{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_31504/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_31504","id":"gutenberg_31504","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/31504","summary":null,"tags":["Category: Law & Criminology","Category: Philosophy & Ethics","Courts -- United States","Justice","Justice, Administration of"],"text":"Produced by The Online Distributed Proofreading Team at\nhttps://www.pgdp.net (This file was produced from images\ngenerously made available by The Internet Archive/Canadian\nLibraries)\n\n\n\n\n\n\n\n\n\n                          CONCERNING JUSTICE\n\n                                  BY\n                          LUCILIUS A. EMERY\n\n\n                   NEW HAVEN: YALE UNIVERSITY PRESS\n                      LONDON: HUMPHREY MILFORD\n                       OXFORD UNIVERSITY PRESS\n                              MDCCCCXIV\n\n\n\n\n                           COPYRIGHT, 1914\n                       BY YALE UNIVERSITY PRESS\n\n               First printed August, 1914, 1000 copies\n\n\n\n\n                            TO MY CHILDREN\n\n                          HENRY CROSBY EMERY\n                      ANNE CROSBY EMERY ALLINSON\n\n\n\n\n        THE ADDRESSES CONTAINED IN THIS BOOK WERE DELIVERED IN\n        THE WILLIAM L. STORRS LECTURE SERIES, 1914, BEFORE THE\n        LAW SCHOOL OF YALE UNIVERSITY, NEW HAVEN, CONNECTICUT.\n\n\n\n\n                               CONTENTS\n\n\n  CHAPTER                                                       PAGE\n     I. THE PROBLEM STATED. THEORIES AS TO THE SOURCE OF\n        JUSTICE. DEFINITIONS OF JUSTICE                            3\n\n    II. THE PROBLEM OF RIGHTS. DIFFERENT THEORIES AS TO THE\n        SOURCE OF RIGHTS                                          31\n\n   III. THE PROBLEM OF RIGHTS CONTINUED. THE NEED OF LIBERTY\n        OF ACTION FOR THE INDIVIDUAL                              43\n\n    IV. JUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE\n        INDIVIDUAL AND THE SAFETY OF SOCIETY                      56\n\n     V. JUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL\n        ACTION. THE BEST FORM OF GOVERNMENT                       77\n\n    VI. THE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE\n        POWERS OF THE GOVERNMENT. BILLS OF RIGHTS                 95\n\n   VII. THE INTERPRETATION AND ENFORCEMENT OF CONSTITUTIONAL\n        LIMITATIONS NECESSARILY A FUNCTION OF THE JUDICIARY      110\n\n  VIII. AN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR\n        JUSTICE                                                  121\n\n    IX. THE NECESSITY OF MAINTAINING UNDIMINISHED THE\n        CONSTITUTIONAL LIMITATIONS AND THE POWER OF THE\n        COURTS TO ENFORCE THEM.--CONCLUSION                      146\n\n\n\n\nCONCERNING JUSTICE\n\n\n\n\nCHAPTER I\n\nTHE PROBLEM STATED. THEORIES AS TO THE SOURCE OF JUSTICE. DEFINITIONS\nOF JUSTICE\n\n\nFor centuries now much has been written and proclaimed concerning\njustice and today the word seems to be more than ever upon the lips of\nmen, more than ever used, but not always appositely, in arguments for\nproposed political action. Hence it may not be inappropriate to the\ntime and occasion to venture, not answers to, but some observations\nupon the questions, what is justice, and how can it be secured. It was\ndeclared by the Roman jurist Ulpian, centuries ago, that students of\nlaw should also be students of justice.\n\nBy way of prelude, however, and in the hope of accentuating the main\nquestion and presenting the subject more vividly by comparison and\ncontrast, I would recall to your minds another and even more\nfundamental question asked twenty centuries ago in a judicial\nproceeding in distant Judea. It is related that when Jesus, upon his\naccusation before Pilate, claimed in defense that he had \"come into\nthe world to bear witness unto the truth,\" Pilate inquired of him\n\"What is truth?\"; but it is further related that when Pilate \"had said\nthis he went out again unto the Jews.\" Apparently he did not wait for\nan answer. Perhaps he repented of his question as soon as asked and\nwent out to escape an answer. Men before and since Pilate have sought\nto avoid hearing the truth.\n\nIndeed, however grave the question, however essential the answer to\ntheir well-being, there does not seem to be even now on the part of\nthe multitude an earnest desire for the truth. Their wishes and\nemotions cloud their vision and they are reluctant to have those\nclouds brushed aside lest the truth thus revealed be harsh and\ncondemnatory. The truth often causes pain. As said by the Preacher,\n\"He that increaseth knowledge increaseth sorrow.\" People generally\ngive much the greater welcome and heed to him who tells them that\ntheir desires and schemes are righteous and can be realized, than to\nhim who tells them that their desires are selfish or that their\nschemes are impracticable. It has always been the few who have sought\nthe truth, resolute to find it and declare it, whether pleasant or\nunpleasant, in accord with the wishes of mankind or otherwise. Such\nmen have sometimes suffered martyrdom in the past, and often incur\nhostility in the present, even when seeking that truth on which alone\njustice can securely rest.\n\nNevertheless, so closely linked are truth and justice in the speech,\nif not the minds, of men, there should be some consideration of\nPilate's question. Whether truth is absolute or only relative has been\nperhaps the most actively discussed topic in the field of philosophy\nfor the last decade. Into this discussion, however, we need not enter,\nfor such discussion is really over the problem of determining the\nproper criterion of truth. Wherever be this criterion, whether in some\nquality of inherent rationality or in some utilitarian test of\npracticability, the truth itself has some attributes so far\nunquestioned and of which we may feel certain as being inherent,\nnecessary, and self-evident.\n\nTruth is uncompromising. It is unadaptable; all else must be adapted\nto it. It is not a matter of convention among men, is not established\neven by their unanimous assent, and it does not change with changes of\nopinion. It is identical throughout time and space. If it be true now\nthat since creation the earth has swung in an orbit round the sun, it\nwas true before the birth of Copernicus and Galileo. If it be true now\nthat the sum of the three angles of a triangle is equal to the sum of\ntwo right angles, it was always true and always will be true, true at\nthe poles and at the equator, true among all peoples and in all\ncountries, true alike in monarchies, oligarchies, and democracies.\n\nTruth is also single. There are no different kinds of truth, though\nthere may be innumerable kinds of propositions of which truth may or\nmay not be predicated. Whichever criterion the philosophers may\nfinally agree upon, it will hold in all propositions alike. The truth\nof a proposition in mathematics is the same as the truth of a\nproposition in any other science, physical, social, political, or\ntheological. It can be no more nor less true in each and all. Again,\nin every science, social and political as well as others, and as to\nevery proposition in any science, the truth is to be discovered, not\nassumed by mere convention; and men must discover it and discover it\nfully at their peril. Failure even after the utmost effort will not be\nforgiven. If the truth be found it will be a sure guide in life. If it\nbe not found the lives of men will so far go awry. That it may be\ndifficult to find, that we may never be sure we have found it, makes\nno difference.\n\nAre there any attributes of justice of which we can speak so\nconfidently as being necessary, inherent, and self-evident? That\njustice ranks next to truth, if not with it, seems to have been, and\nto be, the general judgment of mankind. It has engaged the thought and\nfired the imagination of the greatest minds. A few quotations from\nsuch, ranging from ancient to modern times, will illustrate this.\nThe Hebrew Psalmist gloried that \"justice and judgment\" were the\nhabitation of Jehovah's throne. Aristotle wrote, \"political science is\nthe most excellent of all the arts and sciences, and the end sought\nfor in political science is the greatest good for man, which is\njustice, for justice is the interest of all.\" Early in the 12th\ncentury the jurist Irnerius, distinguished for his learning and\nfor his zeal in promoting the revival of the study of law and\njurisprudence, and also as the reputed founder of the famous Law\nSchool at Bologna, imaged justice as \"clothed with dignity ineffable,\nshining with reason and equity, and supported by Religion, Loyalty,\nCharity, Retribution, Reverence, and Truth.\"\n\nSix centuries later Addison, famed as a clear thinker and writer,\nthus wrote of justice: \"There is no virtue so truly great and godlike\nas justice.... Omniscience and omnipotence are requisites for the full\nexercise of it.\" Almost in our own time Daniel Webster, called in his\nday the great expounder and even now reckoned among the greatest of\nmen intellectually, in his eulogy upon Justice Story thus\napostrophized justice: \"Justice is the great interest of man on earth.\nIt is the ligament which holds civilized beings and civilized nations\ntogether. Wherever her temple stands and so long as it is duly\nhonored, there is a foundation for social security, general happiness,\nand the improvement and progress of our race.\" Perhaps, however, none\nof these laudations is so vividly impressive as is the pithy remark of\nan old English judge that \"injustice cuts to the bone.\"\n\nBut what is this justice, declared to be so great a virtue, so\nineffable, so supremely important? I have said we feel certain of some\nattributes of truth. Do we know or can we know anything certain about\njustice? Is it something above and apart from the will of men, or is\nit simply a matter of convention among men? Is it immutable, or does\nits nature change with changing times and conditions? If mutable, does\nit change of itself or do men change it? Is it universal or local, the\nsame everywhere or is it different in different localities? Is it the\nsame for all men and races of men or does it differ according to\nclasses and races? Again, is it single or diverse in its nature? Is\nthere more than one kind of justice? We hear of natural justice,\nsocial justice, industrial justice, political justice. What do they\nwho use those terms mean by them? Do nature, society, industry,\npolitics, each have a different criterion? Still again, and briefly,\nis justice an inexorable law like the law of gravitation or can its\noperation have exceptions? Is it simply a quality of action or\nconduct, or, as stated by Ulpian, is it a disposition or state of\nmind? Finally, is it a reality or, as Falstaff said of honor, is it\nafter all \"a word,\" \"a mere scutcheon?\"\n\nI am not so presumptuous as to venture an answer to any of these\nquestions except perhaps the last. As to that, I appeal to our\nconsciousness, to our innate conviction that there does exist\nsomething, some virtue, some sentiment, however undefinable in terms,\nholding men together in society despite their natural selfishness, and\nwithout which they would fall apart. It is this virtue, this ligament\nof society, that we call justice. We feel that the word is not a mere\nword, but that it connotes a vital reality in human relationship. If\nthis reality be ignored, men cannot be held together in any society.\n\nIf justice be the greatest good, as so generally asserted, then its\nnegative, or injustice, must be the greatest evil. Hence error in\nmen's opinions of what is justice will work that greatest evil.\nSociety as a whole is liable to error in respect to justice; has often\nbeen mistaken in the past and may be mistaken today. The individuals\ncomposing society are seldom, if ever, wholly disinterested and\ndispassionate in their judgments. Each individual is prone to believe\nthat what is apparently good for himself or his group or class, is in\naccord with justice. Himself persuaded that he is battling for\njustice, he does not see that he may be battling only for some\nadvantage over others, for some individual relief from common burdens,\nfor some privilege not to be accorded to others; does not see that\nwhat he is battling for may cause injustice to others. Through\nignorance of the real nature of justice, the grant to one of his plea\nfor what he calls justice may work grievous injustice to others. So\nwhen altruists, warm with sympathy, obtain the enactment of laws\nintended for the betterment of the less fortunate, they may at times\ndo injustice to others and even to those they hoped to benefit.\nHistory records many instances where laws intended to insure justice\nhad the contrary effect. Many a statute designed to prevent oppression\nhas itself proved oppressive in operation. Many a theory of justice\nhas been found to work injustice. A conspicuous and familiar instance\nis found in the history of the French Revolution. The Jacobins\nbelieved that their theories if given effect would usher in the reign\nof justice in France. They obtained power and exploited their theories\nonly to bring in the Reign of Terror, that reign of terrible\ninjustice.\n\nAs mistakes and grievous mistakes have been made in the past as to\nwhat is justice, so they will be made now and in the future, and can\nbe lessened only by greater wisdom and forethought, by greater effort\nto consider justice apart by itself, with philosophical detachment,\nwith minds unclouded by pity, sympathy, charity, and other like\nvirtues, on the one hand, or by envy, hate, prejudice, and like evil\nsentiments, on the other. True, men are more enlightened now and\neducation is more general, but society is more complex, with more\ndiverse and conflicting interests, than formerly. The social mechanism\nis now so intricate that even a slight disturbance in one part may\ndisarrange the whole. Injustice to one may injure the many. Hence the\nduty of ascertaining as completely as possible the real nature of\njustice is as imperative today as ever. As declared by Ulpian, this\nduty is especially incumbent upon those who have to do with the\nframing or administration of the laws, since justice can be enforced\nonly by law.\n\nIn any inquiry into the nature of justice we get little help from the\nwisdom of the ancients. They wrestled with the question but seem to\nhave been as puzzled as we of today. Indeed, Plato represents the sage\nSocrates as frankly confessing his inability to answer satisfactorily\nthe persistent question \"What is justice?\" The question comes up for\ndiscussion by Socrates and some friends at the home of Cephalus at the\nPiraeus. Socrates criticizes and punctures the definitions advanced by\nthe others until Thrasymachus, apparently with some heat, challenges\nSocrates to give an answer of his own to the question \"what is\njustice?\" and not to content himself, nor to consume time, with merely\nrefuting others. After some further discussion of various aspects of\nthe question, Socrates finally says, \"I have gone from one subject to\nanother without having discovered what I sought at first, the nature\nof justice. I left the inquiry and turned away to consider whether\njustice is virtue and wisdom, or evil and folly, and when there arose\na further question about the comparative advantages of justice and\ninjustice I could not refrain from passing on to that. The result of\nthe whole discussion has been that I know nothing at all. I know not\nwhat justice is and therefore am not likely to know whether or not it\nis a virtue, nor can I say whether the just man is happy or unhappy.\"\nGranting that the confession may have been intended ironically, the\nfurther discussion did not result in any practical solution, even if\nin one possible in Plato's ideal, but impossible, state. Indeed, the\ninquiry is not yet closed and will not be until the millennium.\n\nStill, upon a question so old, so important, so persistent, so\ningrained in human society, and even now receiving such diverse and\nconflicting answers, a brief consideration of the earlier beliefs and\ntheories may not be useless. As said by Bishop Stubbs, the historian,\n\"The roots of the present lie deep in the past and nothing in the past\nis dead to him who would learn how the present came to be what it is.\"\nThe roots should be examined by him who would understand the tree.\n\nIn Homer we get a glimpse of a theory of his time, to wit, that each\nseparate decision given by the magistrate in any litigated controversy\nwas furnished to him by Zeus specially for that case. The Greek word\nfor such a decision was _themis_, and it was supposed that somewhere\nin the Pantheon was a corresponding deity whose special function was\nto furnish the appropriate themis for each case. This deity was\nshadowily personified as the goddess Themis, the daughter of heaven\nand earth, the companion and counselor of Zeus. It was she who\nsummoned gods and men to council and presided unseen over their\ndeliberations. Hence she came to be regarded as also the spirit of\norder without which the Greek philosophers, notably Plato, held there\ncould be no justice.\n\nThis theory that justice and even the laws were but the will of deity,\nrevealed in various ways, was long generally accepted. In Rome, in the\ntime of the kings, the king was the Pontifex Maximus, and as such,\nwith the help of the College of Priests, declared the laws and decided\nlawsuits. For some time also under the Republic, when a vote was to be\ntaken in the Comitia upon a proposed law, the question was thus put:\n\"Is this your pleasure, O Quirites, and do you hold it to be the will\nof the gods?\" Under the Empire, despite the reasoning of many\nphilosophers and lawyers that the Emperor derived from the people his\npower to make laws and declare the law in any given case, he assumed\nand was assumed to have derived the power and inspiration solely from\nthe gods.\n\nThe early Christian Church also preached the doctrine that the ruling\npower in the state, however established, was ordained of God and as\nsuch was entitled to the obedience of the pious. This belief that\njustice and judgment were simply the will of God, to be ascertained,\nnot by reason but by other means, was so general and deep that such\ncrude devices as trials by ordeal and battle were often resorted to\nfor determining guilt or innocence and other questions of fact.\nIndeed, resort to such expedients for determining questions of law, as\nwell as questions of fact, was not unknown. In the tenth century under\nthe Saxon King Otto a question arose whether upon the death of their\ngrandfather his grandchildren by a prior deceased son should share in\nthe inheritance along with their surviving uncles. The king ordered a\ntrial by battle, which being had, the champions for the grandchildren\nwere the victors. It was therefore held to be the divine will that\ngrandchildren by a prior deceased child should inherit direct from\ntheir grandfather. I may here remind you that trial by battle was not\nformally abolished in England until well into the 19th century. And\nthere is even now professed a belief that the will of God can be\nascertained by counting ballots. \"Vox Populi Vox Dei\" is still a\nshibboleth.\n\nBut the doctrine that justice is heaven born, superior to and\ncontrolling the opinions and wills of men, did not escape challenge\neven in ancient times. Those sects of philosophers known as Epicureans\nand Sophists, consistently with their theory of the nature of virtue\nin general, maintained that justice was merely a name for such\nconventions among men as they should adjudge best for their own\nutility and happiness. The most vigorous champion of this latter\ntheory appears to have been one Carneades, a Greek philosopher of the\nsecond century B.C., said to have been the founder of the third\nAcademy and expounder of the philosophy of probabilities and to have\npossessed the acutest mind of antiquity. In a course of lectures at\nRome he stated the arguments for the orthodox view of justice and\nthen boldly assumed to answer them and demonstrate that justice was\nnot a virtue at all as virtue was defined by the philosophers, but was\nmerely a convention; was what men should agree to be a sound basis for\nthe maintenance of civil society, and hence that it varied with times,\nplaces, circumstances, and even opinions. This argument evidently had\nmuch effect upon public opinion, for Cato urged in the Senate that\nCarneades be banished because dangerous to the state.\n\nSo great was the influence of Carneades that a century later Cicero, a\ndisciple of the Stoic school of philosophy, thought it necessary to\nrefute him specifically as the chief heretic, and to uphold the\northodox theory against his arguments. Cicero denounced with eloquent\nwarmth the doctrine that utility was the foundation of justice. He\ndeclared that, not utility, but nature, was the source of justice,\nthat justice was a principle of nature, the ultimate principle behind\nall law. To abridge the familiar quotation from his \"De Republica,\"\n\"There is a law which is the same as true reason, accordant with\nnature, a law which is constant and eternal, which calls and commands\nto duty, which warns and terrifies men from the practice of deceit.