Middlebury register. (Middlebury, Vt.) 1886-1937, 1897-10-08

the righteousness shown in their en-
forcement Because under the law Ger.
tain proceedings are not distinctly pro-
hlbted, it does not by any means fol-
low that the court will permit them to
be freely INDUCED in; but in exercising
this prohibitory power it is necessary
that the Judges of our courts, who in
this respect hold the prerogatlves which
were formerly vested in imperial or
monarchical rulers, should bear in mind
the well-being of the entire community.
a well known authority has written
that when the law speaks universally
and something happens which is not
according to the common course of
events, it is right that the law should
be modified in its application to that
particular case, as the lawgiver him
self would haye done il the case had
been present to his mind" The prin-
ciple laid down in this last statement is
one which has to be strictly borne in
mind by those who exercise this tire.
mendOus discretionary power. The
question which they are called upon to
ask themselves in each particular in.
stance is: Would the facts in the case,
if presented to the law making power
as they are presented to me. lead it to
take action in the form of statutory
provision similar to that which am
/ a lraI 70 fol 10,
could be answered honestly in the af-
firmatiye case would appear to be
made out for the employment of equity
proceedings, no matter how far-reach-
ing these might be. On the contrary,
if a Judge who should thus disinterest-
edly and impartially question himself
arrived at the conclusion that legisla-
ture or a congress, if called upon to
act in its law-making power, would not
make the restrictions or exemptions
which he was asked to make, then his
assumption of the prerogative of equity
would become usurpation of power
which might fairly lay him open to the
censure or condemnation of the people.
1t seems to us that under such cir
cumstances it is not enough for him to
believe that in an ideal social or pollti-
cal community the law-making power
would act in such manner because
under such conditions he would be ar.
rOgating to himself a right which in a
free country could not, and should not,
be tolerated. lie must, therefore, take
into account the limitations of popular
prejudice, political necessity and legis-
lative eXpediency which surround and
color the action of all law-making
bodies When he acts within such bound
aries his action can be defended, and
cannot fail in the long run to be well
approved.
The criticism that can be made upon
recent judicial action of the kind re-
ferred to is that, in the opinion of a
large number of our people, it has gone
beyond these limitations, and as result
restraints have been imposed upon indi-
vidual action which neither the national
congress nor the legislatures of the
various states would ever have imposed
if the facts in the case had been brought
to their attention. On the other hand.
it should be insisted upon that if there
is need of cOrrection-and it is obvious
that great many people believe that
there is-the cure for the evil is not to be
found in throttling the power of the
courts, which is the safeguard of in
dividual liberty, but in so impressing on
the thought and conscience of the nation
a true conception of equity that no
Judge will think of msusirg or will dare
to misuse his pOwer.-BostOn Herald.