New-York tribune., 1912-03-09
Duties OF the Judiciary.

in any such sense. whether appointed or
elected The moment they assume their
duties they must enforce tho law as they
find H. They must not only interpret and
enforce valid enactments OF the legis-
lature according 10 It's intention, but when
the Legislature I'm It's enactments has trans
gressed the limitations set upon its power
in the Constitution the judicial branch OF
the government must enforce the fundh-
mental and higher law by annulling ana
declaring invalid the offending legislative
Then the judges are TO decide between
individuals on principles OF right ana JUS
written. determined by precedent ana
founded on eternal principles Of right ana
morality This the courts have 70 declare
and enforce. AS between the indlvldua. anu no
the state as between the majority ana inc
minority, AZ between the powerfui anu inc
weak financially. socially. ponticany, cou, ,d =
must hold an even hand ana give J"ub
ment without fear or favor.
In so doing they are performing a gov
ornamental function; but IL is complete
misunderstanding Of our form OF govern &.
ment, or any kind Of government that
exaIts Justice and Righteousness, to as
sumo that judges are bound to follow tho
will OF the majority Of an electorate in
.espect OF tho issue for their decision.
In many cases before the judges, that
temporary majority is a real party 10 the
, controversy 10 be decided. IL may be seek
Ing TO deprive an Individual or a minority
OF a right secured by the fundamental law.
In such q case. if the judges were mere
representatives or agents OF the majority TO
carry out it's will, they would lose their
judicial character entirely and the so-called
administration OF justice would be farce.
Defects Acknowledged.
Iayin, ,,ade cIear what tho function of
our courts Is under our form OF govern
ment In maintaining the constitutional
guarantees OF rights and In preserving
against the usurpation OF the majority the
rights OF the non-voting part OF the people
and OF the voting minority and OF the indi-
vidual, we come now 10 examine the
charges made against the existing system.
I concede that the system Is not perfect
or as good IL can and ought TO be made.
| have been preaching for reform. .espc-
cially In the enforcement OF the criminal
out in addresses and Presidential messages
the great need for chcapening the cost OF
civil litigation and expediting II SO as 10
put as little burden on the poor litgant
as possible.
The defects in our judiciary have not
been in the corruption OF the judges, but
mainly in the procedure and In the help
lessness of the judges in jury cases to as
sist in reaching right conclusions. The
popular impulse has been to take away the
power from the judge and TO give IL all 70
lie good in the enforcement OF the criminal
law. Such defects as i have described are
com oletely within the control OF the legis-
latures of the states and Congress, ana l
am glad to say that the movement Tor re-
form has been accelerated by action OF the
state and national bar associations. ana
we may look for decided progress IN the
near future. ..t a.
dious remedies are not of the spectacular
character to call for political discussion
or 10 attract effort from politicians IN the
passage OF remedial legislation. Inc Ior-
midable attack upon our judiciary now rs
that the judges do not respond suiiicientiy
10 popular opinion. Il is said that courts
are interposing their obstructive power 10
the enforcement OF legislation looking 10
the relief of the oppressed by declaring laws
unconstitutional and by so-called judicial
legislation In interpreting into statutes
words not intended by the Legislature. L
do not intend to discuss these charges, al,
though IL reduced 20 specific cases II would
be easy TO show many OF them TO be un-
founded For the purposes OF this discus,
sion | may admit that courts have erred
in this regard. have unduly broadened con-
stjtutional restrictions In order 10 invalidate
useful statutes, or have given such statutes
a wrong construction.