The commoner. (Lincoln, Neb.) 1901-1923, March 01, 1912, Page 11, Image 11
11 MARCH 1, 1S1J The Commoner. I a selves oatisfied with their present representative system, then it is of course their right to keep that sys tem 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 I believe that the state should provide for the possibility of direct popular action in order to make good such legisla tive failure. The power to invoke such direct action, both by initia tive and by referendum, should be provided in such fashion as to pre vent its being wantonly or too fre quently used. I do not believe that it should be made the easy or ordi nary way if taking action. In the great majority of cases it is far bet ter that action on legislative matters should be taken by those specially delegated to perform the task; in other words, that the work should be done by the experts chosen to per form it. But where the men thus delegated fail to perform their duty, then it should be in the power of the people themselves to perform the duty. In a recent speech Governor McGovern of Wisconsin, had de scribed the plan which has been there adopted. Under this plan the effort to obtain the law is first to be made through the legislature, the bill being pushed as far as it will go; so that the details of the proposed measure may be threshed over in actual legis lative debate. This gives oppor tunity to perfect it in form and in vites public scrutiny. Then, if the legislature fails to enact it, it can be enacted by the people on their own initiative, taken at least four months before election. Moreover, where possible, the question actually to be voted on by the people should be made as simple as possible. In short, I believe that the Initiative tatlon for the recall &s applied to judges. First, the administration of justice has withdrawn from life and become artificial and technical. The recall is not so much a recall of judges from office as it Is a recall of the administration of justice back to life, so that it shall become, as it ought to be, the most efficient of all agencies for making this earth a bet ter 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' (that is our 'rule'). Courts have repeatedly defeated the aroused moral sentiment of a whole common wealth. Take the example of the St. Louis boodlers. Their guilt was plain, and in the main confessed. The whole state was aroused and out raged. By an instinct that goes to the very foundation of all social order they demanded that the guilty be punished. The boodlers were con victed, but the supreme court of Mis souri, never questioning their guilt, set their conviction aside upon pure ly technical grounds. The same thing occurred in California. Nero, fiddling over burning Rome, was a patriot and a statesman in compari son with judges who thus trifle with and frustrate the aroused moral sentiment of a great people, for that sentiment is politically the vital breath of both state and nation. It is to recall the administration of justice back from such practices that the recent agitation has arisen. "Second, by the abuse of the power to declare laws unconstitutional the courts have become a lawmaking, in stead of a law-enforcing agency. Here again the settled will of society to correct confessed evils has been set at naught by those who place metaphysics above life. It is the courts, not the constitutions, that are at fault. It is only by the pro- similar circumstances a governor or a legislator or a public utilities com missioner should do wrong. Each must follow his conscience, even though to do so costs him his place. But in their turn the peoplo must follow their conscience, and when they have definitely decided on a given policy they must have public sorvants who will carry out that policy. Keep clearly in mind tho distinc tion between the end and tho means to attain that end. Our aim is to got the type of judge that I have described, to keep him on tho bench as long as possible, and to keep oft tho bench and, if necessary, take off the bench the wrong typo of judgo. In some communities one method may work well which in othor com munities does not work well, and each community should adopt and preserve or reject a given method according to Its practical working. Therefore the question of applying the recall in any shape is one of ex pediency merely. Each community has a right to try the experiment Cor itself in whatever shape it' pleases. Under the conditions set forth in the extract from the letter given above, I would personally have favored the recall of the judges in California and in Missouri; for no damage that could have been done by tho recall would have equaled the damage done to the community by judges whose conduct had revolted not only the spirit of justice, but the spirit of common sense, i uo not Denovo in adopting the recall, save as a last resort, when it has become clearlv evident that no other course will achieve the desired result. But either the recall will have to bo adopted or else it will have to be made much easier than it now is to The Guaranty State Bank, Muskogee, Oklahoma, oner tn their cu-loiner mid irwlurn of thl pnrxsr throughout tho country vxcopllonnl facilities or huiulllnir accounts by mnll. Tho HowmUow Ouar nnl Fund o. the trtnto ol Oklahoma IrmirMalnoltiU rafoty of all fund deposited wiUi in. Wo believo In thi Inlotcrty mid conwrvntlmn ol our ofTlcors. butyounro not compiled to rely on IhK What lirolertmn do you Ret from your homo bank? Wrlto lor booklet to-dny. Intcrcxt paid on Time Deposlti and HavlnvR Accounts. M. U. HAHKKLL. Vlco President. M. O. BULLS. Cashier. It 1 Hie hvHi policy Iioldrr'n com pany In the UHltctl State. ASSETS, $8,000,000 Trrcnty-Hve yearn old. Write The Old Line Bankers Life Lincoln, Nchrmika Choice Virginia Farms ALONG CHESAPEAKE & OHIO RAILWAY AS LOW AS J10 I'KIt A0HE. Abnndnnt rainfall, rick soil, mild wlntorm nnnriiy r.niitrn mnrkot. Wrlto or II lultratod booklet. " OOUNTIiY LIFE IN VIRGINIA' (134 page), and low oxmnrinn rntoii. Addrcwi, K. T. OIIAWLKY. Industrial Ajjnnt. O. k O. Ball nay, UoiIAY Richmond, Va. .GENTSPG PROFITS and referendum should be used, not cess which James Russell Lowell The only Stropper that strops any razor diagonally jsranui'B