Omaha daily bee., 1911-08-16

not by all Of these. but by a majority Of
! them only.
! Now, as the government is for all the
people, and is not solely for a majority
| of them, the majority, in exercising control
! either directly or through it's agents is
| bound to exercise the power for the benefit
| of the minority as well as the majority
But all have recognized that the majority
! Of n people, unrestrained by laws, when
aroused and without the SOLDERING effect
of elaboration and discussion, may do
! injustice TO the minority or to the indi-
vidual when the selfish interest of the
majority prompts.
| Increase OF Checks.
| Hence arises the necessity for consti-
tuition, by which the will of the majority
shall be permitted to guide the course OF
| the government only under controlling
checks that experience has shown to be
necessary to secure for the minority its
share Of the benefits to the whole peo-
pie that a popular government could
establish to bestow.
| "A popular government is not a govern
ment OF a majority, by a majority, for
majority Of the people. 1T is a govern
ment of the whole people, by a majority
OF the whole people under such rules and
| checks as will secure a wise, Just and
beneficient government for all the people.
| 1T is said you can always trust the
people to do justice. II that means all
the people and they all agree you can.
ButBut ordinarily do not all agree. and
the maximis interpreted to mean that you
can always trust a majority of the peo-
| pie. This is not invariably true and the
| very Limitation imposed by the people upon
the power of the majority In their consti-
! tutions Is an admission that it is not al
| ways true.
NO honest, clear-headed man, however,
great lover Of popular government. can
4 deny that the unbridled expression of the
| majority OF a community converted hast
lily into law or action would some times
] make a government tyrannical and cruel.
Constitutions are checks upon the hasty
action OF the majority. They are the self
imposed restraints of a whole people upon
a majority OF them to secure sober action
and respect of the rights Of the minor
| ity, and of the individual in his relation
to other individuals, and in his relation
to the whole people in their character as
a state or government.
THE constitution distri5 ties the func-
tons OF government into three branches
the legislative to make laws, the executive
to execute them and the judicial, to de-
eide on cases arising before It the rights
| OF the individual as between him and others
and as between him and the government.
This division of government into three
separate branches has always been re-
garded as a great security for the main
tenance of free institutions, and the Sc
eprity Is only firm and assured when these
judicial branches are independent and i'm
| partial. ...s
The legislative and executive branches
are representative of the majority of
people which elected them in guiding the
course Of the government within the lin
It's or the constitution. They must act for
the whole people, OF course, but they may
properly follow and usually ought to fol-
low the views Of the majority which
elected them In respect to the govern
mental policy best adpated to secure the
welfare Of the whole people.
But the judicial branch OF the govern
ment is not representative of a majority
OF the people in any such sense, even II
the mode of selecting judges Is by popular
election In a proper sense, judges are
servants of the people; that is, they are
doing work which must be done for the
government and in the interest OF all the
people, but It Is not work In the doing OF
which they are 10 follow the will of the
majority except as. that is embodied In
statutes lawfully enacted according to con-
sututional limitations.
Courts Must He independents,
'srhey are not popular representatives
| On the contrary to FIJI their office prop
erly, they must be independent. They must
decide every question which comes before
them according to. law and justice II this
question is between individuals they will
follow the statute. or the unwritten law II
no statute applies and BY take the I'M
! written law. growing out OF tradition and
custom from previous judicial decisions.
I IF a statute or ordinance affecting
case before them lie not lawfully enacted
/ because II violates the . constitution
adopted by the people, then they must
ignore the statute and decide the question
as II the statute had never been passed
Their power Is a judicial power, imposed
by the people on the judges by the written
| constitution.
I'm early days. some argued that the
obligations OF the constitution operated
directly on the conscience OF the legislator
and only in that matter. and that II was
TO be conclusiyely presumed whatever was
done by the legislature was constitutional
But such a view did not obtain with our
! hardheahed courageous and 6aFsighted
statesmen ana judges, and II was soon set
tied that II was the dnty OF Judges in eases
| properly arising before them 20 apply the
law and 90 TO declare what was the law,
and that what purported 10 be statutory
law was at variance with the Fundamental
law The constitution the seeming statute
was not law at all. was not binding on the
courts. the individuals. or any branch OF
the government, and that II was abe duty
Of the judge so 20 decide
This power conferred on the Judiciary
In our form OF government is unique in the
history OF governments. and ATS operation
has attracted and deserved the admiration
and eommendation OF the world. II gives
to our judiciary position higher. stronger
and more responsible than that Of the ~
dietary Of any other country and more