\nThis law is not one thing at Rome, another at Athens, but is eternal\nand immutable, the expression and command of Deity.\" In his treatise\n\"De Legibus\" he declared that men are born to justice; that right is\nestablished not by opinion but by nature; that all civil law is but\nthe expression or application of this eternal law of nature; that the\npeople or the prince may make laws but these have not the true\ncharacter of law unless they be derived from the ultimate law; that\nthe source and foundation of right law must be looked for in that\nsupreme law which came into being ages before any state was formed.\n\nThis theory of the Stoics so eloquently urged by Cicero was\npractically the _jus naturale_ of the Roman jurists of classical\ntimes, though more moderately expressed by them. It does not seem to\nhave been wholly academic, but to have been actually applied at times.\nIn his history of Rome, Mommsen relates that even during the nearly\nabsolute sway of Sulla, after the fall of Marius, the Cornelian Laws\nenacted to deprive various Italian communities of their Roman\nfranchise were ignored in judicial proceedings as null and void; also\nthat, contrary to Sulla's decree, the jurists held that the franchise\nof citizenship was not forfeited by capture and sale into slavery\nduring the civil war with Marius. Later, when the church became a\npower in the state there are instances where laws adjudged to be\ncontrary to the laws of God were refused effect. In England as late as\nthe middle of the 17th century Chief Justice Hobart, a judge of high\nrepute, asserted that \"even an act of Parliament made against natural\nequity, as to make a man judge in his own case, is void in itself for\nthe laws of nature are immutable and they are the laws of laws.\" In\nthe 18th century Blackstone assented to the doctrine of a _jus\nnaturale_ and wrote of it: \"This law of nature being coeval with\nmankind and dictated by God himself is of course superior in\nobligation to any other.... No human laws are of any validity if\ncontrary to this, and such of them as are valid derive all their force\nand all their authority, mediately or immediately, from this\noriginal.\" True, Blackstone combated the doctrine that duly enacted\nstatutes were to be held void if the judges thought them contrary to\nreason, but he admitted that that extreme doctrine was more generally\nheld. In this country the doctrine of a higher law than the\nConstitution even, and to be obeyed rather than the Constitution and\nlaws enacted in accordance therewith, has had and even now has earnest\nadvocates.\n\nBut the contrary doctrine of Carneades and the Sophists would not\ndown. After Cicero and the civilians, after Hobart and Blackstone,\ncame our modern utilitarians, or sophists, Bentham, Mill, Austin, and\nothers, who have vigorously maintained with weighty arguments the\nutilitarian theory of justice; and that theory is now generally\naccepted by lawyers and statesmen as at least the most workable\ntheory in human affairs. There still exists, however, in the minds of\nmany the belief that above and behind all the turmoil and strife of\npolitics, all the flux and reflux of social movements and public\nsentiment, the confusion of enactments, amendments, and repeals of\nstatutes, the swaying of judicial opinion, there is some law of nature\nor in nature, some criterion, which if ascertained and obeyed would be\nperfect justice.\n\nThis question of the origin, the foundation of justice, whether it\nbe of God or of men, seems to have been much more debated than the\nquestion what is the nature of justice whatever its origin or\nfoundation. Yet some attempts, other than those attributed to\nSocrates, have been made of old to give a definition of justice. The\nearliest description I have found is that of the early Pythagoreans,\nwho, in accordance with their practise of symbolizing the virtues by\ngeometrical figures, designated justice by the square, and the just\nman by the cube. Plato seems to have had a theory of justice when he\nwrote in the \"Gorgias,\" \"Nature herself intimates that it is just for\nthe better to have more than the worse, the stronger than the weaker,\nand in many ways she shows that among men as well as among animals\njustice consists in the superior ruling over and having more than the\ninferior.\" In these days our first impulse may be to denounce Plato's\nstatement as altogether wrong if not worse. We should remember,\nhowever, that Plato was not considering any altruistic virtue such as\nkindness, sympathy, benevolence, generosity and the like, but only\nwhat nature indicates to be the essential condition of successful\nassociation. Thus interpreted, are we prepared to confute the\nstatement? Do we know of any state of society in human or animal life\nat any time, past or present, of which the contrary of Plato's\nstatement is true?\n\nBut passing over all other attempts of the ancients to define justice,\nnone of which seems to have been much regarded by contemporary\nopinion, I will only cite the most famous, that by Ulpian, the\nrenowned jurist of the best period of Roman jurisprudence, whose\nwritings were most drawn upon by the learned compilers of the\nInstitutes and Digest of Justinian; viz., \"Justitia est constans et\nperpetua voluntas jus suum cuique tribuendi,\" or \"Justice is the\nconstant and perpetual will to render to every one his right.\" This\ndefinition was adopted by the compilers as correct and made the\nintroduction to the Institutes. It thus received the imperial sanction\nand was quoted wherever the law of Rome prevailed, down through\nmedieval times and later, almost as if it were an inspired or at least\nauthoritative definition not to be questioned. But notwithstanding the\nacclaim with which this definition was hailed, I question that it was\nany improvement on that of Aristotle, who tersely defined justice as\n\"that virtue of the soul which is distributive according to desert.\"\nIndeed, I think Aristotle was nearer the mark.\n\nUpon the revival of the study of law and jurisprudence in the 11th\nand 12th centuries several of the more famous jurists of that time,\nAzo, Irnerius, Placentinus and others, essayed definitions of justice,\nbut they do not seem to have improved upon Ulpian. Their definitions\nwere vitiated by theological assumptions and none of them has become\na text for commentators or students. Neither in modern times has any\ndefinition of justice been suggested which has received such universal\nassent as did that of Ulpian in his time and for centuries afterward.\nWe may therefore return to Ulpian's definition as our point of\ndeparture, since his definition is substantially that suggested\nearlier by Aristotle, and observations on the later will also apply in\nmany respects to the earlier.\n\nUlpian's definition is elegant in style, but it does not carry us very\nfar in our inquiry. We are told indeed that justice is a state or\ndisposition of the mind, the disposition to render to everyone his\nright or, as put by Aristotle, is the disposition to distribute\naccording to desert. It was this statement that captured the medieval\njurists and which they made their text, but it is now regarded as\nincomplete and even inaccurate. One may have the disposition, the\ndesire, the will, to render to every one his right, but unless he can\nknow what is his fellow's right he may unwittingly fail to accord it\nto him and thus unwittingly do injustice. It evidently is not enough\nto have the disposition or will; hence the definition is incomplete,\nand any definition is incomplete which does not furnish a criterion\nfor determining what is the given man's right.\n\nBut the definition as far as it does go is not strictly accurate. The\nman of malevolent disposition who would wrong his fellow if he dared,\nmay yet, to avoid unpleasant consequences to himself, render fully to\nevery other man his right. It would seem, therefore, that justice is\nan attribute or quality of conduct rather than a disposition or state\nof mind, and of conduct toward others rather than of conduct toward\none's self. It is only of the conduct of men in their relations to\nother men that we can predicate justice or injustice. One's conduct\nmay result in good or evil to himself and so be wise or unwise, but\nassuming, what probably is never the fact, that it affects only\nhimself, in no way affects any other, his conduct is neither just nor\nunjust. Robinson Crusoe, until the arrival of the man Friday, had no\noccasion to consider our problem.\n\nBut, admitting that each man's conduct, whether active or passive,\ndoes affect some other person, what is the criterion by which to\ndetermine the justice or injustice of that conduct? It is not enough\nto say that if the conduct in any degree impedes the other person in\nthe enjoyment of any of his rights it is unjust, otherwise not; for\nthen the question comes to the front, what is the right of that other\nin the given case? Indeed, this latter question is the crux of the\nproblem of justice. The derivation of the word \"justice\" also shows\nthis. The Latin _justitia_ or _justitium_ according to some scholars\nis compounded of _jus_, right, and _sisto_ or _steti_, to place, or\nto cause to stand, and hence the whole word may be held to signify the\nmaintenance of _jus_ or right. With the question of _jus_ or right\ncorrectly answered, the problem of justice is practically solved. The\nright of the one being known, the effect of any particular conduct of\nanother on that right, and consequently its justice or injustice, is\ndeterminable with comparative ease. Hence to make progress in our\ninquiry we must consider the problem of rights, for we almost\ninstinctively accept as correct so much of Ulpian's definition as\nimplies that justice is to be predicated of the act of rendering to\neveryone his right. We instinctively feel that if we render to another\nhis full right we do him full justice, and that if we ourselves are\ndeprived of any right we suffer injustice. What is his or our right is\ntherefore the real question. This will be our next subject for\nconsideration.\n\n\n\n\nCHAPTER II\n\nTHE PROBLEM OF RIGHTS. DIFFERENT THEORIES AS TO THE SOURCE OF RIGHTS\n\n\nThe problem of Rights is also centuries old. There have been in later\nyears glowing tributes to human rights even more than to justice,\nthough the sentiment of rights is egoistic, while that of justice is\nin some measure altruistic. There have also been diverse opinions in\nthe past, as now, as to the source, foundation, and nature of what are\ncalled Rights, as there were and are of justice. A brief review of\nthese opinions and of the changes in them may present the problem more\nvividly.\n\nIn patriarchal times there could be no political questions about\nrights. The head of the family was supreme and sole ruler and judge.\nEven in Rome under an organized civil government the pater familias\nwas long left the power of life and death over the members of his\nfamily. When families and tribes were combined in states, government\nwas long conducted on the theory that as the individual had belonged\nto the family or tribe into which he was born or adopted, so he now\nbelonged to the state, to be directed and disposed of as the state\nmight order. What he might enjoy of life, liberty, or property was the\ngift of the state, subject to revocation at will. Plato reflects this\ntheory in making Hippias declare that the measure of man's right is\nwhat the state commands. The total abolition of the liberty of\ninnocent persons by holding them in slavery was not deemed any\ninfringement of any right of theirs. This theory was acted upon in\ndemocratic as well as in monarchical states. Slavery was as lawful in\nAthens, Sparta, and republican Rome as in Persia or Egypt. True, there\nwere rebellions and revolutions at times, but, though sometimes\nprovoked by oppression, they were usually to acquire the power of\ngovernment and not in defense of individual rights. The Plebeians\nrevolted to obtain a greater share in the governing power. The civil\nwars of Marius and Sulla were not waged for liberty but for power. In\nSicily, where the slaves under Eunus had for a time wrested the\ngoverning power from their masters, they did not hesitate to enslave\nin turn.\n\nThe doctrine that the individual man has some rights by nature which\nthe state ought not to disregard had no place in ancient nor medieval\ngovernments. The English Magna Charta purports to be a grant from the\nking and, though framed by the barons and forced upon the king, it\ncontains no assertion of rights by nature. The rights claimed were\nclaimed as accustomed rights previously conferred and enjoyed, such as\nthe laws and customs of the time of Henry I. Apart from provisions as\nto improved methods of administration, the language of the Charter\nimplies restoration rather than revolution.\n\nSo in the Petition of Right in the reign of Charles I, no appeal was\nmade to natural rights, but the demand was for accustomed privileges,\nfor the observance by the king of the old laws and customs of the\nrealm, especially those in force under Edward I and Edward III. In the\nPetition, the Charter of King John is cited, not as a schedule of the\nrights of man in the abstract, but as \"The Great Charter of the\nLiberties of England,\" implying that the liberties therein named were\nnot the natural heritage of men in general but the peculiar heritage\nof Englishmen, under English law. The prayer of the Petition is simply\nthat the king shall accord the people of England \"their rights and\nliberties according to the laws and statutes of the realm.\"\n\nSo in the Bill of Rights framed by Parliament and approved by William\nand Mary upon their accession to the throne, it was not asserted that\nthe acts of James II complained of were contrary to any natural right\nof the subject, but that they \"were utterly and directly contrary to\nthe known laws and statutes and freedom of this realm.\" The purpose of\nthe Bill of Rights was declared by the Parliament in behalf of the\npeople to be \"for the vindicating and asserting their ancient rights\nand liberties.\" In the earlier remonstrances of the legislatures of\nthe English colonies in America against various acts of the king and\nParliament, only the accustomed rights of Englishmen were claimed to\nbe violated. The colonists, at first, claimed as against king and\nParliament no rights not accorded to Englishmen in England.\n\nBut though the notion that man has rights by nature, not granted by\nthe state and which the state should respect as such, did not for\ncenturies find expression in state papers or state action, it was by\nno means non-existent. It was early in the minds of many and found\nsome expression in the writings of jurists and philosophers. In Rome\nit was a corollary of the doctrine of the existence of a _jus\nnaturale_. The statement of that doctrine by Ulpian incorporated in\nthe Digest implies a doctrine that man does have some rights anterior\nto and independent of the state. So far, however, as the statement\nwas susceptible of that construction it was not generally acted upon\nand remained practically a dead letter. The doctrine itself survived,\nhowever, engaging the attention and receiving the support of various\nwriters. It gradually gained ground among students of politics and\nspread rapidly after the Protestant Reformation, so-called, because of\nthe impetus given by that event to the exercise of private judgment.\nAs early as the 17th century, though finding little or no expression\nin the Petition of Right or Bill of Rights, the doctrine that\nindividual rights were derived from nature rather than from the state\nwas generally entertained by the Puritans and other dissenters from\nthe Established Church, and was invoked by them to some extent as\njustifying the revolution of 1640. The doctrine also passed over to\nthe Puritan Colonies in America and early found some expression there.\nIn the Massachusetts \"Body of Liberties\" of 1641 there is a suggestion\nthat the liberties, etc., therein recited, were those demanded by\n\"humanity, civility and christianity\" rather than \"accustomed\"\nliberties. It was further asserted that these liberties were to be\nenjoyed by the people of the Colony and their posterity forever.\n\nThe later disputes as to the proper limits of the power of the British\nKing and Parliament over the American Colonies led the colonial\nlawyers and politicians to a study of the theory of natural rights\nadvanced by various political writers, English and Continental. It has\nbeen said, I think with truth, that the writings of Locke, Voltaire,\nRousseau, Montesquieu, and even of Blackstone, were more widely read\nand studied in America than in Europe. The brilliant writings of Tom\nPaine also had great influence. The result was that the doctrine of\nnatural rights came to be generally accepted by the people of the\nColonies as the real foundation of their claims and the real\njustification for their resistance to the objectionable acts of the\nKing and Parliament. In 1774 the first Continental Congress in its\nDeclaration of Rights declared that the people of the Colonies had\nthose rights by \"the immutable laws of nature\" as well as by their\ncharters and the principles of the English Constitution. Two years\nlater in the Declaration of Independence the representatives of the\npeople made no reference to their charters nor to the principles of\nthe English Constitution as the foundation of their claims, but based\nthem exclusively on the theory of natural rights. They declared: \"We\nhold these truths to be self-evident, that all men are created equal;\nthat they are endowed by their Creator with certain unalienable\nrights; that among these are life, liberty and the pursuit of\nhappiness.\"\n\nThe same influences undoubtedly contributed to bring about the French\nRevolution of 1789, and the theory of natural rights again found\nexpression in the French state papers of that period. In August of\nthat year, in the early stages of the Revolution, the following\n\"Declaration of the Rights of Man and Citizen\" was put forth by the\nNational Assembly and afterwards made the first two articles of the\nConstitution of 1791, viz., \"Art. 1. Men are born and remain free and\nequal in rights. Social distinctions can be based only upon public\nutility. Art. 2. The aim of every political association is the\npreservation of the natural and imprescriptible rights of man. These\nrights are liberty, property, security and resistance to oppression.\"\n\nThus in the latter part of the 18th century the doctrine that man has\nsome individual rights by nature, not by grant or prescription, and\nnot alienable, obtained official recognition in two great nations. It\nhas since been formally and officially iterated in the Constitutions\nof many American States and has been proclaimed and invoked as an\nimpregnably established political truth. Nevertheless the doctrine is\nonly a theory, not yet demonstrated nor undoubted. It has been\nassailed and in the opinion of many refuted, by Bentham, Mill, and\nother utilitarian writers, the successors of Epicurus, Carneades and\nthe Sophists. Even in France and America it is now repudiated by many\nand declared to be an obstacle to social and political improvement.\nStill, despite the vigorous arguments against the doctrine, there\nremains the innate feeling and a general belief that society abridges\nindividual rights instead of conferring them. In support of this\nnotion may be cited the fact that the statutes of any state or nation\nare almost wholly restrictive or compulsory in character, and rarely,\nif ever, permissive. From the Decalogue down, the language of the law\nhas been compulsive, \"Thou shalt\" and \"Thou shalt not\"; and men\ngenerally act upon the theory that what society does not forbid by\nstatute or custom the individual may do.\n\nIn passing now from the region of theory, of speculative opinion, to\nwhat seems to me the region of facts, of actual conditions, of actual\ntraits of human nature, I wish it to be understood distinctly that in\nwhat I may say about rights I am considering only the precepts of\njustice, and that I differentiate those precepts from the precepts\nof religion, charity, philanthropy, benevolence, and other similar\nvirtues, and even those of what is loosely called humanity. If it be\ntrue as asserted by Addison that justice is the greatest and most\ngodlike of the virtues, it does not follow that the just man, to be\njust, must possess all or any of the other virtues. One can be just\nwithout being religious, charitable, or philanthropic, and even\nwithout earning the reputation of being humane.\n\nI wish further to premise that I am considering our subject only with\nreference to those who have grown to the age of self-maintenance and\nconsequent freedom. I do not take into account the rights of children\nunder that age.