New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-08-16


pies OF the Declaration OF Independence. or
the enabling act. to register my approval
5ut now ! am discharging my constitu.
uona function IN respect to the enaetm ne n !
OK the houses Of Congress. I must, there
tore withhold my approval from this reso-
luton. II. IN fact, l do not approve II as
a matter OF governmental policy, o,,u,or
as TO the wisdom Of details in state con-
sttution ought not TO lead me TO set up
my opinion against that OF the people OF
the territory. II is TO be their government,
and while the power OF Congress to with
hold or grant statehood is absolute. the
people about TO constitute state should
generally know better the KIND OF govern
ment and constitution suited to their needs
than Congress or the Executive But when
such constitution contains something SO
destructive OF free government as the judi
cial recall. IL should be disapproved. -,
A government In for the benefit OF al
the people. We believe that this beneht
Is best accomplished by popular govern
ment. because in the long run each class
vision for themselves through their own
voice in government than through the al
truistic interest Of others, however intell'-
gent or philanthropic The wisdom OF ages
has taught that no government can exist
except in accordance with laws. and unless
the people under II either obey the laws
voluntarily or are made TO obey them. In
a popular government the laws are made
by the people-not by all the people-but by
those supposed and declared 70 be compe-
tent for the purpose. as males over TWEEN
ty-one years Of age. and not by all of these
but by a majority OF them only.
Now as the government is for all the
people, and g not solely for a majority OF
item, the majority I'm exercising control
either directly or through us agents ~
bound 10 exercise the power for the benefit
Of the minority well as the majority
But all have recognized that the majority
OF people, unrestrained by law, when
n Cnd oval Enr o. Got n
elaboration and discussion, may do in1us-
tice 70 the minority or 10 the individual
when the selfish interest Of the majority
prompts. Hence arises the necessity for a
constitution by which the Will Of the ma
jority shall be permitted to guide the course
OF the government only under controlling
checks that experience has shown 70 be
necessary 10 secure for the minority its
share Of the benefit 10 the whole people
that popular government is established
70 bestOw.
Not Government for Majority.
ment Of a majority. by d majority. for
majority 81 the people. II is a government
Of the whole people. by majority OF the
whole people under such rules and checks
government for all the people. II IS said
YOU can always trust the people 70 do Jus
tice II that means all the people and they
all agree, YOU can. But ordinarily they do
preted 10 mean that you can always trust
majority Of the people. This IS not In
variaby true and every limitation imposed
BY the people upon the power Of the ma
iorlty In their constitutions is an admission
that II is not always true. No honest,
clear headed man. however great lover or
popular government, can deny that the un-
bridled expression Of the majority Of
community converted hastily into law or
action would sometimes make govern
ment tyrannioal and cruel Constltutioins
QF~o seb1 0lyg ha has
ma iOrity They are the self-imposed re-
straints of a whole people upon majority
Of th>m 70 secure sober action and re.
spect for the rights Of the minority, and or
the Individual IN his relation TO other indi-
viduals and in his, relation 70 the whole
people in their character as state or gov
eminent.
The constitution distributes the functions
If government into three branches-the leg
islative. TO make the laws; the executive, 70
execute them, and the judicial. 70 decide IN
cases arising before n the rights or the
individual as between him and others and
between him and the government. This
division II government into three separate
branches has always been regarded as
great security for the maintenance of free
institutions and the security IS firm ana
assured only when the judicial branch IS
independent and impartial The executive
and Legislative branches are representative
OF the majority Of the people which elected
them I'm guiding the course Of the govern
nent within the limits 0f the constitution.
They must an FOR INC NN0le people. OF
course: but they may properly follow. and
usually ought 70 follow. the views 81 the
majority which elected them in respect 20
the governmental policy best adapted ~
secure the welfare Of the whole people
But the judicial branch Of the govern
ment is not representative Of majority or
the people in any such sense, even II the
mode Of selecting Judges is by popular
election In a proper sense judges are ser
wants Of the people, that is. they are doing
work which must be done for the govern
ment and I'm the interest Of all these PEG
ple bur n Is not work in the doing OF which
they are to follow the will Of the majority.
EXCEPT as that is embodied in statutes
lawfully enacted according 70 consttn-
+ional limitations. They are not popular
representatives on the contrary. 70 I'll
their of1ce properly they must be inde-
pendent They must decide every question
which comes before them according 70 law
and Justice II this question is between
individuals they Will follow the statute, or
tho IN written law II no sta tute applies, and
they take the unwritten law growing out
Of tradition and custom from previous
judicial decisions. II A statute or ord
nance affecting a cause before them is not
lawfully enacted because II violates the
constitution adopted by tho people. then
+bev must ignore the statute and decide the
question as II the statute had never been
rassed This power is a judicial power
imposed by the people on the Judges by the
written constitution.
LEGISLATURE Not Supreme.