Evening star. [volume] (Washington, D.C.) 1854-1972, 1912-03-09
better than by quoting from Daniel Web

better than by quoting from Daniel Web
ster. He said:
1.-The first object of free people is thu
preservation of their liberty. and libertl
is only to be preserved by maintaining
constitutional restraints and just ohVl
sions Of political power. Nothing IS more
deceptive or more dangerous than INT
pretense Of desire to simplify govern
ment. The simplest governments arr
despotism; the next simplest, limited
monarchies, but all republics. all gov
ernments Of law, must impose numerou:
limitations and qualifications OF author
ity and give many positive and man.
must be subject to rule and regulation
This is the very essence of free poi1t1ca
institutions. The spirit of liberty IS, IN
deed, bold and fearless spirit. out II
also a sharp-sighted spirit; 1T is q eau
tious sagacious, discriminating. far-see
ing intelligence; it is jealous of encroach
ment, jealous Of power. jealous OF man
1t demands checks; it seeks for guards
1t insists on securities; 1t fntrencneS !tseil
behind strong defenses and fortunes 1tseil
with all possible care against ,ne assaau ,,.;
OF ambition and passion. 1t does not trust
the amiable weaknesses of human nature
and therefore 1t will not permit power tG
overstep it's prescribed limits, though
benevolence. good intent and patriotle
purpose come along with It, Neitner does
it satisfy itself with fiashy and tenn
porary resistance to illegal authority
Far otherwise. It seeks for duration and
permanence. 1t looks before ana aIter,
and, building on the experience or ages
which are past, 1t labors diligently Tor
the benefit Of ages to come. This is the
nature Of constitutional liberty. and this
is our liberty. II we will rightly under
stand and preserve IT.
Every free government is necessarily
because all such govern
ments establish restraints, as well on tne
power of government itself as on that OF
If we will abolish the dis
tinction of branches, and have but one
branch; II we will abolish jury trials, ana
leave it all to the judge: If we Will then
ordain that the legislator shall himself
executive power in the same hands. we
may readily simplify government. we
may easily bring it to the simplest OF all
possible forms-a pure despotism. But
separation Of departments, so Tar as prac-
tical. and the preservation Of clear lines
mental idea in the creation of all our
and, doubtless, the continu-
ance of regulated liberty depends on
these boundaries
"These checks and balances. as mas
been pointed out, include the division OF
the government into three Independent
legislative, executive and
the judiciary-and the provisions by
which usurpation by one of the functions
of another Is forbidden. The executive.
while he is bound to act in behalf OF all
the people and to regard their rights. is
properly influenced by that discretionary
policy which he was elected by his con-
stituents to carry out. In that sense ne
represents the majority of the electorate:
So. too, the legislative members elected
IN
the majority will properly favor the en-
bodiment Of such views in valid legisla-
ton.
Judiciary Not Representative.
But the judiciary are not representa-
tive in any such sense. whether appoint
ed or elected. The moment they assume
their duties. they must enforce the law
as they find 1t. They must not only IN
terpret and enforce valid enactments OF
the legislature according to its intention
but when the legislature in its enact
ments has transgressed the llmltat VI:
set upon its power in the Constitution
the judicial branch OF the government
er law by annulling and declaring 1nvailo
the offending legislative enactment. Their
the Judges are to decide between In
dividuals on principles of right and JUS
tice. The great body Of the law is un
written, determined by precedent &. ant
founded on eternal principles Of right ane
morality. This the courts have to de-
clare and enforce. AS between the In
dividual and the state, as between tint
majority and the minority, as between
the powerful and the weak, financially
socially, politically. courts must hold al
even hand and give judgment withou
fear or favor. In SO doing they are per
forming q governmental function; bu
1t In q complete Misunderstanding OF
our form Of government, or any kind
Of government that exalts Justice and
righteOusness, to assume that judges
are bound to follow the will Of the ma
jority Of an electorate In respect Of the
issue for their decision. In many cases
before the judges, that temporary ma
jority is a real party to the controversy
to be decided. 1t may be seeking to de
prive an individual or a minority OF
right secured by the fundamental law
In such a case, If the judges were mere
representatives or agents OF the maJorlt!
to carry out its will, they would lose theil
judicial character entirely. and the SO
called administration of justice would o.
q farce.
Having made clear what the function
of our courts is under our form of gov
eminent in maintaining the constitutional
guarantees or rights and In preserving
against the usurpation OF the majority
people and of the voting minority and OF
the individual. we come now to examine
the charges made against the existing
system. / concede that the system Is not
perfect or as good as 1t can and ought to
be made have been preaching for re-
form especially in the enforcement Of the
criminal law, for years. Then, too. have
pointed out in addresses and presidential
messages the great need for cheapening
the cost Of civil litigation and expediting
AVyr,A 4vr RN1 he
poor litigant as possible. The defects in
our judiciary have not been In the cor
r,lntion OF the judges. but mainly in the
procedure and In the helplessness of the
judges in jury cases to assist IN reaching
right conclusions. The popular impulse
the Judge and to give 1t all to the jury.
a nd this has not been for the public good
in the enforcement OF the criminal law.
Such defects as have described are COM
pletely within the control OF the leglsla-
lures Of the state and Congress. and am
glad to say that the movement for re-
form has been accelerated by action OF
the state and national bar associations.
and we may look for decided progress In
the near future.
Charge Against the judiciary.
But these humdrum defects and their
tedious remedies are not Of the spectacu-
lar character to call for political discus.
sion or to attract effort from politicians In
the passage Of remedial legislation. The
formidable attack upon our judiciary now
Is that the judges do not respond sufh-
GENTLY to popular opinion. 1t Is said that
courts are interposing their obstructive
power to the enforcement Of legislation
looking to the relief Of the oppressed by
declaring laws unconstitutional and by so
called judicial legislation in interpreting
into atatutes words not intended by the