\n\nWith these premises borne in mind, I would now in the next chapter\ncall attention to some propositions of fact, which I shall assume\nto be established by science and history and by the reader's own\nexperience and observation, and which I think bear more or less\ndirectly on our subject.\n\n\n\n\nCHAPTER III\n\nTHE PROBLEM OF RIGHTS CONTINUED. THE NEED OF LIBERTY OF ACTION FOR\nTHE INDIVIDUAL\n\n\nMen are endowed by nature with sundry powers, faculties, capacities,\nphysical and mental. These, however, are not at all uniform, but are\ndiverse in kind and degree in different races of men and in different\nindividuals of the same race. Nature seems to work through diversity\nrather than through uniformity, indeed through inequality rather than\nthrough equality. Not all men are born poets, nor are all poets\nequally good poets. Not all men are by nature adapted for intellectual\npursuits, and those who are so adapted are not in that respect equally\nfavored by nature. Even in the field of the simplest manual labor\nthere is great diversity of natural capacity. It seems to be nature's\ntheory that mankind, the human race as a whole, will be better served\nby diversities, by differences in kinds and degrees of powers, than by\nuniformity and equality.\n\nFurther, normal men are also by nature endowed, if not with rights,\nyet with sundry instincts, desires, passions; also with sundry\nfeelings, emotions, sentiments; and also with some degree of reason\nand power of choice. Some of these may not be apparent in infancy, but\nthey appear in a greater or less degree of intensity as the individual\ndevelops.\n\nAmong these instincts or desires is the desire to live, the desire to\nserve each his own welfare and that of his offspring, and the desire\nto decide for himself what will best serve that welfare. As a\ncorollary, he also has by birth the desire for freedom to exercise any\nand all of his talents and powers in such manner, to such extent, and\nin pursuit of such objects as he prefers, or to be idle if he prefers\nidleness. Further, he has the instinct of acquisitiveness, the desire\nto appropriate to himself and retain control of such material objects\nas he thinks may serve his welfare and that of his offspring, and\nespecially does he have a natural instinct and desire to possess and\ncontrol exclusively for himself whatever, much or little, he has\nwrenched from nature or otherwise obtained by the exercise of his\nvarious powers. This instinct is also observable in some animals. A\ndog will hide a bone for his own exclusive future use. Man also\ninstinctively claims for his own the natural increase of what he has\nacquired, the young of his beasts, the fruits of his orchard.\n\nThis desire for control includes the desire to store up, to use, to\nconsume, to transfer, and even to destroy at will. This desire is seen\nin young children, who will try to clutch and hold whatever attracts\nthem, and who will hoard or break toys or throw them away as their\nwhims may be. As they get older the desire to control grows stronger,\nfor they destroy less and preserve more in order to have greater\nmeasure of control; but still they desire freedom to consume or\ndestroy at their own will. So strong is this desire of control that\nmen wish to direct what shall be done with their property after their\ndeath.\n\nIf one is balked or hindered in the gratification of any of these\ndesires, there is excited in him a feeling of resentment against the\ncause, even if it be only some force of nature. There is a note of\nanger in the cries of a child over interference with his play, the\ndeprivation of any toy or other thing he may have or desire. That the\nwind or the rain was the cause does not sooth him. In the mature man\nalso, anger adds some force to the kick he gives even inanimate\nobjects unexpectedly impeding him. Who of us has ever fallen over a\nchair in the dark without mentally, at least, consigning it to\nperdition? The old law of Deodand was an expression of this feeling of\nresentment against inanimate objects even. By that law, according to\nBlackstone, whatever chattel was the immediate cause of the death of\na reasonable creature was forfeited to the crown, as when a cart ran\nover a man. By the laws of Draco whatever caused a man's death by\nfalling upon him was to be destroyed or cast out of the community.\nThus a statue having fallen upon a man, it was thrown into the sea.\nThe Mosaic law savagely declared: \"If an ox gore a man that he die,\nthe ox shall be stoned and his flesh shall not be eaten.\"\n\nIs not this instinctive feeling of resentment at interference with\none's person, liberty, or property, the rudiment of a later developed\nidea, or sentiment, of rights possessed? Resentment is felt only when\none is deprived of something he feels he is entitled to. Granting that\nnature has not endowed man with rights, it has imbued him with a\nbelief that he has rights, and also with a disposition to defend them.\n\nMan is also born into a material world of natural forces, and hence to\ngratify his desire to live and serve his own welfare and that of his\noffspring, he must adapt himself to his environment, fit himself to\nwithstand heat and cold, provide himself with food and shelter. He not\nonly desires to, but he must, exercise his powers of mind and body and\nhence should be free to exercise them to that extent at least. Nature\ndoes not feed, clothe and shelter man. It only provides the raw\nmaterial which man must himself find, take, and convert by his labor,\nmanual and intellectual, into food, clothing, shelter, and whatever\nelse he desires.\n\nBut man is also born into association with other men, into some sort\nof social organization, and well for him that he is. It is not\nsociety, however ill organized, that has caused, or today causes,\npoverty. That is the primitive condition of the human race. It is only\nthrough some social organization ensuring to man freedom for his labor\nand security for his savings that he can escape poverty. If each\nindividual by his own unaided efforts had to find the raw material,\nmold it to serve his needs and desires, and also defend it from\nattacks by others, his life would be one of dire poverty, scarcely\nabove that of the higher animals.\n\nFurther, nature has so formed man that he not only needs but desires\nassociation with other men. Children instinctively flock together for\ncommon play, and this social instinct continues through life and\nextends to work as well as play. We find men everywhere in the\ncivilized world voluntarily entering into associations for various\npurposes thought by the members to be of service to themselves or\nothers. But there is over and surrounding these associations that\nlarger association, racial or territorial, which we call society. This\nis the necessary association into which man is born and in which he\nmust live if he desires other than mere animal life. This society must\nbe maintained if the race of men, as men and not as mere animals, is\nto continue. Indeed, society itself has a sort of instinct for\nself-preservation. It is not a mere aggregation of individual units\nbut is an association of sentient correlated beings with a resultant\nlife and movement of its own.\n\nAssociation, however, does not extinguish nor appreciably lessen the\nnatural instincts, desires, feelings, sentiments, etc., of the\nindividual, though they may be made less active by continued\nrestraint. Association even extends the scope of man's individual\ndesires and activities. He now desires freedom to make arrangements\nwith other men of such nature and for such purposes as he and they may\nagree upon. If he is prevented by authority from making such\narrangements he feels some resentment, feels that his right is\ninfringed. He also comes to desire that those who have entered into\narrangements or contracts with him should perform their part, and he\ninstinctively feels resentment at their neglect or refusal to do so.\nHe feels that he has a right to the performance of the contract.\n\nAnother desire is developed or given play by society,--the desire to\nequal one's fellows in the race for benefits, and, that accomplished,\nto excel them. He desires to win in every game, to be the victor in\nevery contest of physical or mental powers, and in business as well as\nin sports. If he is held back he feels resentment against the power\nassuming to restrain him. He thus feels he has a right to equal and to\nexcel if he can. Whether competition should be enforced or stimulated\nby society is a question in economics. What affects the question of\nrights and hence of justice is whether this desire to excel should be\nimpeded.\n\nIn this association, however, each individual man finds himself in\nclose contact all through life with other men having like instincts,\ndesires, feelings, emotions, etc., as his own; and who also feel like\nresentments and have like notions of rights possessed. If each is left\nby society free to gratify these desires or to enforce his claims of\nrights in his own way unmindful how his action may affect others;\nif they be left free to \"take who have the power\" and only they may\n\"keep who can,\" society could not exist and civilization, if not the\nrace, would perish.\n\nSociety, therefore, must frame and enforce rules for the regulation\nand control of the conduct of its individual members, must even\nrestrain them to some extent from the gratification of some of their\ndesires. On the other hand, these instincts, desires, etc., must still\nbe reckoned with. They cannot be wholly suppressed nor even very much\nreduced or impeded if society is to progress or even exist. There must\nbe left to the individual some degree of liberty of choice and action.\nAn eminent American jurist, James C. Carter, vividly stated this,\nthough perhaps in the extreme, when he wrote that the sole function of\nlaw and legislation is to secure to each individual the utmost liberty\nwhich he can enjoy consistently with the preservation of the like\nliberty to all others. \"Liberty (he wrote), the first of blessings,\nthe aspiration of every human soul, is the supreme object. Every\nabridgment of it demands an excuse, and the only good excuse is the\nnecessity of preserving it.\" (Carter's \"Law. Its origin and growth,\"\npage 337.)\n\nThere must also be left to the individual some personal motives for\nlabor and thrift, for, after all, it is the toil of individuals that\nsupports society and its members. It is the surplus products, not\nconsumed, but stored up by the economy of individuals that constitutes\nthe energy of society. However it may be improved in the future, the\nnature of the average man today is such that he will not toil and deny\nhimself without prospect of rewards to accrue to himself for his own\npersonal use. He will not strive to earn and then conserve his\nearnings unless he can have them for his own, to control, use and\ndispose of at his pleasure. However it may be with a few unselfish,\ndevoted souls, men as a rule are not yet so altruistic as to devote\nthemselves exclusively to the good of others, of society. I think it\nevident that if the impelling natural desire to serve one's self be\nwholly or even largely disregarded by society, little would be\nproduced or saved by voluntary labor and self-denial. The alternative\nwould be the restoration of some system of enforced labor, of slavery,\nfor the vast majority of men. At this day, after centuries of\nexhortation to practise the virtues of benevolence, of brotherly love,\nof self-sacrifice for the good of others, men do not from pure love of\nhumanity voluntarily endure heat and cold, expend their labor and\nsavings in working mines, in braving seas, in building and operating\nfactories, railroads and steamships, in growing corn and cotton. Even\nthose public offices, in which the altruist might find the best\nopportunities for serving the people, are not much sought for unless\nsome personal honor or pecuniary profit be attached to them. Should\nsociety decree that the laborer, whether with hands or brain, should\nhave no individual reward proportionate to the efficiency of his\nlabor, but only his numerical proportion of the product of all\nlaborers, I fear the efficiency of all classes of laborers, manual\nand mental, would fall to the \"irreducible minimum.\"\n\nThe foregoing statements and inferences lead to the question, how far\nshould society go in undertaking to regulate the conduct and restrict\nthe freedom of the individual,--that freedom which would be his if he\nwere alone in the world? It may be thought that this is a question of\nexpediency for economists and sociologists, and so it is largely, but\nit is also a question of rights and hence of justice, since every\naction or non-action of society affects the freedom of the individual\nin the gratification of his desires or, in other words, in his pursuit\nof happiness.\n\n\n\n\nCHAPTER IV\n\nJUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE INDIVIDUAL AND THE\nSAFETY OF SOCIETY\n\n\nThe question stated at the close of the last chapter is most important\nand, in a sense, is perhaps the crux of the whole matter. Not only may\nerror in the solution of the question injuriously affect the material\ninterests of individuals and hence of society as a whole, but it may\ncause unhappiness far greater than that caused by any material loss,\nviz., a sense of injustice. As said by the English judge, \"Injustice\ncuts to the bone.\"\n\nAt the outset I accept Herbert Spencer's theory that the idea of\njustice contains two sentiments, positive and negative; the one the\nsentiment of the individual that he has the right by nature to the\nunimpeded use of his faculties and to the benefits he acquires by\nsuch use; the other the consciousness that the presence of other\nindividuals with similar claims of rights necessitates some limitation\nof his own claims. Out of those two sentiments is evolved, I think,\nthe idea of justice or injustice according as they are or are not in\nequilibrium. They suggest the definition that justice is the\nequilibrium between the full freedom of the individual and the\nrestrictions thereon necessary for the safety of society. The\nrestraint of personal conduct within too narrow limits, the necessity\nof which cannot be made clear, excites resentment, stimulates angry\npassions, and hence causes unhappiness through a sense of injustice.\nRestraint within necessary limits only, the necessity of which can\nbe seen, arouses no resentment; on the contrary, it satisfies the\nindividual, favors harmonious cooperation, profits society and\nincreases the happiness of its members, through the appreciation of\nthat necessity.\n\nBut for the fixing of the boundary line between necessary and\nunnecessary restraints upon personal conduct, some other matters still\nare to be considered. I have said that man instinctively feels\nresentment at interference with whatever he may think is his right to\ndo, or get, or keep. If this interference is from any of his fellow\nmen his resentment is greater than when it is from natural forces.\nThere arises the desire for vengeance, the desire to \"get even,\"--to\nuse a common phrase,--by inflicting a corresponding injury on the\noffender. An eye for an eye, a tooth for a tooth, is instinctively\ndemanded now as of old. If unable to inflict a corresponding injury\nthere is the desire to inflict an equivalent injury. To paraphrase\nBacon, revenge is justice running wild.\n\nThis instinct should be heeded by society. If it be necessary for its\nown preservation that society restrain this instinct, prohibit private\nvengeance, then it must itself provide for satisfaction of the\ninstinct; the offender must be compelled to make full compensation or\nelse be made to suffer in turn some deprivation of rights claimed by\nhim that shall be commensurate with the offense. This should be done\nspeedily and gratuitously so far as possible. Delay and expense cause\nresentment in the suitor for justice and so cause injustice. In doing\nthis, society not only protects itself but it restores an equilibrium\nof rights disturbed by the offender. This restoration of equilibrium\nis an essential element in the concept of justice. Of course, as\nsociety progresses and human nature improves, this desire of the\ninjured for vengeance on the offender becomes weaker. The virtues\nof mercy, forgiveness, or willingness to forego the demand for\npunishment, come into play and society is allowed to attempt to reform\nrather than to punish, or is allowed to pardon altogether. These\nvirtues, however, are not part of the concept of justice. If the\npunishment seems inadequate, or the pardon seems undeserved, there\nremains, or is again excited, the feeling of resentment. The\nequilibrium is not restored.\n\nAnother sentiment or feeling is to be reckoned with in order to secure\nthis equilibrium in society. The young, untrained child is impatient\nof all restraint. It is only by experience that he learns he must\nsubmit to restraint if he would have any sort of association with his\nfellows. He learns that he must submit to the rules of the game if he\nwould have a part in the game. As he comes to maturity he becomes\nconscious that society must impose restraint upon him and hence feels\nno resentment against all restraint, as does the untrained child. He\ndoes, however, feel resentment if restraints are imposed upon him in\nhis pursuit of happiness which are not imposed upon others in their\npursuit. Similarly he feels resentment if exemptions from restraint\nare allowed some others and not allowed him also. Furthermore, he is\nquick to note any discrimination against himself and prone to imagine\nit when in fact there is none.\n\nAlmost as soon as the average child is placed with others under a\ncommon authority, as in a public school, he begins to complain of the\nteacher's partiality to other pupils. He will stay in no game where\nthe rules operate unequally against him. He insists on an even chance\nwith his fellow players. When later in life he engages in business he\nresents any favoritism shown by the government of his state or town to\nothers in the same or a similar business. This feeling is especially\nnoticeable in the matter of taxation. If one believes the taxes\nimposed by the government are unnecessarily heavy he may feel some\nresentment, but his resentment is much greater if he believes he is\novertaxed in comparison with his fellows, that they are escaping\ntheir proportionate share of the burden, or that taxes are imposed\non his products in order to favor the products of others, as when\noleomargarine was taxed to handicap it in its competition with butter.\n\nThis feeling of resentment at inequality of restraints and burdens\nimposed and exemptions granted is not ignoble, is not a feeling to be\nsuppressed or even concealed. It is far different from the feeling of\nenvy. If I can only afford to ride in a trolley car I may envy the man\nwho can afford to ride in a luxurious motor car and yet not feel\nwronged. But if I am excluded from a public street car to which he is\nadmitted I have a different feeling, that of resentment. I may be\nperfectly willing that all others, rich or poor, shall use the streets\nto the full extent that I do, but if it be proposed that my use shall\nbe limited in order that some others may for their private purposes\nhave more than an equal use with me, my feeling is not one of envy\nbut of indignation. So I can appreciate that if I wilfully or through\ncarelessness injure another I should make full compensation, and hence\ncan cheerfully submit to the law compelling me to do so; but if the\nlaw undertakes to exempt any other person from a similar liability,\nI feel a keen sense of wrong. Conversely, the most strict\ndisciplinarian, the martinet even, if otherwise competent receives\nready obedience and respect if it is seen that he treats alike,\naccording to their merits, all subject to his authority. This feeling\nis natural. Nature is impartial in the application of its laws. It\nallows no exemption. Its fires burn the weak as well as the strong,\nthe child as well as the man, the poor as well as the rich. One star\ndiffers from another star in glory, but no one of all the millions of\nstars is exempt from any of the laws set by nature for stars.\n\nThis feeling of right to impartiality of treatment had some faint\nexpression in the Massachusetts \"Body of Liberties\" of 1641, in which\nit was declared that the liberties, etc., therein enumerated should\nbe enjoyed \"impartially\" by all persons within the jurisdiction of\nthe colony. It was more distinctly recognized in the Connecticut\nDeclaration of 1818 and a part of the Connecticut Bill of Rights\ntoday, \"That all men when they form a social compact are equal in\nrights and that no man or set of men are entitled to exclusive public\nemoluments or privileges from the community.