Perrysburg journal. (Perrysburg, Wood Co., O. [Ohio]) 186?-1965, 1912-03-15

D.
by constitution intended to protect
the individual and the minority of
the electorate and the nonvotlng ma
jority of the people against the I'M
just or arbitrary action of the major
ity of the electorate. This made it
necessary to introduce into the con-
stitution certain declarations as to
the rights of the Individual which it
was the purpose OF the whole people
to maintain through the government
against the aggression OF any tempo
rary majority of the electorate and to
provide in the same instrument cer-
tain procedure by which the individ-
ual might assert and vindicate those
rights. Then, to protect against the
momentary impulse of temporary
majority Of the electorate to change
the fundamental law and deprive the
individual or the voting minority or
the nonvoting majority of inalienable
rights, the constitution provided a
number Of checks and balances where
by every amendment to the consti-
tuition must be adopted under forms
and with delays that are intended to
secure much deliberation on the part
OF the electorate in adopting such
amendments.
These checks and balances, as has
been pointed out, include the division
of the government into three inde-
pendent branches-the 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 peo-
pie and to regard their rights, is
properly influenced by that discretion
ary policy which he was elected by
his constituents to carry out. In that
sense, he represents the majority of
the electorate. So, too, the legisla-
tive members elected to uphold GER
tain governmental views of the major
ity will properly favor the embodi-
ment of such views in valid legisla-
ton.
Right and Justice.
"But the judiciary are not represen-
tative in any such sense, whether ap-
pointed or elected. The moment they
assume their duties they must en-
force the law as they find it. They
must not only interpret and enforce
valid enactments of the legislature ac-
cording to it's intention, but when the
Legislature in it's enactments has
transgressed the limitations set upon
its power in the constitution, the jul
dicial branch of the government must
enforce the fundamental and higher
law by annuling and declaring invalid
the offending legislative enactment
| Then the judges are to decide be
tween individuals on principles OF
right and justice. The great body of
the law is unwritten, determined by
precedent and founded on eternal
principles of right and morality. This,
the courts have to declare and en-
force. AS between the individual and
the state, as between the majority
and the minority, as between the
powerful and the weak, financially,
socially, politically, courts must hold
an even hand and give judgment with
out fear or favor. In so doing they
are performing governmental func-
tion; but it is complete misunder-
standing 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 majority of an electorate
in respect of the issue for their de-
cision. In many cases before the
judges, that temporary majority is a
real party to the controversy to be
decided. 1t may be seeking to de-
prive an individual or minority of a
right secured by the fundamental law.
In such a case, il the judges were
mere representatives or agents of the
majority to carry out its will, they
would lose their judicial character en-
tirely. and the so-called administra,
tion of justice would be farce.
Having made clear what the func.
ton of our courts is under our form
Of government in maintaining the con,
stitutional 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 individual
we come now to examine the charges
made against the existing system.
concede that the system is not per
feet or as good as it can and ought
to be made. have been preaching
for reform, especially in the enforce
ment of the criminal law, for years
Then, too, have pointed out in ad
dresses and presidential messages the
great need for cheapening the cost
of civil litigation and expediting il
so as to put as little burden or
the poor litigant as possible. The de
fects in our judiciary have not beer
in the corruption OF the judges, but
mainly in the procedure and in the
helpessness of the judges in fury
cases to assist in reaching right con
clusions. The popular impulse has
been to take away the power from the
Judge and to give 1t all to the jury
and this has not been for the public
| pOOd In tho ~ fho oy,i ~