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by any fear of removal so long as he is acting strictly as the law requires. This is the reason why many who believe in the recall of other officers do not believe in the recall of judges. The following is taken from The Outlook:
“But the judiciary are not representative,” says President Taft, “in any such sense” as the legislative or executive. “It is a complete misunderstanding of our form of government, or of any kind of government that exalts justice and righteousness, to assume that judges are bound to follow the will of a majority of an electorate in respect of the issue for their decision.” As to the recall of judges, “there could not be a system better adapted to deprive the judiciary of that independence without which the liberty and other rights of the individual cannot be maintained against the government and the majority.”
F the reasons against recall of judges are so strong, as former President Taft thinks, why does any one favor it? Is it because people are stupid, or because different parties and interests think that by recalling judges they could escape from the consequences of disobeying just laws? To understand the reason for the agitation which we have had during the past few years we must look deeper. The supposition which we stated in the last chapter was that the courts apply laws but do not make them. The real source of trouble is that this is only partly true. Let us examine more carefully both kinds of law, the common law and the statute law, in order to see how far judges apply law and how far they make it. Common law we learned something about in the earlier part of the book. We saw that it was built up step by step by the English judges, as they decided cases brought before them. They based their decisions in part upon the customs of the country; in part they reasoned out what would be the fair thing in a new case. They went by previous decisions so far as these seemed to apply; but from time to time there would be something new in the matter that would have to be decided on the basis of what the judge believed to be reasonable. In recent years many new issues have come up for decision and conditions have changed so completely
Do courts make law
or apply it only?
(1) In common law
Instance the fellowservant rule
that judges have had to do one of two things. They
men would be employed together. It was easy for each to know the rest. Moreover, there was little if any machinery. Under such conditions it was not a very unfair rule. The leading case in this country in applying the rule was that decided by Judge Shaw of Massachusetts. A locomotive engineer was injured by the neglect of a switchman. The court held that the switchman was a fellow-servant, and therefore that the engineer could not recover damages. “The implied contract of the master,” said the court, “does not extend to indemnify the servant against the negligence of any one but himself.” Now the practical effect of this upon a great railway system employing thousands of men would be to leave the workman with practically no relief at all in the great number of cases where some one might be careless. Under the earlier methods of industry a man might know something about his fellow-servants and the risks he was taking, so that he would be reasonably safe. To apply the old rule to the conditions of a great railway system in which an engineer could know nothing about the conduct of the thousands of other men on whom his safety depends is in reality to make a new law, although the old phrases may be used. As a result, in part, of the precedent thus set, which has been followed by the courts, very few workmen in proportion to the total number injured have received any damages. Although they and their families are ill able to sustain the losses due to the dangerous character of modern machinery, the law as thus interpreted by the courts has practically compelled them to bear the whole weight, except when statutes have been passed to abolish the older rule, or else to give compensation irrespective of who may be at fault.
(2) In statute law.
Instance, the Fourteenth Amendment
What has made the above interpretation seem harder