\" Again it appears in the\nfederal and some state constitutions in the provision against the\ngranting of titles of nobility. It seems to be at least impliedly\nrecognized in the XIVth amendment to the United States Constitution\nin the clause that no state \"shall deny any person within its\njurisdiction the equal protection of the laws,\" since \"the equal\nprotection of the laws\" necessarily implies protection against unequal\nlaws, laws favoring some at the expense of others or of the whole. If\nthe state favors one more than another it does deny that other equal\nprotection. I do not subscribe to the doctrine that \"the greatest good\nof the greatest number\" is to be sought. The only legitimate search is\nfor the good of the whole number without discrimination for or against\nany one. This sentiment found expression in the once popular slogan,\n\"Equal rights for all. Special privileges for none.\" I say once\npopular, for today it would seem not popular in practice. True,\nspecial privileges are still loudly denounced, but under the name of\nspecial exemptions, they are still demanded by those who denounce\nthem most loudly.\n\nIt is not inequality of natural powers of body or mind, nor inequality\nin natural conditions, that excites this feeling of resentment I have\nnoted. The man of feeble natural powers may envy him of strong natural\npowers, but he can see that society, that law, is not responsible for\nthat inequality. If one finds himself from lack of natural ability or\nadaptiveness unable to accomplish what others of superior ability or\nadaptiveness easily accomplish, and hence he fails to receive the\nprize they so easily win, he may feel great disappointment and regret,\nbut if honest with himself will not attribute his failure to the\ninjustice of society.\n\nIt is not essential to the preservation of society and the race that\nsuch inequalities should be removed, that all men should be reduced\nto a dead level of capacity, that human nature should be ignored.\nIt is strongly felt, however, that society should not itself create\nartificial inequalities, should not allow one man or set of men a\nliberty it will not allow to others, should not impose burdens on one\nman or set of men to be borne by them alone while others are exempt;\nor if it does undertake to do so it should be able to demonstrate that\nsuch artificial inequality is necessary for the safety of all. The\nintensity of this feeling against artificial inequalities is so great\nthat men sometimes prefer equality before the law even to liberty.\nWhen the British ambassador said to Madam De Stael that Frenchmen had\nno more liberty after the Revolution than before, she answered that\nthey had acquired equality before the law and they preferred that to\nmore liberty. This sentiment was tersely and well expressed in the\nFrench Declaration of Rights of 1795. \"Equality consists in this, that\nthe law is the same for all whether it protects or punishes.\"\n\nOf course, no assertion of rights can be carried to the extent of the\ndictum, \"Fiat Justitia ruat Respublica,\" for if the state fall, all\nhopes of justice fall with it. When the alternative is the conquest\nof the particular society by invasion or its disorganization by\nrebellion or rioting or otherwise, some of its members must submit to\nthe sacrifice of some or all of their rights. Nature will sacrifice\nindividuals for the preservation of the race. Society must sometimes\ndo the same. \"Inter arma silent leges.\" But such times are exceptional\nand not within the scope of our inquiry.\n\nTo sum up the matter, justice is the according to every one his right,\nand that right is such freedom of action in gratifying one's desires\nas can be exercised in harmony with like freedom by others. In other\nwords, it is equal freedom, equal restraint. It is order and harmony.\nPlato and Aristotle were right in teaching that order is an essential\nelement of justice.\n\nBut who is to determine the matter? Who is to determine what degree of\nrestraint or liberty is necessary to secure this order and harmony,\nthis justice? Obviously it is society, or rather, individuals acting\nas a whole through society and not each individual acting for himself,\nthat must determine such questions. Society has the responsibility. If\nit imposes too many restraints or imposes them unequally it excites,\nas said before, resentment and antagonism, sometimes to the extent of\nresistance. If it imposes no more restraints than are necessary and\nimposes them equally, order and harmony are secured. And when we have\nthis equal freedom with equal and only necessary restraints we have\norder and harmony,--in other words, justice. Indeed, to repeat,\njustice in some of its aspects may be considered as the desired\nequilibrium between the needs of society and the interests of its\nindividual members.\n\nI have left out of the account various virtues,--pity, sympathy,\nphilanthropy, generosity and the like. Though these make social life\nmore agreeable and contribute much to the sum of human happiness, they\nare not essential to the existence of the race or society. Society as\nan organization is not held together by these virtues, though many of\nits weaker members might suffer and perish if they were non-existent.\nAllow men as much freedom of thought and action as can be exercised\nwithout interference with like freedom of others, but restrain them\nfrom exercising any greater freedom, and they can and will live\ntogether in society though they may be wholly selfish in feeling and\nconduct. What is called the golden rule, that we should do to others\nas we would have them do to us, is a precept of philanthropy, of\ncharity, not of justice. The rule enunciated by Confucius five hundred\nyears before Christ, the rule that we should not do to others what we\nwould not have them do to us, is sufficient for the existence of\nsociety. The French Convention of 1793 stated the proposition in these\nwords: \"Liberty is the power that belongs to man to do whatever is not\ninjurious to the rights of others; it has nature for its principle,\njustice for its rule, law for its defense: its normal limit is the\nmaxim, Do not to another that which you do not wish to be done to\nyou.\"\n\nThis order and harmony, however, are not easily secured. Not only are\nthere honest differences of opinion as to what restraints are\nnecessary and how and on whom they should be imposed, but society is\ndivided into groups or classes with interests conflicting, or thought\nto be conflicting, and each seeking to impose restraints on others\nwhile retaining freedom for themselves. While professing to demand\nmore liberty and equality, they are often really insisting on greater\nrestraint and inequality. The successful insistence of the\ntrades-unions of England in securing from Parliament a statute\nexempting their funds from answering in damages for injuries caused by\nthem is a conspicuous instance. Another and equally glaring example is\nthe effort in this country to exempt from the law against combinations\nin restraint of trade, combinations to increase the cost of living by\nincreasing the prices of agricultural products and the prices to be\npaid for labor. The effort seems to be to compel men to compete in the\nuse of their savings no matter how wasteful the competition, and to\nforbid men competing in the use of their labor, no matter what the\nidleness thereby caused. I think it a truism that whoever seeks to be\nexempted from the restrictions or liabilities he would impose on\nothers, seeks not justice, but to do injustice.\n\nAnother hindrance arises out of the very virtues of pity and sympathy.\nThese impel many to endeavor, not to persuade, but to compel the more\nefficient and prudent who have by their farsightedness, courage,\nindustry and thrift made good provision for themselves and their\noffspring, to provide also for the inefficient and the improvident. To\nbe asked to give to these does not offend any sense of right, but if\none be told he must give he feels resentful at once. He feels he has a\nright to decide for himself to whom and to what extent he shall give\nof his savings. Society did not come into existence nor does it now\nexist to correct the inequalities of nature, the inequalities of\nnatural powers, nor to prevent the efficient and prudent receiving and\nenjoying the results of their efficiency and prudence. Nature itself\nmakes no such effort. It rather tends to eliminate the less efficient\nand preserve the more efficient. Even if society may strive to\npreserve the inefficient and improvident, should it do so by hampering\nand restraining those wiser and more capable? We must expect nature to\ndeal with society, with states and nations, as it does with\nindividuals. If a state by its laws discourages the exercise to its\nfull extent of the efficiency of the few and renders less severe the\npenalties for the inefficiency and imprudence of the many, it cannot\nlong maintain any advantageous position among other nations. Whatever\nthe precepts of religion, of philanthropy, or of other virtues may\nrequire, the precepts of justice do not require society to support men\nin idleness nor even to furnish them with employment. Neither do the\nprecepts of justice require the state to furnish opportunities, nor\neven to establish equality of opportunity, but only equality of right\nto take advantage of opportunity. It is a saying, but not a fact, that\nopportunity knocks once at every man's door. Nature does not bring\nopportunities, much less equal opportunities, to men's doors. It\nrequires men to go out and search for opportunities, or at least to be\non the watch for them, as it requires men to search or watch for other\nthings they desire; and he of the quickest perception and most\nfarsighted will soonest see them, and when seen he does not feel any\nobligation to share them with others less vigilant or even less\nfortunate. Society does not support its members, they support it and\nmust support it and themselves by their own exertions, find their own\nplace, find employment for themselves, so far as the precepts of\njustice are concerned.\n\nHowever prevalent the sentiment that more than equality of right to\nuse his opportunities is due to any one, it is not an instinctive\nsentiment. The contrary is the fact. Unless we are dominated by some\nother sentiment than justice, we instinctively yield assent to\nAristotle's proposition that the prize flute should be awarded to the\nbest flute player whether opulent or indigent, literate or illiterate,\ncitizen or slave. A group of small children exploring the fields and\nwoods for wild flowers will concede to each what flowers he finds\nwhether by his better eyes or better luck. So with groups of small\nboys fishing in the streams and brooks. In games of cards for stakes,\nthe players do not expect to hold cards of equal value and they\nconcede the stakes to the winner, whether won by his greater skill or\nsuperior cards.\n\nAlso there is an instinctive sentiment that the evil results of one's\nown conduct should be borne by him alone. If one suffers loss through\nhis own misjudgment, incapacity, or want of care, then, whatever the\nprecepts of other virtues may require, we do not feel that justice\nrequires us to bear any part of that loss. On the contrary, we feel\ninstinctively that he should bear the loss alone, that it is the\nnatural penalty for his lack of judgment, capacity, or care. If my\nneighbor neglects to insure his house and loses it by fire, I see no\nreason why he should not bear the loss alone.\n\nIn this connection, perhaps I should not omit to notice references\noften made to the rights of labor, the rights of capital, property\nrights, and personal rights, as if they were different in their nature\nand importance. I do not as yet see such difference. All rights are\npersonal rights, and the right of each to control his labor, his\nsavings, his person, and his property is the same. I am not yet\nconvinced that the right of the laborer to make use of his labor is\nsuperior to that of the capitalist to make use of his capital; that,\nwhatever his greater need, the right of one without property is\nsuperior to that of one who has property; that the right to get is\nsuperior to the right to save. It is also loudly proclaimed that\n\"property rights\" are of little importance compared with \"human\nrights,\" unmindful of the truth that the right \"of acquiring,\npossessing and defending property\" is, as much as any other, a human\nright and, as such, necessary to be maintained if the race is to rise\nabove its primitive condition of poverty. However, I do not see that\nthe differences, if any, affect the general question of individual\nrights.\n\nThe conclusion I arrive at is this: Society, and with it the race,\ncannot survive unless it restrains to some extent individual freedom\nof action, nor can any particular society long survive if it carry\nthat restraint too far. It should, therefore, ascertain and maintain\nthe line, the equilibrium, between necessary freedom and necessary\nrestraint. It is only by such action of society that justice can be\nestablished and the welfare of the race be advanced. This brings us to\nthe question of how and by what instrumentalities society can best\nperform this momentous task, the securing of justice. This will be\nconsidered in the next chapter.\n\n\n\n\nCHAPTER V\n\nJUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL ACTION. THE BEST\nFORM OF GOVERNMENT\n\n\nIn the present state of civilization society cannot act effectively\nfor determining and maintaining the line, the equilibrium, between\nnecessary freedom and necessary restraint, or in short, justice,\nexcept through some governmental organization with power to define and\nenforce. Appeals to altruistic sentiments will not suffice. This truth\nwas recognized by the framers of our federal and many state\nconstitutions, in naming first among the purposes of government the\nestablishment of justice.\n\nAny government, however, or rather those entrusted with its\nadministration, may through mistake or wilfulness do injustice to some\nof its subjects. It has often done so in the past and the future is\nnot free from the danger. The very possession of power excites a\ndesire to use it, and it is an admitted characteristic of our human\nnature that those vested with power, political or other, are prone to\nexercise it unduly, to abuse it. Men in authority are often said to be\n\"drunk with power.\" Hence to ensure justice the governmental\norganization should be such that the limits of the various powers of\nthe government be carefully defined and its administrators be kept\nwithin those limits.\n\nSome years ago I might have pointed to our own federal and state\ngovernments as the best in form and character for establishing justice\nand rested there. In later years, however, the superiority of our\nsystem is questioned, and radical changes are urged, and indeed some\nhave been made, in the federal system and in that of some of the\nstates. I feel, therefore, that I should make some defense of the\nsystem, believing as I do that in its general form and character it is\nbest adapted to secure firmly as much individual liberty of action\nand equality of right as is consistent with the welfare of the whole\nnumber, or, in other words, best adapted to secure justice.\n\nIt has become a familiar maxim that the functions and powers of\ngovernment may all be grouped in three classes or departments,\ncorresponding to the duties already named: (1) that of determining\nwhat rules and regulations should be observed, what restraints and\nduties should be imposed upon its subjects; (2) that of determining\nwhether in a given case any of these rules, etc., have been violated;\nand (3) that of punishing their violation and otherwise enforcing\ntheir observance. These three groups have come to be called the three\npowers of government and to be designated as the legislative,\njudicial, and executive, though they are usually named in another\norder as the executive, legislative, and judicial.\n\nThe most efficient form of government for good or evil, and the\nquickest to act, is undoubtedly that in which all of these powers are\nunited in a single individual. If that individual were always strong,\nyet peace-loving, self-controlled, sagacious and exclusively devoted\nto the welfare of his subjects, that form of government would perhaps\nsecure them justice most surely and speedily. Such men, however, are\nrare and such governments have been found to be invariably and almost\ninevitably arbitrary in their dealings with their subjects, and in the\nplenitude of their power to become oppressive. While they may\neffectually protect their subjects from foreign aggression and\ndomestic anarchy, their tendency is to impose burdens and restrict\nindividual liberty more than necessary, and to disregard the innate\ndesire of men for liberty or at least for equality of restraint. This\nform of government has already largely disappeared and is further\ndisappearing, though it may again be resorted to for the restoration\nof order, should the present forms of government fail to prevent\nviolence and preserve the peace.\n\nBut other forms of government have not been and are not yet wholly\nfree from the same objectionable tendency. The vesting of all these\ngovernmental powers in a group or class of persons instead of one\nperson has been followed by the same results. Aristocracies or\noligarchies have the same tendency and even in a greater degree. They\nhave proved even more selfish and tyrannical than the single ruler.\nThey, like all crowds, are less sensitive in conscience, less moved by\nappeals to reason, than is the single individual. They offend more the\nsentiment of equality. The French Revolution was not so much against\nthe king as against the nobility, who with their oppressive feudal\nexemptions had excited the resentment of the people at large. It was\nnot till after he had cast in his lot with the emigres that the king\nwas deposed and guillotined.\n\nNor have pure democracies, in the few instances where they have\nundertaken to exercise directly all the powers of government, showed\nless tendency to be arbitrary and inconsiderate of individual freedom\nand desires. The nearest approach to such a government was that of\nancient Athens where the populace sent into exile, practically without\ntrial, Aristides, called the Just, Miltiades, the victor of Marathon,\nand Themistocles, the victor of Salamis. The excesses of the Paris\nCommune of 1870 during its reign, the lynchings of today by mobs of\nso-called \"respectable citizens\" who assume the power to accuse, judge\nand execute all at once, indicate how much regard unrestrained\ndemocracies would have for the rights of their individual members.\n\nNevertheless, despite the danger of more or less arbitrariness, of\nmore or less oppression of the individual, any government must be made\nstrong enough perfectly to maintain order and peace among its\nsubjects. Order is earth's as well as heaven's first law. The goddess\nThemis in the early Greek mythology was the goddess of order as well\nas the supplier of _themistes_ or decisions. She was present as the\nspirit of order in the councils of gods and men. The government that\ncannot or will not maintain order and peace, prevent violence and\nfraud, enforce individual rights and redress individual wrongs\ncompletely and promptly, is so far a failure and whatever its form\nshould be reformed or overthrown. Even military despotism is better\nthan disorder.\n\nOn the other hand, there must be taken into account the tendency,\nalready mentioned, of the possessor of unlimited power over others to\nuse it for his own benefit or pleasure at the expense of those subject\nto his control, where not restrained by affection or like virtues.\nUnder all governments there has been more or less friction between the\npersons governing and those governed; more or less strife, sometimes\nculminating in rebellion and even revolution. If it be said that under\na government by the people directly, a pure democracy, such as seems\nto be advocated at this day, there would be no distinction between\ngovernors and governed, that all would be governors and governed\nalike, the answer is that in a pure democracy the governing power is\nand can be exercised by only a part of the people, a majority it may\nbe, but still only a part. This part are the governors. The other\npart, perhaps nearly as numerous, are governed. Friction and even\nfactious strife would still exist. Indeed, a government by a pure\ndemocracy ruling directly would probably be more arbitrary than any\nother, as was the case in Athens. The government by one, or that by a\nfew, would be restrained to some extent by public opinion, would\nrefrain from extreme measures lest they excite effectual resistance,\nbut a majority would feel no such restraint. It would itself\nconstitute public opinion and it would be less likely to fear\nresistance.\n\nIt is evident, therefore, that the frame of government should be such\nas to secure uniformity in its action so that it shall not act\narbitrarily and unequally on its subjects. I assume that no sane man\nwould desire to live under any government where the wielders of the\ngovernmental power, one or many, are entirely without legal restraint.