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It is not necessary to argue to an assemblage of this character that the conditions which exist in an election, and which must combine to secure success, not only tend to, but in fact, lower the dignity of the judicial office, seriously impair its weight and shake the confidence which it should command from the public. Veneration for the bench is almost gone. The trust and affectionate admiration which every worthy incumbent should command is cruelly smothered in distrust and suspicion flowing from the methods by which the exalted position was secured and the brevity of the term during which the position can now be held.
Our Association was formed, among other things, to promote the administration of justice, to encourage a thorough legal education and to uphold the honor and dignity of the bar. No more successful means of accomplishing these desirable ends can be found than to place the bench upon a more exalted plane. Judges should be the most eminent members of the profession. Sydney Smith's description of and tribute to a true judge cannot be too often recalled: He “must be clear from the spirit of party, independent of all favor, firm in applying rules, merciful in making the exceptions, patient, guarded in his speech, gentle and courteous to all. Add his labor, his learning, his experience, his probity, his practical and acute faculties, and this man is the light of the world, who adorns human life and gives security to that life which he adorns.”
If in Colorado we can command the service of judges who answer this description, we promote the administration of justice, we uphold the honor and dignity of the bar, we encourage a thorough legal education. Such a bench would be the standard of the profession. In their court and in their presence, character and learning would command respect and attention. Questionable methods would neither succeed nor be tolerated. Unconsciously, by the process of natural selection and the survival of the fittest, the bar would be lifted to the moral and intellectual plane of the bench, and the two, bench and bar, would speedily be restored to that proud position which they once occupied in the respect and affectionate esteem of the American people.
This condition cannot be restored while the way to the bench is made easy, through political intrigue, for lawyers of inferior capacity and questionable character. While this condition exists, lawyers will continue to neglect to cultivate those qualities which render their advancement desirable either to the profession or to the public; and while mediocrity or inferiority fills the bench, success at the bar is not difficult for the many persons of little education, untrained minds and uncertain character, whose presence in the profession has brought the entire bar under an undeserved suspicion and condemnation.
If the elective system is unsatisfactory, short terms are equally subject to condemnation. A tenure of good behavior brings with it that experience in the administration of the laws which is invaluable, promotes facility in the transaction of business, clearness and consistency in decisions, and develops that judicial frame of mind which is undisturbed by the excitement of political contests, and secures for the bench public reverence and firm belief in its integrity and impartiality, and gives to litigants a sense of security and confidence.
Lawyers of ability and the highest professional attainments find in such a term security sufficient to induce them to forego the greater emoluments of practice and commit their lives and services to the public.
A brief term discourages men having the highest qualifications and results in a tendency to commit the administration of justice to those less fitted and less able to conduct it with dig. nity and usefulness.
A tenure of good behavior places the judge beyond the temptation, or suspicion of temptation, to yield to the popular will as evidenced by popular majorities, beyond the influence of class or local interests, beyond the necessity or inclination-when the end of a term is approaching, and when by reason of advanced age his compensation may constitute his only refuge from pe. cuniary distress—to take an active part in political contests or become suppliant at the feet of party managers.
Permanence in office contributes to firmness and independ. ence. The judge should be independent of party leaders, independent of party, independent of the people for reëlection, independent of the appointive power for his continuance in or restoration to office. He should be uninfluenced by ambition for further preferment or apprehensive as to the tenure of his office.
He should be obedient only to true fame, to high principle, to honor, to justice, to learning, to the dictates of his own conscience, and responsible to none save for his own good behavior.
Paraphrasing the dignified and beautiful sentiment to which utterance was given some dozen years ago by Lord Justice Bowen of the English bench, it should now be said, and for all future years remain true of the judges in our magnificent, young, aspiring and progressive commonwealth, that “These are not days in which any Colorado judge will fail to assert his right to rise in the proud consciousness that justice is administered in this state, immaculate, unspotted and unsuspected. There is no human being whose smile or frown, there is no administration of whatsoever political complexion, whose favor or disfavor can start the pulse of a Colorado judge upon the bench, or move loy one hair's breadth the even equipoise of the scales of justice.”
ROBERT S. MORRISON
THE RELATION OF THE BAR ASSOCIATION TO THE BENCH.
Gentlemen: Ultimate power must exist somewhere in any form of government, whether despotism or democracy, and in our system it resides in the appellate courts of the state and nation.
All history repeats the fact that when any man or body of men exercise supreme power, that is to say, where no human being or tribunal above them has any control or supervision of their conduct, the tendency is to abuse of that power.
I have chosen the very delicate text of the relation of this supreme power to the Bar Association, because the Bar Associ. ation is perhaps the only organization or person which can without offense suggest to the judiciary the dangers which environ the exercise of ultimate power.
I do this with all deference, as to friends and fellow counsellors, with admiration for their purity, their learning and their industry, and preface my remarks with the statement that for every occasional mistake, they decide an hundred cases in such a way as to command the professional respect of the whole bar.
When a lawyer makes a mistake either he or his client has to suffer for it, and the mistake is atoned for. When the courts make a mistake, they take no punishment at all. When a law. yer loses a case, it is but one person who suffers; when the courts decide a case wrong, it becomes a breeding precedent, and there is no telling its far-reaching results.
Courts, like men, have their hobbies, their fads, their queer ideas, their days of dullness, and now and then they give way to them, not always so as to deserve serious comment, but sometimes they do.
Some years ago there came up a case which involved the question of exemplary damages. The court held that exemplary damages could not be given where the wrong amounted to a (rime, lest peradventure a man might be twice punished for the same offense. That was the case of Murphy vs. Hobbs, 7 Colo. In Greeley Co. rs. Yeager, 11 Colo., they extended the rule to all cases.
It may be laid down as a guide for all lawyers that where a case works manifest, plain, palpable injustice, it is not good law. The object of the law is justice, not injustice. There may be cases of hardship under the law, but not of gross injustice. And when the court says that a libel published maliciously, for the purpose of breaking down a man's reputation, persistently followed and reiterated, is to be compensated exactly as when a publication is made inadvertently and is retracted the next day, the decision is so manifestly unjust that it causes a feeling of revolt, which no casuistry can explain away.
These two cases were pure judicial legislation. The law was plain text book law, that cases of insult, cruelty, brutality and oppression were to be compensated by exemplary damages, and when the court decided otherwise they simply broke the law they were placed on the bench to enforce. The legislature of 1889 were forced to enact a statute declaratory of the common law to compel the courts to decide the law as it stood before these decisions.
In that line of decisions which involve social questions we hold it to be the duty of courts to maintain the highest standard.
In the matter of family relation, which is the basis of society, they have not done so. The wide open divorce law of the state is one forced upon the legislature by the opinions of the supreme bench. It is true that divorce in this state was always loose, but it had some limitations until the case of Syleis 18. Sylris, 11 ('olo., where the court decided that shaking the bed was good ground for divorce. This led to the act of 1893, where the clause "and such acts of cruelty may consist as well in the infliction of mental suffering as of bodily violence,” allows any party who desires a separation to make a good complaint for divorce. Perhaps no couple ever lived together, one or both of whom could not complain of mental suffering, sufficient to make a case under this act. The case of Sylvis 1's. Syluis was as great a blow to the sanctity of the marriage relation as