I I I 1 1 1 1 II I 1 1 1 1 II I M I
Republicans as well as Democrats bear testimony to Judge Sulli
van's worth. All agree that hjs services on the bench have been en
tirely satisfactory. He was on the district bench six years and has
been on the supreme bench nearly six years. He has been well tried
and found faithful. Shall we exchange him for an untried man? In
New York and Wisconsin a judge who has served his state worthily is
retained on the bench whether the party with which he affiliates is the
majority or minority part'. Last year the people of New York re
elected to the court of appeals Judge Gray, a democrat, although the
republican candidates were generally successful. This year Judge
O'Brien was a candidate for re-election to the New York court of ap
peals. He is a democrat. The democratic convention nominated him
and the republicans endorsed the nomination. Wisconsin has a re
publican majority of forty or fifty thousand. It has the best judiciary
in the west, its judge e chosen without regard to politics. At the
present time three of the five judges of the supreme court of Wis
consin are democrats, two of them having been appointed by repub
lican governors.
Tic people of Nebraska are becoming wiser. The man who used
to boast of never having voted for a candidate of the opposite politi
cal faith is becoming extinct. And it will be very pleasant to forget
him when he is gone. Th ancient idiotic appeal to "stick to the
ticket" and "vote 'er straight" has fatigued a patient world all too
long. This year Nebraska democrats have indorsed, and are advo
cating the election, of nine republican candidates for the district bench.
The republican convention however, did not endorse Judge Sul
livan. There was much talk of doing it, but it was not done. And
the only reason it was not done was that the chief justice is a demo
crat. No other reason was ever suggested. But the politicians can
no longer control the voters. They will cast their own votes. And
perhaps republican voters will conclude that rf democrats can vote for
nine republican candidates for the district bench, they can afford to
vote for the democratic . candidate for judge of the supreme court.
There is no reason why they should not exhibit as much political san
itv as the democrats, or as the republicans of New York and. Wis
consin.
The Omaha Examiner (independent),
judges, says:
"Partisan judges are especially dan
gerous. No litigant knows when he
is not going to get against another
with a stouter political pull than he
may have. The justice of a contro
versy cuts little figure in cases de
cided before partisan judges. Making
the courts parts of political machin
ery. -is. a subversion of justice that
brings the courts and all connected
with them into popular contempt.
When a man is found on the bench
who determinedly courts the ill will
of political machinists by deciding
controversies on their merits, he can
not be re-elected too often nor too
unanimously. It is a pretty safe prop
osition to tie to that the judicial can
didate whose election is opposed by
the partisan political machinist Is a
good man for every one else to vote
for, and vice versa."
WISCONSIN NON-PARTISAN JUDI
CIARY.
Coloney George W. Bird, one of the
leading lawyers of Wisconsin, in a let
ter to a friend in Nebraska and wri?
ing of the non-partisan judiciary, said:
"Wisconsin long since adopted that
policy In its election of judges. The
results have been so entirely satisfac
tory that nothing could Induce us to
accept a change. It "has secured
judges of unusual learning and ability,
and at the same time, and above all,
it has inspired our people with the
utmost confidence in their courts. In
selecting judges here, inquiry Is nev
er made as to their politics, only as
to their fitness. Under this system it
not infrequently happens that demo
cratic circuits choose republican
judges and republican circuits demo
cratic judges. At the present time,
three of the five judges of our supreme
court are democrats, although the
state has 50,000 republican majority,
and two of them were appointed by
republican governors, and their ap-'
point ments approved by subsequent
popular elections. At times attempts
have been maue by interested ones
to change the system one political
party or the other nominating its can
didates but such candidates have, in
I II I I I I i I I I I I I I I I I I I I I I I '
I I I I I I 1 1 I I 1 1 1 1 II I M I I I I III
speaking of"., partisan
every instance, been defeated by an
overwhelming popular majority. Such
instances only demonstrate how thor
oughly satisfactory the non-partisan
judicial system has proved in this
state."
NEW YORK NON-PARTISAN JUDI
CIARY.
New York Tribune (republican),
September 9, 1903:
The republican state committee has
served both the party and the public
well in nominating a candidate for
the only state office to be voted on
this fall. THE POLICY OF CON
TINUING IN OFFICE A JUDGE OF
DEMONSTRATED FITNESS RE
GARDLESS OF HIS PARTY AFFIL
IATIONS IS A GOOD ONE, and one
in which the great body of the re
publican voters believe. Party
managers have sometimes been loth
to accept the popular view, and have
found out that many of their own fol
lowers would refuse to 'support even
an unimpeachable candidate against
a faithful judge of the opposite party
who was a candidate for re-election.