\nWe all desire normally, not only order and peace, but also personal\nliberty and equality of rights. The problem, then, is how to order the\nframe of government so that it shall be strong enough to protect us\nindividually as well as collectively, but not left able to oppress us\nor any of us. As said by Alexander Hamilton, we \"must first enable the\ngovernment to control the governed, and in the next place oblige it to\ncontrol itself.\"\n\nOne great step toward such a form of government was made in the\nestablishment of our federal and state governments by giving effect to\nthe theory of the tripartite nature of governmental powers, entrusting\neach of the three to a different person or group of persons, or, in\nother words, to a different department, each restraining the other\ndepartments from exceeding their defined powers, so that the\ngovernment, however democratic, shall not run wild. At this day,\nhowever, even this feature of our form of government is assailed as\nhampering the people and their government and greatly delaying desired\nreforms. It may be admitted that a government with its powers thus\nseparated in different departments is not able to act as quickly as\ndesired by zealous persons confident of the excellence of their\nschemes and impatient for their realization, but, on the other hand,\nit is less liable to act too hastily, less liable to act arbitrarily,\nor to disregard individual rights and interests.\n\nThe idea of a division of governmental powers is not of recent origin.\nAristotle argued that the judges should have no other political power,\nshould not themselves enforce their decisions. In Rome under the\nRepublic there was divided between the pretor and the judex the power\nto decide controversies. The pretor had other duties, but the judex\nwas confined to the single duty to hear and determine. The framers of\nour Federal Constitution and of our early state constitutions did not\nact hastily nor unadvisedly. As heretofore stated, the long\ncontroversy with Great Britain over the relations between that country\nand her Colonies, the arbitrary acts of the British King and\nParliament, caused in the Colonies a profound study of the nature of\ngovernment: what should be its purposes and how best to effect its\npurposes and avoid its abuses. The principal men among them in each\nColony were familiar with the history of governments and with the\ntheories of government advanced by European lawyers and political\nphilosophers. They were acquainted with the arguments of Montesquieu\nand others that a separation of the powers of government and the\nvesting of each, the executive, legislative, and judicial, in\ndifferent hands was essential to liberty. They did not merely\ntheorize, however. They had themselves lived and labored under\ngovernments not thus divided in functions or only partially so.\nColonial governors had assumed legislative functions in the\npromulgation of ordinances, and also judicial functions as judges of\nprobate and in other ways. The colonial legislatures did not hesitate\nto dictate to the courts in particular cases and often acted as a\ncourt of appeal. In Massachusetts Bay the legislature came to be known\nas the General Court and exercised judicial power freely, sometimes\ncalling in the judges to sit with them. The same individual could at\none and the same time fill an executive and a legislative or judicial\noffice. In colonial Massachusetts William Stoughton held the offices\nof military commander, lieutenant governor, and chief justice at the\nsame time. Because of the frequent and prolonged absences of the\ntitular governor he was often the acting governor. As an inevitable\nconsequence, when sitting as a judge he was more a zealous prosecutor\nthan an impartial judge. His conduct in the witchcraft trials was\ncomparable to that of Jeffreys in the infamous \"Bloody Assizes.\"\nHutchinson was also often acting governor while holding his commission\nas chief justice.\n\nIn view of their experience and deep study, the opinions formed by\nthe framers of the early constitutions of this country should be of\ngreat weight in forming our own. It is worth while to cite the\nopinions of some. Thomas Jefferson was not in his day, nor has he been\nsince, regarded as opposed to popular government. Virginia had as\nearly as 1776 declared in its first constitution that the three great\ndepartments should be kept separate. Jefferson, who besides his other\nopportunities of observing the operation of government was himself\nchief magistrate of the state, criticized that constitution as not\nmaking such separation effectual. In his \"Notes on Virginia\" he wrote\nof it: \"All the powers of government, legislative, executive and\njudiciary, result to the legislative body. The concentrating these in\nthe same hands is precisely the definition of despotic government. It\nwill be no alleviation that these powers will be exercised by a\nplurality of hands and not by a single one. One hundred and\nseventy-three despots would surely be as oppressive as one. Let those\nwho doubt it turn their eyes on the republic of Venice. As little\nwill it avail us that they are chosen by ourselves. An elective\ndespotism was not the government we fought for, but one which should\nnot only be founded on free principles, but in which the powers of\ngovernment should be so divided and balanced among several bodies of\nmagistracy as that no one could transcend their legal limits without\nbeing effectually checked and restrained by the others. For this\nreason the convention which passed the ordinance of government laid\nits foundation on this basis, that the legislative, executive and\njudiciary departments should be separate and distinct, so that no\nperson should exercise more than one of them at the same time. But no\nbarrier was provided between these several powers.\" It was this\ndefect, this lack of barriers, that Jefferson lamented.\n\nWhen the draft of the Federal Constitution of 1787 was submitted to\nthe states, one of the principal objections urged against it was that\nin its structure sufficient regard was not paid to keeping the three\ndepartments of government separate and distinct. In reference to this\nobjection Madison wrote in the \"Federalist\": \"No political truth is\ncertainly of greater intrinsic value or is stamped with the authority\nof more enlightened patrons of liberty than that on which this\nobjection is founded. The accumulation of all powers, legislative,\nexecutive, and judiciary, in the same hands, whether of one, few, or\nmany, and whether hereditary, self-appointed, or elective, may justly\nbe pronounced the very definition of tyranny. Were the Federal\nConstitution therefore really chargeable with this accumulation of\npowers, or with a mixture of powers having a dangerous tendency to\nsuch an accumulation, no further argument would be necessary to\ninspire a universal reprobation of the system.\" He elsewhere declared\nthe maxim to be a \"fundamental article of liberty.\"\n\nHamilton was apprehensive of danger to liberty from the legislative\ndepartment and favored a strong executive to guard against it. He\ndeclared in the \"Federalist\" that the legislative department was\n\"everywhere extending the sphere of its activity and drawing all power\ninto its impetuous vortex,\"--that the people \"never seem to have\nrecollected the danger from legislative usurpation which by assembling\nall power in the same hands must lead to the same tyranny as is\nthreatened by executive usurpation.\" Washington in his Farewell\nAddress, after much experience with, and observation of, legislative\naction, said: \"The necessity of reciprocal checks in the exercise of\npolitical power by dividing and distributing it in different\ndepositaries and constituting each the guardian of the public weal\nagainst invasions by the others has been evinced by experiments\nancient and modern, some of them in our own country and under our own\neyes. To preserve them must be as necessary as to institute them.\"\n\nAfter having lived for generations under governments in which there\nwas no effective division of powers, the people of the various\ncolonies in setting up their own governments at the time of the\nRevolution very generally declared for such division, in more or less\nexplicit terms. Even in the few cases where the division was not\nexpressly made, it was implied in the constitution. The provision in\nthe constitution of Massachusetts adopted in 1780 may be cited as an\nexample of the strength of the conviction. \"In the government of this\nCommonwealth the legislative department shall never exercise the\nexecutive and judicial powers or either of them; the executive shall\nnever exercise the legislative and judicial powers or either of them;\nthe judicial shall never exercise the legislative and executive powers\nor either of them.\" To this provision were appended, as the reason for\nit, the memorable words, \"To the end that it may be a government of\nlaws and not of men.\"\n\nFrom 1776 to the present century as new states were formed their\npeople in most instances have adopted similar provisions. Perhaps the\npeople of Maine when they separated from Massachusetts in 1820\nadopted the most stringent provision by prohibiting not only the\ndepartments but all the persons in either department from exercising\nany of the powers properly belonging to either of the other\ndepartments.\n\nOf course some exceptions to the rule are necessary and these are\nusually named in the constitution itself. Again the dividing line\nbetween the powers cannot always be precisely defined and, further,\neach department in the performance of its own proper functions may\nsometimes be obliged to exercise a power strictly pertaining to\nanother department. All that the maxim requires is that the three\npowers should be kept as distinct and separate as possible and have\nthe government still go on.\n\nIt is true we should not fear to question the wisdom of our fathers,\nbut conclusions they have arrived at in matters of government after\nlong study, observation, and actual experience should not be\ndisregarded unless their error can be clearly demonstrated.\n\n\n\n\nCHAPTER VI\n\nTHE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE POWERS OF THE\nGOVERNMENT. BILLS OF RIGHTS\n\n\nIt should be evident that the division and distribution of\ngovernmental powers among different depositaries will not alone\nprevent encroachments by the governing power upon the liberty of the\nsubject. The executive department in performing only executive\nfunctions can, in the absence of other checks, act oppressively. The\nlegislative department, especially, without exceeding the legislative\nfunction, can in many ways and in excessive degrees oppress the\nindividual by unnecessary restrictions of personal liberty, by\nunnecessary exactions, by arbitrary discriminations. The theory of\nrepresentative government is that the legislature will be a body of\nmen who will regard themselves as entrusted with important powers to\nbe exercised deliberately and wisely for the welfare of the whole\ncommonwealth and not for any one or more classes or interests,--who\nwill regard themselves not as mere delegates or proxies, but as\nrepresentatives, like the directors of a corporation, to form and act\nupon their own judgment after investigation and reflection. Experience\nhas shown, however, that members of the legislature do not always nor\ngenerally act upon that theory. They seem to be inoculated with the\nbacillus of irrepressible activity, the desire continually to be\nproposing new laws, new restrictions, new exactions. If the laws\nenacted prove difficult of enforcement by reason of their interference\nwith what individuals feel to be their rights, then new and oppressive\nmethods of enforcement are devised, still further restricting liberty\nand equality. I have seen it stated that in the first ten days of the\nsession of the Massachusetts legislature this present year over a\nthousand laws were proposed. Further, the members of the legislature\nare beset by constituents and others to favor legislative measures for\ntheir own special benefit, or that of their association, or of their\nlocality. One result is that during every legislative session the\nordinary citizen is dreading oppressive legislation and feels relieved\nwhen the session is over.\n\nWhen we consider the wide, almost unlimited range of the legislative\nfunction, and the power and tendency of legislatures to push that\nfunction to the extreme, it would seem that some check should be put\nupon the legislature to prevent its enacting discriminatory laws or\notherwise depriving the individual of some accustomed and cherished\nfreedom of action. If it be said that public opinion is sufficient\nrestraint, the answer is that in a democracy, or in a republic with\nuniversal suffrage, the efficient public opinion is practically that\nof the majority of the electorate, and it is an acknowledged truism\nthat the unrestrained majority is even more likely than the few to be\noppressive of the individual. The opinion of the many is more\nvariable than that of the few, more likely to be swayed by sympathy,\nprejudice, and other emotions. Indeed, public opinion sometimes\ninduces legislatures to enact laws which they themselves feel to be\nunwise and tyrannical.\n\nIf history and reason show that the happiness of the people as a whole\nrequires certain individual liberties and rights to be left\nundisturbed and that the safety of the people as a whole does not\nrequire the contrary, then in order to secure justice those possessing\nthe powers of government should be restrained from any acts infringing\nthose liberties and rights; for, as already stated, justice consists\nin the equilibrium between restrictions necessary for the welfare of\nthe whole people without discrimination, and the freedom of the\nindividual to serve his own welfare.\n\nI think there are such liberties and rights. The subjects of King John\nin the 13th century thought so and compelled the king to guarantee by\nthe Magna Charta that certain specified rights and liberties should\nnot be infringed. Again, the subjects of Charles I in the 17th century\nhad a similar conviction and expressed it in the Petition of Right,\nwhich named some liberties and rights not to be infringed. The king\nassented to that much limitation of the royal power. In the same\ncentury, upon the accession of William and Mary, a Bill of Rights was\nframed and enacted into law by King and Parliament, naming liberties\nand rights of the subject which ought not to be abridged. Succeeding\nKings and Parliaments seem to have respected the provisions of this\nBill of Rights in their legislation for British subjects. Had they\nconceded the claim of the people of the American Colonies that they\nalso were protected by its provisions, the course of our political\nhistory might have been different. As it was, however, the British\ngovernment practically held that neither Magna Charta, the Petition of\nRight, nor the Bill of Rights restrained it in its dealings with the\nColonies, and this in despite of the protests of some of its most\neminent statesmen. The resolutions of the various Colonial\nlegislatures and the formal Declaration of Independence recite many\ngrievous instances of arbitrary action by the government in disregard\nof the doctrines of those charters.\n\nSo bitter was their experience that, when the people of the various\nColonies came to frame constitutions for \"a government of the people,\nby the people, and for the people\" independent of the British crown\nand all other external authority, they very generally insisted that\neven such a government should have its powers defined and limited,\nthat some rights of the individual should be specified which the\ngovernment should not infringe nor have the lawful power to infringe.\nFrom their own experience the people were convinced that such\ndefinitions and limitations were necessary for the security of the\nindividual even under a popular government.\n\nThe first step of the representatives of the people of Virginia toward\na declaration of independence of the British crown, and the setting up\nan independent government, was the adoption of a declaration of rights\nin the individual which no government should infringe. This was\nadopted and promulgated sometime before the constitution proper was\nframed. The statement was declared to be necessary in order that the\ngovernment might be \"effectually secured against maladministration.\"\nSimilar limitations upon the powers of the government were imposed in\nthe early constitutions of Massachusetts, New Hampshire, New Jersey,\nDelaware, Pennsylvania, Maryland, North Carolina, and South Carolina;\nalso in the first constitution of Connecticut in 1818, and in the\nfirst constitution of Rhode Island in 1842. The people of New Jersey\nin 1844 made the limitations more definite, and the people of Maryland\nimposed additional limitations in 1864. The people of New York did not\nin their first constitution of 1777 expressly in terms guarantee\nindividual rights, but they impliedly did so by making the Declaration\nof Independence the preamble, and in their constitution of 1821 they\nincorporated an explicit statement of individual rights not to be\ninfringed. The example of the original states in this respect has been\nfollowed by most of the subsequent states of the Union.\n\nIn 1778 a convention chosen to draft a constitution for Massachusetts\nsubmitted a draft to the people, who rejected it by a large majority\nmainly because it did not contain a \"Bill of Rights.\" To quote from\nHarry A. Cushing, a writer on the History of Commonwealth Government\nin Massachusetts, \"No demand was more general than that for a Bill of\nRights which should embody the best results of experience.\" In 1780 a\nsecond convention submitted another draft of a constitution containing\nthe famous Massachusetts Declaration of Rights, and this the people\nadopted by a majority of more than two to one. The only objection\nurged against the Declaration of Rights was that it did not go far\nenough.\n\nIn the convention that drafted the Federal Constitution it was\nstrongly urged that a Bill of Rights should be incorporated in the\ndraft, but it was deemed, by the majority at least, unnecessary and\neven dangerous to make a specific declaration of individual rights,\ninasmuch as the federal government contemplated was in its very nature\nlimited to such powers as were expressly, or by necessary implication,\nconferred by the Constitution, and hence to specify certain things the\ngovernment should not do might be construed as permitting it to do\nanything not so specified. This argument prevailed and the draft\nsubmitted to the states contained no Bill of Rights. Immediately,\nhowever, a storm of objections was raised against it because of the\nomission. Despite the arguments of Hamilton and Madison that a Bill of\nRights was unnecessary, ratification was finally obtained only by a\ngeneral assurance and understanding that a sufficient Bill of Rights\nshould be added immediately upon the organization of the new\ngovernment. The necessary amendments, therefore, were submitted at the\nfirst session of the new Congress and were unanimously adopted by the\nstates. Other limitations have since been imposed, notably those in\nthe XIVth amendment, assuring to every citizen equal consideration in\nlegislation by the states.\n\nBy the Federal Constitution as it now stands the citizen, in time of\npeace at least, is guaranteed, among other matters, the protection of\nthe writ of habeas corpus; freedom from bills of attainder and ex post\nfacto legislation; freedom of religious belief and worship; freedom of\nthought and its expression; freedom peacefully to assemble with others\nand petition for redress of grievances; freedom from unreasonable\nsearches and seizure; the right not to be prosecuted for infamous\ncrimes except first accused by a grand jury; the right in all criminal\nprosecutions to a speedy and public trial by an impartial jury, to be\nconfronted with the witnesses against him and to have assistance of\ncounsel; that he shall not be deprived of life, liberty, or property\nwithout due process of law; that his private property shall not be\ntaken from him even for public use without just compensation; that the\nobligations accruing to him under lawful contracts shall not be\nimpaired; that he shall not be denied the equal protection of the\nlaws. The guarantees in the state constitutions are generally of the\nsame nature.