ontomou mno- log iiuUlui(n,nr htroppur. Auto matically putfl a pcrlcct i'Uro on tiny razor. Old tyle or Haloty. Ills seller. Kvcry man wmitHonu. WrlU quick for tcrinn, prices, territory. as substitutes for representative gov ernment, but as methods of making such government really representa tive. "Action by the initiative and ref erendum 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 represen tatives fail truly to represent the peoplo on some matter of sufficient importance to rouse popular interest, then the people shall have in their hands the facilities to make good the failure. And I urge you not to try to put constitutional letters on the legislature, as so many constitution-makers have recently done. Such action on your part would in vite the courts to render nugatory every legislative act to better social conditions. Give the legislature an entirely free hand; and then provide by the initiative and referendum that the people shall have power to re verse or supplement the work of the legislature should it ever become necessary. "As to tho recall, I do not believe that there is any great necessity for it as regards short-term elective offi cers. On abstract grounds T was originally inclined to be hostile to it. I know of one case where it was actually used with mischievous re sults. On the other hand, in three cases in municipalities on the Pacific coast which have come to my knowledge it was used with excel lent results. T believe it should be generally providedbut with such re strictions as will make it available only when there Is a widespread and genuine public feeling among a ma jority of tho voters. RECALL OF JUDGES DISCUSSED "There remains the question of the recall of judges. One of the ablest jurists in the United States, a veteran in service to the people, recently wrote mo as follows on this gubject: "There are two causes of the agl- when answering the critics of Lin coln, called 'pettifogging tho consti tution,' that constitutions which were designed 'to protect society can thus be made to defeat the common good. Hero again the recall is a recall of the administration of justice back from academical refinements to social service." APPLYING THE LAW "An independent and upright judi ciary which fearlessly stands for the right, even against popular clamor, but which also understands and sympathizes with popular needs, is a great asset of popular government. There is no public servant and no private man whom I place above a judge of the best type, and very few whom I rank beside him. I believe in the cumulative value of the law and in its-value as an impersonal, disinterested basis of control. I be lieve In the necessity for the courts' interpretation of the law as law with out some other thing than .aw for it. But I agree with every great jurist, from Marshall downwards, when I say that every judge is bound to con sider two separate elements in his decision of a case, one the terms of the law, and the other the conditions of actual life to which the law is to bo applied. Only by taking both of these elements into account is it possible to apply the law as Its spirit and intent demand that it be applied. Both law and life are to be considered in order that the law and the constitution shall become, in John Marshall's word, 'a living in strument and not a dead letter.' "Justice between man and man, between the state and its citizens, Is a living thing, whereas legalistic justice is a dead thing. 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. So must every other official. He must not do any thing wrong because there is popular clamor for it, any more than under , , , , - iiji quick lor icrmn, pricm, vcrruorjr. . I'f. n?l6rH "Lll'.l & W- H.dt o.tl. Co.. 84 W. H.Y. ous, has grown so out of touch with social needs and facts that ho is un fit longer to render good service on the bench. It is nonsense to say that impeachment meets the diffi culty. Tn actual practice wo have found that impeachment does not work, that unfit judges stay on tho bench In spite of it, and Indeed be cause of the fact that impeachment is the onlv remedy that can bo used against them. Where such is the actual fact it is idle to discuss the theory of the case. Impeachment as a remedy for the ills of which the people justly complain is a complete failure. A quicker, a more summary, remedy is needed; some remedy at least as summary and as drastic as that embodied in the Massachusetts constitution. And whenever it be found In actual practice that such remedy does not give the needed re sults, T would unhesitatingly adopt the recall. "But there is one kind of a recall In which T very earnestly believe, and the Immediate adoption of which T urge. There are sound reasons for being cautious about the recall of a good judge who has rendered an un wise and improper decision. Every public servant, no matter how valu able, and not omitting Washington or Lincoln or Marshall, at times make mistakes. Therefore we should be cautious about recalling the judge and we should be cautious about in terfering In any way with the judge In decisions which he makes in the ordinary course as between individ uals. But when a judge decides a constitutional question, when ho de cides what the people as a whole can or can not do, the people should have the rieht to recall that decision if they think it wrong. We should hold the judjclary In all respect: but it Is both absurd and degrading to make a fetish of a judge or of any one else. Abraham Lincoln said in his first Inaugural: 'If the policy of the eovernment upon vital questions affectine: the whole "people Is to be I irrevocably fixed by decisions of the ffmk W& Mil iliilli wkn VllB7VLaWi2 Jm Vim wf (0 DAYS FREE TRIAL W ship on approval without a rr dtpoiit, rreiciit prepaid, non'i , PAY A CENT if jou ara ot tatltflaa af tar mine tho bfcjcla 10 daya. aftlrentmrnanyont DO BiTT RIIV ablcirU or apolt at nny price until you rectlvo oar tUi arc cntaioir iiiuttratinc t7 tine ot blcicU, and liar laarnad our unlieard of price and marvtlou veto vffrra. QUE PEMT un w"(rt yedM Onb UUni write a ratal end Ttrr Iblnr will bo Mat you free poatpuld by return nail. Ton w III et much valuable Is formation. 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