DANGERS TO LIBERTY

Pacific Press Publishing Company · Oakland, California · Nov 5, 1896

FromSigns of the Times, Vol. 22, No. 44.

DANGERS TO LIBERTY.

IN view of the agitation just now in political circles over the jurisdiction and decisions of the Supreme Court; in view of the "Christian nation" decision of Feb. 29, 1892, and the interpretation of the First Amendment to the Constitution in harmony therewith; in view of the decision of February 1, of the same year, in the Louisiana Lottery case, by which Congress was made the censor of the press; and in view of many of the many Sunday law decisions, diametrically opposed to the religious liberty guaranteed by Federal and State Constitutions, the following extracts will be of interest to our readers. They are taken from an article (No. 1, of a series) by Samuel R. Taylor, counselor at law, in the Independent of Oct. 22, 1896.

"Owing to popular ignorance, changes are constantly occurring fraught with the gravest results, and the public are blind and deaf because uninterested. Every one knows, or ought to know, that the law-making power is theoretically entrusted to the Legislature and the Executive; but few realize that the courts are continually manufacturing law. Now, it needs no argument to prove that this is an extension of their immense powers for which they have no warrant, no justification. Their duty is to enforce the law as they find it, not to create it; and occasionally they are conscious of this, and will say, 'The fault is in the statute, but we have nothing to do with that; we must administer the law as we find it.' But such conscientious declarations are rare, and a few examples of the course which we criticize will, perhaps, draw attention to the necessity of reform in this regard.

"Within the past fifty years by steady advances without the aid of the legitimate law-making powers, the courts have altered the substantive rules of law and the rights of individuals."

"Our courts have fostered and strengthened and may almost be said to have invented obstacles to prevent redress to those injured by the negligence or turpitude of others. This is a grave and serious statement; but if true, and we believe its truth demonstrable, then courts and judges have transgressed their limits and those limits should be restored by legislative enactment. There is hardly a reader of this essay who has not immediate knowledge of some injury caused by gross negligence where the sufferer was denied redress because he or she had failed to prove to the satisfaction of the judge (not the jury) the absence of contributory negligence; in other words, because the person injured by gross negligence of another could not prove his own absolute caution the cause has been taken from the jury, and the sufferer denied redress by the judge. There was no such rule of law fifty years ago."

Mr. Taylor then goes on to give specific examples of how, in matters of this kind, the courts have been adding to the law, to that extent that unless a person could "satisfy the judge (not the jury) of his own want of negligence, his case was thrown out of court." "It is almost the only case where a plaintiff is called upon to prove a negative." These things are worthy the attention of all.