\n\nIt is difficult to see how any of these guaranties, or such other\nguaranties as may be contained in the federal and state constitutions,\nprevent legislative or executive action necessary for the welfare of\nthe people generally. There is certainly an ample field for such\naction without overstepping these boundaries. Nevertheless, it is\ntoday urged by some impulsive persons, eager to impose their theories\non the people at once, that all or many of these limitations upon the\npowers of government should be removed or disregarded and the majority\nof the people allowed unrestricted sway in all matters of\ngovernmental action. Others who do not go so far, yet urge that the\nmajority should be free to suspend these guaranties temporarily or in\nsome particular classes of cases. Against this opinion I submit that\nafter so many centuries of experience of the tendency of all\ngovernments to enlarge their powers over the subject, and of struggles\nto limit the powers of government over private rights and to protect\nthe individual from governmental oppression, the burden of evidence\nand of argument is heavily on those who would now advocate unlimited\npowers even for the most democratic government. A government directly\nby the people is of course in practice a government by a shifting and\noften narrow majority of the people. It is not yet demonstrated by\nexperience or reason that such a government, unlimited, would be as\nregardful of individual rights or welfare as a republican form of\ngovernment with its checks and balances and constitutional\nrestrictions. The excesses of the unlimited democracies of ancient\nGreece and of the unrestrained democracy of France during and after\nthe revolution of 1789 and the lynchings in this country do not\ncontribute to such demonstration.\n\nIt is not those who defend our present form of government with its\nconstitutional guaranties, who resist political action tending to\nweaken them, that should be called unprogressive, undemocratic, or\nwanting in love of country. Those of our ancestors, English and\nAmerican, who fought for these guaranties, who obtained them only\nafter years of strife, who incorporated them in our federal and state\nconstitutions and safeguarded them against the varying impulses of the\npopulace, were not unpatriotic nor unmindful of the welfare of the\npeople,--were not indifferent to human liberties or human rights.\nNeither are they such who today strive to preserve those guaranties\nwon at such expense of blood and treasure. On the contrary, it is\nthose who would override these guaranties and revert to the old days\nof unlimited governmental power, that are the reactionaries.\n\nIt may be admitted that some of these limitations if enforced do now\nand then impede and even prevent some governmental action desired by\nsome group or section of the people, but while action in violation of\nthese limitations might benefit its sponsors it would necessarily be\nat the expense of others. Those who seek such legislation against\nothers would quickly appeal to these limitations if legislation were\ndirected against themselves. The noisiest declaimers against these\nguaranties fall back for protection upon the constitutional guaranty\nof freedom of speech. So long as these barriers are maintained every\nindividual, no matter how poor and feeble, will be, theoretically at\nleast, secure in some rights against the attacks of the many. Without\nsuch barriers every individual is at the mercy of an inconstant\nmajority. Without such barriers justice cannot be said to be secured.\nLord Treasurer Burleigh of Queen Elizabeth's time declared that\nEngland could never be ruined by its kings, but only by its\nParliament. If the safeguards of the federal and state constitutions\nare maintained, neither Congress nor the state legislatures can ruin\nAmerica. If the American people should ever consent to the removal of\nthese safeguards they would give evidence of their want of\nself-restraint, of their unwillingness and even incapacity to govern\nthemselves, and would pave the way for the man on horseback as the\nFrench Revolution paved the way for Napoleon. To deprive a single one\nof his rightful liberty is to endanger the liberties of all.\n\n\n\n\nCHAPTER VII\n\nTHE INTERPRETATION AND ENFORCEMENT OF CONSTITUTIONAL LIMITATIONS\nNECESSARILY A FUNCTION OF THE JUDICIARY\n\n\nUnder our federal and state form of government the question naturally\narises where should be lodged the power to determine whether in a\ngiven instance either department has encroached on the proper field of\nany other department, and whether either department has encroached on\nthe constitutional rights of the individual citizen. It should be\nevident that neither the executive nor the legislative department is a\nfit depositary of such power. Both these, from the nature of their\npowers, are aggressive. They act of their own volition. They initiate\nproceedings and measures to carry out policies. In their activities\nthey are apt, consciously or unconsciously, to overstep the boundary\nlines between the departments and also the limits set for the\nprotection of the citizen against such activities. Again, questions\nmay and often do arise between the government and the individual\ncitizen that are not political questions, but are questions of private\nright, the right of the individual against the government. The\ndisputants are the individual citizen or group of citizens on the one\nhand, and the government on the other whether that government be a\nmonarchy, a republican or representative government, or a pure\ndemocracy. In such case it would seem clear that one party should not\nhave the power to decide the question. It is an axiom that neither\nparty to a controversy should be the judge in the matter. The\nlegislature that enacts a statute claimed by a citizen to be beyond\nits powers and to deprive him of some right guaranteed to him by the\nconstitution, should not be the judge of the question any more than\nshould the complaining citizen. So the executive should not be the\njudge where a citizen claims it has exceeded its powers to the\ndetriment of his constitutional or statutory rights. Even if a statute\nbe enacted or ratified by the people directly, under the modern\ninitiative and referendum, and a citizen claims that the statute\ndeprives him of some right guaranteed by the constitution, the people\nshould not be the judge; much less should a majority. If the\nindividual is left to be the judge of his constitutional or legal\nright as against the government, the result would be anarchy. If the\ngovernment, even the most popular government, is to be the judge, the\nresult would often be tyranny. There would be occasions, as there have\nbeen, when an excited people or majority would tyrannize over the\nindividual, indeed over the minority. To secure alike the people\nagainst anarchy and the individual against tyranny, power must\nbe vested in some impartial, independent arbiter to determine\nauthoritatively and finally the relative rights and duties of each\nunder the constitution.\n\nThe proper department to be made the depositary of this important\npower would seem to be the judicial. That department does not\ninitiate, has no policies, does not act of its own volition, but acts\nonly when its action is regularly invoked in some controversy and then\nonly to end that controversy. It may seem unnecessary even to state,\nmuch less defend, the proposition, but as its logical result is that\nthe judiciary when invoked by the individual must refuse effect, so\nfar as he is concerned, to a legislative act which deprives him of\nsome right guaranteed by the constitution, and must thus disappoint\nthose who procured the passage of the act, the proposition has been,\nis still being, denied. The action of the courts in exercising that\npower has been and is even now denounced as usurpation. Though the\nproposition is now long established, these attacks justify some\nrepetition of the argument in its support. The logic of Chief Justice\nMarshall in _Marbury_ v. _Madison_, 1 _Cranch_ 137 _at p. 176_, seems\nto me irresistible and worthy of frequent quotation despite the\nattacks upon it. The Chief Justice said: \"This original and supreme\nwill (of a people) organizes the government and assigns to different\ndepartments their respective powers. It may either stop here,\nor establish certain limits not to be transcended by those\ndepartments.... The government of the United States is of the latter\ndescription. The powers of the legislature are defined and limited;\nand that those limits may not be mistaken or forgotten, the\nConstitution is written. To what purpose are powers limited and to\nwhat purpose is that limitation committed to writing if these limits\nmay at any time be passed by those intended to be restrained? The\ndistinction between a government with limited and unlimited powers is\nabolished if those limits do not confine the persons on whom they are\nimposed, and if acts prohibited and acts allowed are of equal\nobligation. It is a proposition too plain to be contested, either that\nthe Constitution controls any legislative act repugnant to it, or that\nthe legislature may alter the Constitution by an ordinary act.\nBetween these alternatives there is no middle ground. The Constitution\nis either a superior, paramount law unchangeable by ordinary means, or\nit is on a level with ordinary legislative acts, and, like other acts,\nis alterable when the legislature shall please to alter it....\nCertainly all those who have framed written constitutions contemplate\nthem as forming the fundamental and paramount law of the nation, and\nconsequently the theory of every such government must be that an act\nof the legislature repugnant to the Constitution is void.\"\n\nIn 1825 that eminent jurist, Chief Justice Gibson of Pennsylvania, in\na dissenting opinion in _Eakin_ v. _Raub_, 12 _S. & R._ 330, insisted\nin an able, elaborate, and exhaustive argument that while the\njudiciary was bound to refuse effect to a state statute in conflict\nwith the Federal Constitution, it was bound to give it effect if\nrepugnant only to the state constitution. He frankly admitted the\nlogical conclusion that in such case the only remedy the citizen had\nto enforce his constitutional rights was that of revolution. When,\nhowever, his opinion in _Eakin_ v. _Raub_ was cited in 1845 in\nargument in _Norris_ v. _Clymer_, 2 _Pa. St._ 277, he said he had\nchanged his opinion on that question, partly \"from experience of\nthe necessity of the case.\" In the later case, _De Chastellux_ v.\n_Fairchild_, 15 _Pa. St._ 18, he was emphatic in his declaration of\nthe power and duty of the court to refuse effect to a state statute in\nconflict with the state constitution. In delivering the opinion of the\ncourt he used this vigorous language: \"It is idle to say the authority\nof each branch (of the government) is defined and limited in the\nconstitution, if there be not an independent power able and willing to\nenforce the limitations.... From its very position it is apparent that\nthe conservative power is lodged with the judiciary, which in the\nexercise of its undoubted right is bound to meet every emergency.\"\n\nThe results of the contrary doctrine are well stated by the same court\nin _Perkins_ v. _Philadelphia_, 156 _Pa. St._ 554. \"If laws in\nconflict with the constitution be passed by the legislature, approved\nby the governor and sustained by the court, that is revolution. It is\nno less revolution because accomplished without great violence. It\nmatters little to the house owner whether the structure built to\nshelter him be blown up by dynamite, or the foundation be pried out\nstone by stone with a crowbar. In either case he is houseless.\"\n\nOne desirable result of this doctrine that the courts when regularly\ninvoked can and should refuse effect to an unconstitutional statute is\nthat it ensures to every person, not in the military or naval service,\nthe right to test in the judicial courts the authority of any official\nto interfere with his person, liberty, or property, whatever\nauthority, executive or legislative, the official may plead. In France\nand other countries of continental Europe questions of the existence\nand extent of the authority of an official in his action against\nindividuals are triable, at least at the pleasure of the executive,\nonly in administrative tribunals, that is, courts pertaining to the\nexecutive department and instituted to assist that department in the\nperformance of its functions. The aggrieved individual can only apply\nto the superiors of the official complained of. Such tribunals\nnaturally incline to uphold the authority claimed, and indeed can\nlawfully allow the plea that the act complained of was ordered in\npursuance of some executive policy. A recent instance is that unhappy\naffair at Zabern in Alsace where an army officer in time of peace\nwantonly struck and wounded a peaceful crippled citizen with his\nsabre. The victim could only appeal to the officer's military\nsuperiors, who acquitted the offender on the ground that the dignity\nof the military must be protected. In the United Kingdom, while at\npresent, as for centuries, the individual can appeal to the judicial\ncourts against officials acting under any executive or legislative\norders, Parliament, and even a majority of the House of Commons, can\nat any time deprive him of that right. In this country the executive\nand legislative departments combined have no such power. So long as\nour present system is maintained, questions between government\nofficials and individuals must remain cognizable by the judicial\ncourts where the private citizen is on a par with the highest\nofficial, and the single individual is on a par with the government\nitself. In contrast to the Zabern affair we may note that the striking\ncopper miners of Michigan were not obliged to apply to higher military\nofficials for redress of wrongs claimed to have been inflicted upon\nthem by the military. They were free to apply, and did apply, to\ntribunals outside of and independent of the executive. They and such\nas they should be the most unwilling to degrade the courts or lessen\ntheir power. A similar instance is that of the striking miners in\nColorado who so loudly complained of the acts of the militia. They\nwere not obliged to appeal to military or executive officers for\nredress. The Judicial Courts were as open to them as to any others and\nthere they would be upon an equality with the officials.\n\n\n\n\nCHAPTER VIII\n\nAN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR JUSTICE\n\n\nFor the judiciary to be in fact, as well as in theory, the protector\nof the constitutional rights of the individual against the government,\nand of the legal rights of the individual against the aggressions of\nothers, it should be made so far as possible free, impartial and\nindependent. The judges should have such security of tenure, and such\nsecurity and liberality of maintenance, that they will have no\noccasion nor disposition to court the favor, or fear the disfavor, of\nany individual or class however powerful or numerous, not even the\ngovernment itself. They should be made free to consider only what is\nthe truth as to the existing law or fact in question, uninfluenced by\nany suggestions of what is demanded by prince, people, or individual,\nor by any suggestion of consequent good or evil to themselves. This\nproposition to my mind is so self-evident that quotations from eminent\nphilosophers cannot strengthen it.\n\nThe necessity of some independent tribunal between the governors and\nthe governed was recognized in republican Rome, where it was provided\nthat the persons of the tribunes should be inviolate, an immunity not\ngranted to any other officials. The medieval cities of Italy\nfrequently selected their judges from some other city that they might\nbe free from any connection with different local factions or\ninterests. When, however, the empire supplanted the republic in Rome,\nand the free cities of Italy were made subject to despotic domination,\nthe independence of these tribunals was lost. History shows that those\npossessing the governmental power have always been unwilling to\nmaintain an independent judiciary. The only countries today possessing\na judiciary with any considerable degree of independence are the\nUnited Kingdom and some of its \"Dominions beyond the seas\" and our\nown country. The need of it was seen in the experience of the people\nof England and of the English Colonies in America under a judiciary\nliable to be deprived of office or salary if its opinions were\ndispleasing to the crown.\n\nCharles I assented to the Petition of Right and promised to observe\nit, but no provision was made for any tribunal independent of the king\nto determine whether his acts were in violation of any article of the\nPetition. Consequently, when afterward in the matter of the tonnage\nand poundage tax Parliament remonstrated against the imposition of the\ntax as a violation of the royal promise in assenting to the Petition\nof Right, the king abruptly ended the session and in his speech of\nprorogation denied the right of Parliament to interpret the Petition\nand asserted that it was for him alone to determine \"the true intent\nthereof.\" Again, the legality of the imposition by the king of the\n\"ship money\" tax without the consent of Parliament was hopelessly\nquestioned. The king procured from the judges an opinion that he could\nlawfully impose such a tax without awaiting the assent of Parliament,\nwhen necessary for the defense of the kingdom, and that he was the\njudge of the necessity and proper amount of the tax. But this was not\nthe opinion of an independent judiciary. The judges at that time could\nbe promoted, removed, or \"recalled\" at any time at the king's sole\npleasure, and they well knew the king's obstinate insistence in the\nmatter. Their opinion simply gave expression to the king's will, and\nhence inspired no respect.\n\nFinally, for want of an independent tribunal empowered to determine\nauthoritatively between king and subject \"the true intent\" of the\nPetition of Right, the legal extent and limitation of the royal power,\nthe lawfulness of its exercise upon the subject in a given case, the\nissues between them had to be submitted to the arbitrament of civil\nwar, with the result that the monarchical system of government was\noverthrown. Its successor, an unchecked parliament, was no less\narbitrary in many of its acts, and was in turn overthrown and the\nmonarchy restored. The restored dynasty, however, obeying the impulse\nof all possessors of governmental powers, soon began again to claim\nand exercise autocratic power, to encroach upon the rights and\nliberties thought to have been secured to the subject by the royal\nassent to the Petition of Right and vindicated by successful\nresistance, and also to suspend the operation of the laws at his\npleasure. Unfortunately again there was as yet no impartial,\nindependent tribunal in England to determine authoritatively the line\nbetween the royal power and the specified rights of the subject. The\njudges were still removable at the king's sole pleasure. James II did\nnot hesitate to use this power to obtain such opinions and decisions\nas he desired. Preparatory to the trial of the Quo Warranto case\nagainst the City of London to procure the forfeiture of its charter,\nthe king removed Chief Justice Pemberton and appointed in his place\nthe servile Saunders who had drawn the writ in the case and had\nconducted all the proceedings in behalf of the crown as its counsel to\nthe stage where the case was ready for argument in the Court of King's\nBench. The case of the city was thereby made hopeless and the city\nitself helpless. In the case of the \"Seven Bishops,\" prosecuted for\nlibel in presenting to the king a petition for him to recall his order\nfor the reading in the churches his Declaration of Indulgence, he\nseems to have felt tolerably sure of the court as it was already\nconstituted. Two able and learned justices, however, Holloway and\nPowell, ventured the opinion that the petition was not libelous. They\nwere both promptly \"recalled.\"\n\nAgain force had to be used to free the subject and maintain his\n\"rights and liberties\" against the sovereign. James II was driven from\nthe country and William of Orange called to the throne. This time the\npeople in settling the new government through parliamentary action\nwent farther than before in the way of restraint upon the government\nand took the necessary step to secure their rights and liberties. In a\nnew instrument, this time called a Declaration instead of a Petition,\nthey reiterated the rights of the subject as twice before they had\nbeen formally asserted in the Magna Charta and the Petition of Right.\nThis instrument, known as the Declaration of Rights of 1688, was\npresented to William and Mary, who solemnly engaged to observe and\nmaintain its provisions. Further still (and this was the new and\neffective guaranty of the subject's rights), in the Act for the\nsettlement of the crown it was enacted by king, lords, and commons\nthat thereafter the judicial tenure of the judges of the courts should\nbe during good behavior. Since that time for more than two centuries\n\"the true intent\" of the laws has been determined, not by king or\nparliament or people, but by a judiciary made strong and independent.