The lesson is probably well learned
by this time that the judiciary is to
be kept out of politics.
Judge Denis O'Brien, who has been
nominated -by . the republicans to suc
ceed himself as associate judge of
the court of appeals, well deserves
the compliment that has been ten
dered to him. He has been a hard
working, fair-minded and competent
judge, and some of bis opinions in
important cases have attracted atten
tion for their straightforward com
mon sense and hold on realities. Af
ter having been attorney general of
the state he was elected to the court
of appeals as a democrat, but he has
had the respect of lawyers and liti
gants of both parties. As the dem
ocrats have nominated him for a sec
ond term, he is assured of a practic
ally unanimous re-election.
Everything the New York Tribune
says in favor of Judge O'Brien may be
said in favor of Judge Sullivan.
The Nebraska voter need not rely
upon the testimony of democrats and
populists as to Judge Sullivan's quali
fications. His record speaks for itself.
and wherever one may go in all the
state of Nebraska he will find that
among men of all political parties
there will be but one opinion express
ed with respect to Judge Sullivan's
service on the bench; and that op!s
ion is that Judge Sullivan has dem
onstrated, in a high degree, special
qualifications for the office he now
holds and to which, it is to be hoped,
he will be re-elected.
EXPERIENCE AND ABILITY.
New York Herald (independent).
Referring to the nomination by tha
republican as well as by the demo
cratic party of. Judge Denis O'Brien,
the New York Herald says:
In nominating Judge Denis O'Brien
for another term on the bench of the
court of appeals the republican state
committee has taken a wise course
that will meet with general approval.
As the democrats have taken similar
action, this dual endorsement means
the continued service in our highest
state court of an upright judge of ex
perience and ability.
While the precedent Is not novel it
is based on sound principle and
should become an invariable rule. It
takes the judiciary out of partisan
politics and makes judicial worth
the paramount title to service on th
bench. J
Judge O'Brien is to be congratu
lated on this mark of merited confi
dence, and the 'public is to be con
gratulated on the assurance of bis
continued service.
Everything that is here said in fa
vor of Judge O'Brien may be said witi?
equal truth of Judge John J. Sullivan.
Judge Sullivan is "an upright judge
of experience and ability," and when
the returns come in at the November
election, it will be well for public in
terests if the people of Nebraska may
be congratulated on the assurance of
Judge Sullivan's continued service.
SOME REPUBLICAN ESTIMATES
OF JUDGE SULLIVAN.
Governor Mickey, in his inaugural
address, speaking of the three judges
of the supreme court, said: "The
court as now constituted is a credit
to the state."
Hon. E. M. Bartlett, chairman of
the republican campaign committee
for the Fourth judicial district, in a
recent letter to the Omaha Bee, said:
"Judge Sullivan is an able judge and
a credit to the state."
Bixby, in the Lincoln Journal (re
publican), has this to say of the chief
justice:
A two-for-a-cent politician writes to
find out why we don't "jump onto
Judge J. J. Sullivan and give him
hell?" The answer is easy, for two
reasons: First, we have no occasion
to abuse the judge, and, second, no
disposition. He is a clean man and a
just interpreter of the law. The
color of his politics is not to our lik
ing, but that is no reason for treating
him with discourtesy.
The Fremont Tribune (republican),
speaking of the probable action of the
democratic and populist conventions,
reached the conclusion that Judge Sul
livan would be nominated, and added:
"But when Judge Sullivan is nomi
nated they will have named an excel
lent candidate. The Tribune is will
ing to say that much for their encour
agement." On another occasion the Fremont
Tribune (republican) said:
"The suggestion has come, from
popocratic -sources, of course, that
Chief Justice J. J. Sullivan be made
a non-partisan nominee for the su
preme court this fall. The Tribune
has the highest admiration for Judge
Sullivan. He possesses one of the
keenest minds In "Nebraska.- He is
clean-cut and Incisive, and his opin
ions are real contributions to litera
ture. His style is crisp and clear."
The Lincoln Evening News (repub
lican), discussing the attitude of Ne
braska republicans toward the sugges
tion of a non-partisan nomination for
the supreme bench, said: "Undef
some circumstances It might be possi
ble for the republicans to agree upon
the retention of Judge Sullivan, whose
clear head has won him respect and
whose quaint and witty way of putting
things has caused the lawyers to read
his decisions with many chuckles of
satisfaction."
So excellent has been Judge SullI-
