The Manchester journal. [volume] (Manchester, Vt.) 1861-current, 1912-04-18

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Columbia.
Ny native State. 80 tE bin 9
rights declares that tbs safesg q
free government will b. found II 4
( frequent recurrence 10 fandsments
principles "a the few moments ali,
ted 70 ME tonight wish 70 examiu
I The judicial rccall IN the light O
those principles
We have built our institutions 81
Z the proposition that the people hay
the right 10 rule Their viii {
made known through tho suffrage
And when opinions differ. a. the
usually do. the majority must COY
ern. But that Is not the whole q
the proposition n Il we're Their
would be no safeguard whatever fo
the rights Of the minority Th'
maJority might appropriate thei
property II might reduce them 3,
slavery II might even take awal
their lives The proposition take
for granted. then. certain guarantee
for the protection Of the minority
And what are these They ar,
those elementary rights which nc
majority. however large. may even
violate They have been recognized
In constitutions aud bills Of rights
but they We're not created by them
They inhere In free government II.
self, for human freedom is impossi.
h'e without them Among these
rights there Ia none met. .mporten,
than this, that no citizen shall be
deprived Of his liberty or property
except by the judgment OF the law.
and after n trial before an indepen-
dent and impartial tribunal. We
have now come 10 the keystone OF
the arch. II Is this! The majority
OF the legal voters can not constitute
itself this tribunal, II Il can, 1t
still holds the property and lives of
the minority In It's hands, subject TO
Its mere will and pleasure. for there
In no one who can call II to ac-
count.
The cases that may come before
the tribunal are OF two classes. First
those between individuals merely.
Second, those In which one OF the
parties Is, In fact, II not In name,
the people themselves, or the popu
lar majority. BY far the most i'm
portant and most trying cases VIII
be those OF the second class, in
which II Is contended that some fun
damental right OF the individual or
the minority is being violated The
violation win be attempted under
the form of law, and thus the real
party upon one side Is the people,
or the popular majority, whose will
has here found expression In the
form of law, In such cases how Is
The independence and impartiality OF
the tribunal to be secured? How
except by removing II as far as pos
sible from dietation by either party?
Let Ii be remembered that the tri-
Junal. the court, has been created
md its members chosen by one Of
he parties to the controversy, name
Y, the people Clearly, then, the
,nly security the other party can
Iaye Is this That, the tribunal,
nee It is created and its members
hosen, shall be permitted to decide
further interference. If II
S to be checked and overawed by |
me OF the parties: If, the moment 1t |
lecldes the case against that party, |
Is power is to be taken from Ii and |
Bestowed upon others, then 1t Is the
'arty that decides the case, not the
tribunal.
Let us inquire whether this rea-
oning fits the facts OF the present
lme. Take but one example. A
opular majority, through the legls-
lture elected by II, or more direct
Y by the initiative and referendum
nacts statute requiring railroads
0 carry passengers for / cent
lille A test case comes before
he court. The railroad insists that
be act robs IL OF It's property, and
be court so holds. Thereupon the
anne popular majority votes the
idges out OF office and elect to
II their places judges who win re-
erse the decision. Has not the
opular majority constituted itself
le court? May man be the Judge
! his own case?
Let us test the measure by an
Their fundamental principle. A des
ot makes the law and also decides
neither the particular case comes
Thin the law. Or he may Just rs
ell dispense with the law, since nc
re can question his decision that
e case comes within ii. On the
her hand, In a free government
ne body makes tho law, the general
lie, while another body decides
neither the particular case falls
thin the rule. Thus the citizen
protected. We call It keeping {
Q legislative and judicial depart |
ents separate. In a despotism they
Q united. In free government ,
ey are separate. Now IL thu I
pular majority not only makes the }
" but also decides whether a Civ '
case falls within II, then the b
and judicial powers arc Ii
itod ia the same body and the O
yernment ceases to be free and bel a
mes despotlsm Il
II It be objected that the argu. O
INT proves too much, since by his 7
isonlng the rule should be- once b
Judge always a Judge, my answer Il
twofold. First. hold with Hamil h
! that the judicial tenure ought 10