\nThere has been no need to resort to force to defend the legal rights\nof the subject.\n\nBut this security for individual rights and liberties was not extended\nto British subjects in America. After the Colonies had so increased in\npopulation and wealth that they were deemed worth exploitation, the\ngovernment, among other means of controlling them, took over the\nappointment of their judges, in many instances with a tenure during\nthe government's pleasure only. In the circular letter of\nMassachusetts Bay Colony to the other Colonies in 1768 they are asked\nto consider whether for the judges of the land not to hold their\ncommissions during good behavior and to have their salaries appointed\nfor them by the crown did not have a tendency to \"endanger the\nhappiness and security of the subjects.\" One of the counts in the\nindictment of July 4, 1776, against the king's government was that it\nhad made the colonial judges dependent on the king's will alone for\nthe tenure of their offices and the amount and payment of their\nsalaries.\n\nAs a consequence of this experience with a judiciary dependent on the\ngoverning power for the tenure and maintenance of its judges, the\nColonies when they set up independent governments of their own\nprovided a fixed tenure for their judges in every instance but one.\nConnecticut in its first constitution made the tenure during good\nbehavior, as did Delaware, Maryland, Massachusetts, New Hampshire,\nNorth Carolina, South Carolina, and Virginia. Pennsylvania at first\nfixed the tenure at seven years, but in 1790 changed it to good\nbehavior. The same tenure was fixed for the federal judges in the\nFederal Constitution. In some instances also, further provision was\nmade for the independence of the judges by forbidding the diminishing\nof their salaries during their term of office.\n\nThe people of Massachusetts, which had been the most harried of the\nColonies, declared emphatically the necessity for an independent\njudiciary. Article XXIX of the Massachusetts Declaration of Rights\nadopted in 1780 is as follows: \"It is essential to the preservation\nof every individual, his life, liberty and property and character\nthat there be an impartial interpretation of the laws, and\nadministration of justice. It is the right of every citizen to be\ntried by judges as free, impartial and independent as the lot of\nhumanity will admit. It is, therefore, not only the best policy but\nfor the security of the rights of the people and of every citizen that\nthe judges of the supreme judicial court should hold their offices so\nlong as they behave themselves well; and that they should have\nhonorable salaries ascertained and established by standing laws.\" New\nHampshire, with a similar experience, adopted the same language in\nArt. XXXV of her Bill of Rights. The Maryland Declaration of Rights\nof 1776 contains this article: \"Art. XXX. That the independency\nand uprightness of the judges are essential to the impartial\nadministration of justice and a great security to the rights and\nliberties of the people; wherefore the chancellor and judges ought\nto hold commissions during good behavior.\"\n\nIt is true that in most of the states the official tenure of the\njudges has since been reduced to a more or less brief term of years.\nThis fact is only another instance of the tendency of the governing\npower to lower if not remove all barriers set up against it for the\nprotection of the individual. Majorities as well as absolute kings\nlike their own way. The change where made may have given majorities\ngreater freedom to enforce their will upon individuals, but it has not\nincreased confidence in the integrity of the judges nor made them more\nfirm to ascertain and declare only the truth.\n\nIt is true also that in most states now the people have taken to\nthemselves directly the task of selecting men suitable for judges\ninstead of entrusting that important duty to the governor or\nlegislature, as was the practice in the early days of the republic.\nI cannot think this has tended to secure better judges, though it may\nhave secured judges more subservient to majorities. Effectually to\nguard the constitutional and legal rights of all alike, the judges\nshould possess what is called the legal mind and the judicial\ntemperament. They should be able and learned that they may appreciate\nthe real meaning, purpose, and scope of the constitution and statutes;\ncalm and equable in temperament that they may not be influenced by\nsympathy, prejudice, or other emotions; strong and courageous in\ncharacter that they may resist all pressure other than fair argument.\nTo find the men possessing these qualities requires extensive and\nprotracted inquiry and patient consideration, such as are not and\ncannot be exercised by the people directly. The task should be deputed\nin the first instance to the head of the state, the chief executive.\nHe has the best means of ascertaining who possesses the requisite\nqualifications in the greatest degree. He would feel that he alone was\nresponsible for a proper selection, and that feeling of responsibility\nwould tend to make him deliberate and painstaking in his choice. On\nthe other hand, if the original selection be entrusted to the\nlegislature or left with the people acting directly, individual\nmembers would have a much lower sense of personal responsibility and\nthe individual members of the electorate scarcely any at all. True, in\nthose states where the judges are elected by the people directly,\nexcellent judges are often and perhaps ordinarily chosen, but I think\nI state a truth in stating that upon the whole those courts composed\nof judges with a long tenure and appointed by the executive stand\nhigher in public estimation and their opinions have greater weight.\nSuch courts are certainly a greater protection to those guilty of no\nwrong, but who have been so unfortunate as to incur the displeasure of\nan excited community.\n\nNevertheless, despite the lessons of history and the reasons contra,\nit is proposed in this twentieth century that the tenure of the judges\nshall again be during pleasure only,--this time during the pleasure of\nthe majority of the electorate. The proposition is not stated so\nbaldly by its proposers. They phrase it as the right of the people to\nremove or recall unsatisfactory public servants, whether judges, or\ngovernors, or other officials. They propose that at the request of a\ncertain small percentage of the electorate, setting forth their\ndissatisfaction with a judge, he may be removed by a majority of the\nvoters. As precedents for their proposal they point triumphantly to\nthe provision of the British Act of Settlement that judges should be\nremovable by the crown upon the request of both Houses of Parliament,\nand to similar provisions in many of our state constitutions.\n\nOf course, there should be lodged somewhere the power to remove judges\nproven to be unworthy of their high office, or incapable of performing\nits high duties, but it should be lodged in a body of men before whom\nthe accused judge can appear in person or by counsel, hear the\ncomplaints and face the witnesses against him, and adduce evidence and\nargument in reply,--and who can on their part see the witnesses and\nhear the arguments before deciding. That was the opinion of the\nBritish Parliament in the few cases presented to them, and the state\nlegislatures in this country have generally entertained the same\nopinion. It was also held by Parliament that the address for removal\nshould state the reasons therefor. In 1855 Governor Gardner of\nMassachusetts declined to remove a judge of probate on address by the\nlegislature because no sufficient grounds were stated in the address.\nHe said that in every instance then on record full reasons for removal\nhad accompanied the address.\n\nThe constitutional provision for removal by address evidently was not\ndesigned to lessen the impartiality and independence of the judge by\nsubjecting him to removal at the mere will of the executive and\nlegislature, but that he might be removed for corruption, neglect of\nduty, incapacity, immorality, or other disgraceful conduct, after\nnotice, hearing, and deliberation. For the executive and legislature,\nor even the majority of the people, to remove a judge because they do\nnot like his opinions as to what the constitution requires or forbids\nthem to do, would destroy the independence of the judges and thus\ndeprive the citizen of all security for his rights and liberties under\nthe constitution,--would be despotism.\n\nThe principal argument for lessening the independence of the judges\nand making them more subservient to the inconstant majority seems to\nbe that otherwise the judges will misuse their power and impede the\noperation of statutes they do not themselves approve of. The argument\nhas little or no foundation in fact. Perhaps among the hundreds, if\nnot thousands, of cases of holding a statute unconstitutional a few\nmay seem to have been so decided because the judges thought them\nunwise and oppressive. Some expressions in judicial opinions have been\nunfortunate in that respect, but the courts everywhere in this\ncountry, now if not at first, disclaim any such power. The same Chief\nJustice Marshall, who had so convincingly stated the duty of the\njudiciary to refuse effect to unconstitutional statutes, later in\n_McCulloch_ v. _Maryland_, 4 _Wheat._ 316, disclaimed for the courts\nall pretensions to any power to inquire into the necessity of any\nstatute, or in any way to interfere with the discretion of the\nlegislature. In strong and explicit language other courts have\ndisclaimed such pretensions. The Minnesota court in _State_ v.\n_Corbett_, 57 _Minn._ 345, held that courts were not at liberty to\ndeclare a statute unconstitutional because it is thought by them to be\nunjust or oppressive, or to violate some natural, social, or political\nright of the citizen, unless it can be shown that such injustice is\nprohibited, or such rights protected, by the constitution. The\nPennsylvania court in _Com._ v. _Moir_, 199 _Pa. St._ 534, used this\nlanguage: \"Much of the argument and nearly all the specific objections\nadvanced are to the wisdom and propriety and to the justice of the\nstatute and the motives supposed to have inspired its passage. With\nthese we have nothing to do. They are beyond our province and are\nconsiderations to be adduced solely to the legislature.\" The court of\nWest Virginia in _Slack_ v. _Jacob_, 8 _W. Va._ 612, said: \"That the\njudges are convinced that a statute is contrary to natural right,\nabsolute justice, or sound morality does not authorize them to refuse\nit effect.\" The court of Washington in _Fishing Co._ v. _George_, 28\n_Wash._ 200, held that \"a statute cannot be ignored by the courts\nbecause leading in its application to absurd, incongruous, or\nmischievous results.\" A few cases may also be cited showing how\nrelentlessly this disclaimer is applied. The court of New York in\n_Kittinger_ v. _Buffalo Traction Co._, 160 _N. Y._ 377, held that the\ncourts had no power to inquire into the motives inducing legislation\nand could not impute to the legislature any other than public motives.\nThe Pennsylvania court in _Sunbury R.R. Co._ v. _People_, 33 _Pa. St._\n278, had urged upon it the argument that the statute in question had\nbeen \"passed in fraud of the rights of the people.\" The court held\nthat, if true, that fact would not authorize it to refuse it effect.\nThe Tennessee court in _Lynn_ v. _Polk_, 76 _Tenn. St._ 121, was asked\nto declare a statute ineffective because its enactment was procured by\nbribing members of the legislature. The court held it could not do so.\nThe Missouri court in _Slate_ v. _Clarke_, 54 _Mo._ 17, had before it\na statute authorizing the licensing of bawdy houses and was urged to\ndeclare it unconstitutional because against public policy and\ndestructive of good morals. The court held it had no such power. The\nJustices of the Maine Supreme Court in an opinion reported in 103\n_Maine_ 508 stated the principle as follows: \"It is for the\nlegislature to determine from time to time the occasion and what laws\nare necessary or expedient for the defense and benefit of the people;\nand however inconvenienced, restricted, or even damaged particular\npersons and corporations may be, such general laws are to be held\nvalid unless there can be pointed out some provision in the State or\nUnited States Constitution which clearly prohibits them.\"\n\nFurther, it is a maxim of the judiciary, from the beginning and now,\nthat no statute should be refused effect unless clearly contrary to\nsome provision of the constitution,--unless the conflict is evident\nbeyond a reasonable doubt. This is a maxim, a canon of interpretation,\nthat courts always have in mind and apply in considering the question\nof the constitutionality of a statute.\n\nThus scrupulous are the courts to keep within their proper sphere, to\nrespect the limits of their powers. If the legislatures would be\nequally scrupulous, would themselves refrain from infringing on those\nrights and liberties of the citizen guaranteed by the constitution,\nthere would be less restriction, less friction, less turmoil, less\nneed of the judicial check, less injustice.\n\nBut the complaints against the courts are not all because of their\nholding statutes unconstitutional. Many have felt that courts\nsometimes erred in having too much respect for the legislative power\nand because of that respect have allowed constitutional rights and\nliberties to be sacrificed at the behest of majorities and often at\nthe behest of active, interested minorities more insistent than the\ninert majority. The decision of the United States Supreme Court in the\n_Charles River Bridge_ case, 11 _Peters_ 420, was mourned by such men\nas Webster, Kent, Story, and others as breaking down the safeguards of\nthe constitution. The decision in the _Slaughter House_ cases was\nregarded by many able jurists as ignoring that provision of the XIVth\namendment to the Federal Constitution forbidding any denial to any one\nof the equal protection of the laws. The _Elevator_ cases, holding\nthat elevators were public utilities and therefore subject to public\ncontrol as to charges for service, though the owners had no special\nfranchise, no part of public power, are even now thought to have made\na wide breach in the constitutional barriers against the invasion of\nprivate rights. The decision in the _Chinese Deportation_ cases, 149\nU. S. 698, shocked the sense of justice of many. It was to the effect\nthat Congress could empower the executive to arrest upon its own\nwarrant any person it claimed to be an alien unlawfully residing in\nthe United States and to deport him without trial, unless he could\naffirmatively prove to the satisfaction of a single judge (to be\nselected by the executive), and by a specified kind of evidence only,\nthat he was not guilty, however ample and probative other evidence\nmight be adduced and however impossible to produce the specified\nevidence. Justices Fuller, Field, and Brewer vigorously dissented on\nthe ground that such action by the executive, though under the\nauthority of Congress, was in violation of the constitutional\nguaranties against arrest without judicial warrant, against\ndeprivation of liberty without trial by jury and due process of law.\n\nJustice Brewer after quoting Madison, that banishment is among the\nseverest of punishments, went on to say: \"But punishment implies a\ntrial. 'No person shall be deprived of life, liberty or property\nwithout due process of law.' Due process of law requires that a man\nbe heard before he is condemned, and both heard and condemned in the\ndue and orderly procedure as recognized by the common law from time\nimmemorial.\"\n\nIn my research I have found more cases where it has seemed to me the\ncourts have construed constitutional guaranties too strictly, than\nwhere they have construed them too liberally. The tendency has been\nrather away from the enforcement of constitutional guaranties and to\nallow legislative encroachments upon them. I regard this as a very\ndangerous tendency. Perhaps the encroachments have not been at first\nperceived, but I think courts should be vigilantly on the watch for\nthem, otherwise individual rights guaranteed to the people by the\nconstitution may be gradually weakened and finally destroyed. This\nduty of the courts was declared in the case of _Boyd_ v. _United\nStates_, 116 _U. S._ 616 at page 641--where in refusing effect to a\nstatute requiring the production of his books and papers by a\ndefendant in proceedings for forfeiture, the court said: \"Though the\nproceeding in question is devested of the aggravating effects of\nactual search and seizure, yet it contains their substance and\nessence, and effects their substantial purpose. It may be that it is\nthe obnoxious thing in its mildest and least repulsive form; but\nillegitimate and unconstitutional practices get their first footing in\nthat way, namely, by silent approaches and slight deviations from\nlegal modes of procedure. This can only be obviated by adhering to the\nrule that constitutional provisions for the security of person and\nproperty should be liberally construed. A close and literal\nconstruction deprives them of half their efficacy and leads to gradual\ndepreciation of the right as if it consisted more in sound than in\nsubstance. It is the duty of courts to be watchful for the\nconstitutional rights of the citizen and against any stealthy\nencroachments thereon. Their motto should be _obsta principiis_.\"\n\nA review of the cases in which the courts have been called upon to\ndecide whether a statute breaks over the constitutional limitation\nwill demonstrate to any dispassionate person that upon questions of\nexpediency, of the general welfare, or even of justice, the judges\nrarely if ever oppose their opinion to that of the legislators. The\ncourts do not obstruct the current of progress; they only keep it from\noverflowing its banks to the devastation of the constitutional rights\nof the people.\n\n\n\n\nCHAPTER IX\n\nTHE NECESSITY OF MAINTAINING UNDIMINISHED THE CONSTITUTIONAL\nLIMITATIONS AND THE POWER OF THE COURTS TO ENFORCE THEM.--CONCLUSION\n\n\nDespite the lessons of history showing the need of specified\nlimitations upon the legislative power to ensure personal liberty and\njustice, it is still urged by the impatient that this check upon\nlegislative action should be removed, or at least that the legislature\nshould itself be the judge of the constitutionality of its acts, and\nthat the legislatures as the representatives of the people may be\ntrusted to observe constitutional requirements and limitations. From\nthe beginning, however, the people of this country have not fully\ntrusted their legislatures. They have not only set bounds to\nlegislative power, but within those bounds they have imposed in most\ninstances the check of an executive veto. They have also complained of\ntheir legislatures far more loudly than they have of their courts, and\nlatterly have subjected them to the initiative and referendum and in\nsome instances to the recall.\n\nPerhaps the judgment of those urging that the legislature should be\ntrusted not to trespass on the constitutional rights of the people may\nbe enlightened by recalling some instances of legislative action upon\nconstitutional questions left to its decision by the constitution\nitself. It is hardly necessary to cite instances of the abuse of this\npower in the matter of determining who are entitled to seats in the\nlegislature. It is common knowledge that, in the past at least, both\nlaw and fact have often been over-ridden for partisan advantage. As an\nillustration of how far a legislature will sometimes go in this\ndirection I may cite a recent instance in Maine. The constitution of\nthat state provides (Art. IV, Pt. 3, Sec. 11) that \"no person holding\nany office under the United States (post officers excepted) shall\nhave a seat in either house of the legislature during his continuing\nin such office.\" This provision was in the original constitution of\n1821, and until the legislative session of 1913 the exception of \"post\nofficers\" was understood to refer to officers in the postal service\nand such officers often held seats in the legislature without\nquestion. In 1913, however, the House of Representatives held for\nawhile that the exception referred only to military officers of the\nUnited States stationed at military posts within the state, though no\nsuch officer had ever held a seat in the legislature.\n\nThat legislatures are prone to disregard constitutional provisions is\nalso manifest in the vast amount of special legislation enacted\ndespite constitutional prohibitions of such legislation. There are\nalso numerous instances where legislatures while perfunctorily heeding\nthe letter of the constitution consciously violate its spirit and\nevade its requirements. In many states there is a constitutional\nprovision that no legislative act shall become effective until after\na specified time has elapsed from its enactment \"except in cases of\nemergency,\" which emergency, however, is to be declared in the act\nitself. This provision, of course, is to give the people time to\nunderstand the statute and prepare to obey it. The word \"emergency\" in\nthe exception implies a sudden, unexpected happening. It is defined in\nWebster as a \"pressing necessity; an unforeseen occurrence or\ncombination of circumstances which calls for immediate action or\nremedy.