The record-union., 1896-06-02
"JUDGE-MADE LAWS"

number of our contemporaries just now
it to talk alarmedly and sagely of the
"encroachments of the courts upon the
rights of the people," and especially to
preach of "Judge-made law" Thus,
in the case of the Interpretation of the
Purity of Election Act, so far as 1t re-
hates to bribery ait primaries; in the con-
struction of the Act relative to vagran-
c; in the Interpretation of the powers
of the Judge in reviewing the verdict
of the jury; in the matter of the grant
ing of new trials, and in the other mat
ters concerning which there has been
popular outcry against the courts, so
far as it is voiced by newspapers, there
is bitter and unjust criticism of the
courts, coupled with the allegation that
in interpretating laws they make law.
It would be offensive to charge our
contemporaries indulging in these crit
icisGns with ignorance, and we have no
intention of doing so in an offensive
spirit. But it is simple truth that in all
or very nearly all the cases of indul-
gence in assault upon our courts be-
cause they do not interpret statutes as
newspapers read them, the basis Of the
criticism lies in ignorance or forgetful-
ness of the principles which govern, and
forever must govern in Interpretation.
These are as old as time, approved by
rhe ages, and have had the concurrence
OF thinking humanity since jurispru-
dence was an element ON mans econ
cmy
The rules Of Interpretation, it is very
true, may be misapplied and at times
they have been ignorantly and in
some cases by corrupt Judges,
but in ninety cases out of
hundred they are not misapphed and
substantial justice is done. 1t may be,
often is, that a statute framed with
greatest care and intended to express
the plain wish and mandate of the peo-
Hle, is found when subjected to the rules
of Interpretation to be inadequate to
achieve the ends intended.
The courts, as must be obvious to
any thinking intelligence, can ascertain
the intention of the legislator only from
the language employed. 1t must be as
sumed, since any other rule would be
dangerous, indeed ridiculous, that the
legislator uses the language chosen in
lis well-known and accepted legal
meaning, also that he uses 1t with full
knowledge of its bearing upon and re-
lation to all other existing laws, and its
capacity under the Constitution. 1t will
be readily understood, as We have said,
by the impartial mind that the courts
cannot consider any evidence of tnten-
tion on the part of the law maker out
side Of his expression In the law. If,
therefore, law fails Of popular desire,
under the criticism Of the courts 1t is
because the latter do as is their bound
en- duty, and stand for the liberties of
the people against the enforcement Of
any law that is not IN harmony with the
Constitution and framed in a manner
to enable the intention Of the law maker
t3 be ascertadned according to the usual
and accepted rules of Interpretation
Take the most recent case the inter-
probation of the Purity of Election Act
as it relates to bribery and primaries.
It is perfectly clear that the court below
and the Appellate Court in that case
construed the law as II reads, and that
there is no other construction to be
placed upon it without doing violence
TO the everlasting and everything princi-
pie underlying legal Interpretation.
The simple fact is that we have very
little Judge-made law. In this country,
even were the Judges so disposed, they
could not make and enforce laws to any
material injury to human rights, be
cause of the multiplicity of remedies
our laws afford, and the numerous tri-
bunals through which cases may be
carried to final judgment. Moreover,
1t is not in evidence that our courts
have manifested to any considerable
extent any such disposition as is
charged, though it is conceded that
there have been corrupt men upon the
bench. The Judges come direct from
the people. They are responsible to
them alone; they hold office for but
short terms; and they sit in the pres
ence of bar exceedingly large In mem
bership, and out Of which there comes
such advocacy on all sides Of every
question presented, that there is never
failure Of championship for every
view entertained in the public mind
concerning the laws made by the Leg
islaturd
The courts are not above criticism, as
they are not free from error and evil
doing, since they are human institu-
tions; but we submit that in the usual
construction of statutes and In the
application of the doctrines of the
common law, so far as not abrogated
by the American system, there is
wanting reason for the iterated charge
that our tribunals are seeking for
some inscrutable purpose to override
the laws Of the people and substitute
those of their own making. There is
nothing whatever to warrant the seri-
GUS but oft-repeated charge that these
judicial bodies, chosen and commits
stoned by direct action of the people.
are combined to rob the people of their
liberties.
On the contrary, whoever. with clear.