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be recalled. If he is not, then he should be impeached, that is, tried before some body that will carefully consider the charges. But as a matter of fact, officers like governor and mayor really represent some policy quite as truly as do the representatives and senators or members of the city council; hence if the recall of legislators is wise, the recall of an administrative officer may well be wise also.

The judge is not supposed to decide matters of The policy. He is supposed to apply the law to a par- judge ticular case.

does not For example, two of the great questions about which there has been much difference of opinion are the questions of trusts and of strikes. Now the people are supposed to pass laws to decide whether trusts shall be permitted or forbidden. It is then the business of the judge to decide, either alone or with a jury, whether such an organization as the American Tobacco Company or the Standard Oil Company comes under the law. In the case of a strike it is not the business of a judge to decide whether it is right to strike, but only to decide whether John Doe has done anything contrary to the law, either by injuring his employer's business or by injuring some workman. The law itself is supposed to be already made, either by some statute passed by a legislature or by the decisions of previous judges. These decisions, when made, were supposed to express the general sense or custom of the community as to what was right. Hence it would seem to be clear that a judge either does his duty in administering the law or else violates his duty. In the first case, he ought not to be afraid of being removed from office. Rich men or powerful men, on the one hand, and poor men, on the other, ought to feel that the judge is impartial, that he cannot be influenced

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.”

CHAPTER XXVI

DEMOCRACY AND THE COURTS

I

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 Do courts was that the courts apply laws but do not make them. make law The real source of trouble is that this is only partly

or apply

it only? 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 ear- (1) In lier part of the book. We saw that it was built up step common

law 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

that judges have had to do one of two things. They have had to follow the old decisions strictly, and therefore make a decision which doesn't fit the present case; or they have had really to make a new precedent. One illustration of the way in which judges virtually make a new law was the group of decisions, about a hundred years ago in England, holding trade-unions and strikes unlawful. Professor Stimson points out that there were two lines of statutes, either of which the courts might have followed. On the one hand was the old line of common law decisions as to gilds, which treated these unions as perfectly lawful. On the other hand was the old line of Statutes of Laborers, which fixed a lawful wage.

The courts might have regarded a trade-union as a sort of gild, and therefore called it lawful. What they did was to regard it as “a combination of workingmen to break the law by getting more than lawful wages.' It is easy to see that the courts were really making a new law here by selecting which of two possible rules they would apply. Indeed there are now so many cases to which a judge may refer for a precedent in making a decision that it is almost always a question of choosing which precedent he will follow. A distinguished jurist has said, “ that a judge may decide almost any question any way and still be supported by

an

array of

cases."

Instance the fellowservant rule

One illustration of the way in which a judge really makes new law, although he may think that he is simply following an old rule, is found in the so-called fellowservant rule. Under the old rule of common law a servant or employee could not recover damages for an injury caused in whole or in part by the negligence of a fellow-servant. In olden times only a few work

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.

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