\" In Indiana in one legislative session, out of 200 acts, 155\nwere made to take effect at once by a recital that an emergency\nexisted therefor. In Illinois a two-thirds vote of all the members\nelected to each house is required for the adoption of the emergency\nclause. Among the acts of the last session containing the emergency\nclause was one appropriating $600 for printing the report of a\nmonument association. In Tennessee the exception was of cases where\n\"the public welfare\" required an earlier date. Out of 265 laws passed\nat one session 230 contained the declaration that the public welfare\nrequired their going into effect immediately. In Texas the\nconstitution provides that no bill shall be passed until it has been\nread on three several days in each house and free discussion allowed\nthereon, but that \"in cases of imperative public necessity four-fifths\nof the house may suspend the rule.\" Out of 118 laws passed at one\nsession all but five contained the statement that \"imperative public\nnecessity\" required suspension of the rule.\n\nLegislatures also seem prone to disregard the constitutional provision\nfor the referendum despite the strong, explicit language of that\nprovision. In California the constitutional provision is as follows:\n\"No act shall go into effect until ninety days after the adjournment\nof the legislature which passed such act ... except urgency measures\nnecessary for the immediate preservation of the public peace, health\nor safety, passed by a two-thirds vote of all the members elected to\neach house.\" Surely the language of the exception is strong and\nforceful. Two-thirds of all the members elected to each house must\nhold that the measure is urgent, not admitting of delay, that the\npublic peace, health or safety, not the mere interests or convenience\nof individuals or localities, is threatened and that the danger is\nimminent, requiring immediate action. Among other instances, the\nlegislature of California at its special session of 1911 adjudged an\nact to validate certain defective registrations of voters in some\nmunicipalities to be an urgency measure within the language of the\nexception; also an act to change the boundaries in a Reclamation\nDistrict. Oregon has a similar constitutional requirement and\nexception which its legislature does not always observe. At the\nsession of 1911, among other cases the legislature adjudged an act\nauthorizing a county to levy a tax for advertising the county's\nresources to be within the exception; also an act dividing a road\ndistrict; but an act appropriating money to guard against the bubonic\nplague was not declared to be within the exception. In Oklahoma with a\nsimilar constitutional provision and exception, the legislature seems\nto have run riot. At the session of 1910 a very large proportion, if\nnot a majority, of the statutes were adjudged to be within the\nexception. Among them was an act to pay the mileage and per diem of\nthe members; an act providing stenographers for the Supreme Court; an\nact authorizing the sale of four tracts of land at public sale; an act\nto pay J. J. O'Rourke $238.10 for room rent. On the other hand, an act\nto reimburse the Governor $5000 expended by him for state purposes,\nand an act to reimburse a sheriff $4000 expended by him in the support\nof state prisoners were not so considered.\n\nTrue, Oklahoma is a new and radical state, but let us turn to the\nextreme east, to Maine with its heritage of law-abiding traditions\nfrom the parent state of Massachusetts. Maine has also adopted the\nreferendum in language similar to that in the California\nconstitution, including the exception. The state had got along quite\ncomfortably without making Lincoln's birthday a legal holiday, but in\n1909 the legislature awoke to the imminent danger to the public peace,\nhealth or safety of the state in longer delay and so established such\na holiday at once without according to the people their right of\nreview. The town of Eden, in which is situated Bar Harbor, a summer\nresort, had by vote for sometime excluded automobiles without any\napparent danger to the public peace, health or safety, but at its last\nsession in 1913 the legislature by a two-thirds vote of all the\nmembers elected to each house adjudged that the public peace, health\nor safety would be imperiled by postponing for ninety days the\noperation of an act authorizing a repeal of the vote.\n\nIn all the instances cited, which are but few out of many, it is\ndifficult to see how the ninety days' postponement of the operation\nof the acts cited could imperil the peace, health or safety of the\npublic, however much it might inconvenience or annoy individuals or\nlocalities. These instances should, however, throw considerable doubt\nupon the proposition that the constitutional rights of the people are\nsafe in the hands of the legislative department without the check of\nthe judiciary. I have somewhere seen the statement that during recent\nyears upwards of 500 acts of federal and state legislation have been\nheld by the courts to be in violation of some constitutional\nprovision, and that this fact should arouse the people to put some\ncheck on such exercise of the judicial power. On the contrary, it\nshould arouse the people to insist on the retention of that power, and\nto elect wiser legislators who will more faithfully respect their\noaths to observe constitutional limitations.\n\nBut another and different proposition is urged upon us. It is not to\nleave the legislature without check upon the tendency to disregard\nconstitutional limitations upon its power, but to subject the judicial\ncheck itself to reversal by a majority of that part of the electorate\nchoosing to act on the matter. It is proposed that whenever a court of\nlast resort shall adjudge that a statute trespasses upon the reserved\nconstitutional rights of the individual, an appeal may be taken direct\nto the electorate, and that if a majority of those choosing to vote on\nthe question desire the statute to stand, the constitution shall\nthereafter be held to be amended to that extent. It is submitted that\nsuch a procedure would destroy all constitutional guaranties, no\nmatter what safeguards are attempted. Is there any assurance that such\na majority would be more considerate of the individual's right to\nlife, liberty, and property than their representatives whom they have\nselected or should have selected for their virtue and wisdom, and who\nare sworn, as well as the judges, to respect constitutional\nguaranties?\n\nUnder the present procedure for amendment to constitutions,\npropositions for amendment are first considered and debated face to\nface in a legislature or constitutional convention by representatives\nof the people, and cannot be submitted to the people until after\nopportunity for full and free discussion by their representatives, and\nthe people themselves have thereby been more or less prepared for its\nconsideration. Even under this procedure, amendments have been adopted\nthat the people have afterward regretted. There is now much agitation\nfor the \"short ballot,\" for restoring to the chief executive the power\nof appointment of important officials, a power at first possessed by\nhim, but taken away by later constitutional amendments. The adoption\nof the \"initiative and referendum\" has not produced the beneficial\nresults expected. It is found that the initiative sometimes produces\ndefective, unworkable statutes, and that the referendum can be used to\ndelay and even veto expedient legislation.\n\nUnder the proposed procedure the questions whether the constitution\nshould be amended and as to the nature of the amendment are sprung\nupon the people without this preliminary examination, debate and\napproval by their chosen representatives, and this often, if not\nalways, in times of popular excitement. With such a procedure I can\nsee no more stability of right, no more security for justice, than\nunder any unlimited, absolute government.\n\nHow unstable popular sentiment may be at times may be seen in the\nclassic example of the citizens of Rome applauding Marius and Sulla in\nturn with equal fervor, and in the lesser and very recent example of\nthe voters of the city of Seattle, who elected a mayor, then soon\nrecalled him, and but little later re-elected him by a larger majority\nthan before. Constitutions to be of any value as bulwarks of liberty\nshould not be immediately changeable with the popular sentiment of the\nday, but slowly and only after long reflection and discussion. They\nshould contain only the results of long thought and long experience.\n\nLegislation is ever active, ever moving this way and that way, ever\nexperimenting, enacting new statutes and amending and repealing old\nones, now imposing fetters on individual liberty, now striking them\noff and perhaps imposing others. Even in England and America, where\npersonal liberty of action is most prized, time was when statutes were\nenacted almost putting people and business in strait-jackets. In\nEnglish Norfolk as late as Henry VIII's time no one was to \"dye, shear\nor calender\" cloth except in the town of Norwich; and no one in the\nnorthern counties was to make \"worsted coverlets\" except in the city\nof York. In the reign of Elizabeth a statute was passed forbidding the\neating of meat on Wednesday and Saturdays and this not on the score of\nhealth or religion but avowedly to increase the price of fish.\nStatutes fixing the weight and price of loaves of bread and the size\nand price of a glass of ale were not formally repealed till 1824. The\nfamous Statute of Laborers forbade laboring men to ask or receive more\nthan a prescribed low sum for their labor and also forbade their\nmoving about seeking employment. The statutes against forestalling,\nregrating, and engrossing were not formally repealed until 1844. In\nearly times in New England also, statutory attempts were made to fix\nthe price of various commodities and the wages of various kinds of\nworkmen. Men were fined for accepting higher than the prescribed\nwages. The Sunday laws in some places forbade walking about on Sunday\nexcept \"reverently to go to and return from meeting.\" Everywhere was\nthe ever present tendency of the legislative power to invade and\ndirect every function of society,--social, religious, political, and\neconomical. It should be noted that all these and similar statutes\nwere under governments unrestrained by written constitutions and bills\nof right enforced by an independent judiciary.\n\nThough from time to time many restrictive statutes have been modified\nand many repealed, other restrictive statutes have been enacted. Today\nthe same process is going on. While now and then restrictions and\nembargoes of longer or shorter standing are removed, there is still\nthe same tendency to enact other restrictions and prohibitions. At\nevery session of Congress and of the state legislatures measures are\nconstantly proposed hampering in some way the freedom of the citizen\nin his occupation, in his pursuit of happiness. Demands are being made\nupon the legislative department by one class or interest for\nlegislation to restrain other classes or interests, but for exemption\nfor itself. In earlier times there were statutes fixing a maximum wage\nfor labor, and though these proved ineffectual it is now proposed to\nfix a minimum wage, even though it should prove to be much more than\nthe labor is worth. There are also proposed, and in many instances\nenacted, statutes restricting the freedom of the workman as to his\noutput, of the employer as to his direction of his business. The\nnatural activities of men are sought to be hampered and handicapped in\nvexatious ways. In illustration, I quote the following from the\n\"Boston Herald\" of June 5, 1914:\n\n\"Twenty-five states and the United States itself forbid any\ndiscrimination by an employer against union men. Utah alone has a law\nto protect the non-union men from organized discrimination of union\nlabor to drive him from his trade. Several of our states require that\nall public printing shall bear the union label. One extends that rule\nto all stationery. Twelve states require employers advertising for\nhelp to mention in the advertisement the existence of a strike. The\nMinnesota statute provides that, per contra, no employer shall require\nany statement from a person seeking employment as to his participation\nin a strike. Eight states have enacted statutes exempting labor\norganizations from their respective anti-trust laws. The unscrupulous\nemployer may yet find the labor union the best means of throttling his\ncompetitors and securing a monopoly.\" There seems at times to be a\nfrenzy for such legislation. Only a vivid imagination can adequately\npicture what might result if Congress and the state legislatures, or\nthe inconstant majority of the electorate, were freed from all\nconstitutional limitations or from the check of an independent\njudiciary.\n\nThough Great Britain, our mother country, has no written constitution\nand no judiciary empowered to enforce its limitations, it is the happy\npossessor of a practically homogeneous people of the Anglo-Saxon race,\nlittle affected by immigration, and imbued for centuries with a deep\nregard for personal liberty and private rights. Yet, even there today,\nstatutes are demanded and sometimes enacted in derogation of them. In\nthis country the population as the result of great immigration is more\nheterogeneous. It comprises races and peoples of diverse temperaments,\nof diverse experiences, of diverse traditions, many unschooled in\nself-government and lacking in that traditional reverence for liberty\nand order so characteristic of the Teutonic races. We even find some\nclasses openly declaring that if they can get possession of the\ngovernment they will exploit the rest of the people for their own\nbenefit. They essay also to bargain their votes for special\nlegislation in their favor at the expense of the people at large and\nwithout regard to the principles of equality of right.\n\nWith such a population with its universal suffrage, were it not for\nour written constitutions with their Bills of Rights and with an\nindependent judiciary to guard them, there would be no security here\nfor personal liberty and rights. We should be in the condition of the\npeople of France as depicted by Wm. S. Lilly in his recent book, \"The\nNew France.\" He wrote: \"It is now more than a century since the\nprinciples of 1789 were formulated there. But in no country, not even\nin Russia, is individual freedom less. The state is as ubiquitous and\nas autocratic as under the worst Bourbon or Oriental despots. Nowhere\nis its hand so heavy upon the subject in every department of human\nlife. Nowhere is the negation of the value and of the rights of\npersonal independence more absolute, more complete, and more\neffective.\" Yet France is a republic with manhood suffrage and with an\nelective legislature. But its courts are not vested with any power to\nconserve any rights of the people against legislative caprice.\n\n\nCONCLUSION\n\nThe thesis I have endeavored to support in these lectures, so far as I\nhave a thesis, is this: (1) that, after all, human justice consists in\nsecuring to each individual as much liberty of action in the exercise\nof his physical and mental powers and as much liberty to enjoy the\nfruits of such action as is consistent with like liberty for other\nindividuals, and with such restrictions only as are necessary for the\nwelfare of society as a whole without discrimination for or against\nany individual; and (2) that that justice is more firmly secured by\na government with a division of powers, with a written constitution\nexcluding from governmental interference such personal rights as\nlong experience has shown to be necessary both for the happiness\nand efficiency of the individual subject and for the welfare and\nefficiency of all; and (3) finally with an independent judiciary to\ndefend those rights when assailed, as they often have been, and will\nbe, by impatient and changeable majorities.\n\nIt may be admitted that the courts sometimes err in their\ninterpretation of the constitution and the laws, since judges, however\ncarefully selected, are but men; but there must be somewhere in the\nbody politic of a free state some body of men with the power of\nauthoritative interpretation of the fundamental law as well as other\nlaws. Does earlier history or later experience point to any better\nequipped, more stable, more safe tribunal? Should not the people\nendeavor to raise rather than lower the position of the courts; to\nconserve rather than impair that freedom, impartiality, and\nindependence of the judges declared by the people of Massachusetts in\ntheir Declaration of Rights, after years of galling experience of the\ncontrary, to be \"essential to the preservation of every individual,\nhis life, liberty, property and character\"? Are not they the\nreactionaries who, despite the lessons of history, would revert to\nthe days of a dependent, recallable, and hence timid judiciary?\n\nBut justice is not fully and certainly secured by the maintenance\nof particular political institutions, however excellent. Political\ninstitutions are not self-acting. They are only instrumentalities\nfor the action of society. They are not only to be established and\nmaintained; they are to be administered, and the best institutions may\nbe maladministered. Even under such a system of government as I have\nendeavored to show to be the best yet devised to secure justice,\ninjustice is still often suffered by the individual or by society.\nOppressive statutes within the legislative power are too readily\nenacted. Abuses in administration are too long permitted to exist. The\nonly remedy for these is a more enlightened public opinion, a wider\ndiffusion of the spirit of impartiality, a greater realization of the\nright and need of every person to life, liberty, and the results of\nhis industry and economy.\n\nNor are the judgments of our courts always righteous. Some of the\ninstances of unrighteous judgments result from failure to ascertain\nand apply the truth as to the facts of the case; some from errors in\njudgment; some from lack of firmness in judges in enforcing the known\nrights of the individual on the one hand, or those of society on the\nother; and perhaps a very few from incompetency or corruption. These\ncauses can be removed to a large extent, by a more rigid insistence on\nskill, ability, industry, learning, and courage on the part of those\nassuming to administer justice as attorneys and counselors. The same\ninsistence in the selection of judges will lessen the injustice\nresulting from their errors in judgment and from their lack of\nfirmness.\n\nThere is yet another cause of injustice, the delay and expense in\nobtaining even righteous judgments. It is an axiom, that justice\ndelayed is justice denied. This delay and expense are often charged\nagainst the courts and judges, as if they had full control over\njudicial procedure. It is not the judges but the legislature that\nshapes the judicial system and prescribes the judicial procedure,\nso far as they are not fixed by the constitution.\n\nIt is not the courts but the legislatures that provide for so many\nappeals and allow so many stays and consequent delays. Judges and\nlawyers the country over are urging a more simplified, a more speedy,\nand less expensive procedure. They are also urging the establishment\nof more courts with more judges to cope with the constantly increasing\nlitigation, in order that the wrongs against the individual and the\nwrongs against society may be redressed with a minimum of delay and\ncost. It is the legislatures that hesitate and often it is the\nlegislatures that tie the hands of the judges. In some states it is\nsought to deprive the judges of their proper influence in jury trials.\nIn some states it is even sought to prevent them from saying more than\nyes or no to proposed instructions to a jury. In many states nearly\nthe whole matter of procedure, its various steps, are fixed by statute\nand become difficult of improvement. If courts could have more power\nand the legislatures would interfere less in matters of procedure, I\nam sure the cause of justice would be better served.\n\nIn conclusion, perfect justice may not be attainable by us imperfect\nmen. As said by Addison, \"omniscience and omnipotence are requisite\nfor its full attainment.\" Yet it is our duty and especially the duty\nof those of the legal profession to attain to such approximation as\nmay be possible. No more noble work can engage our powers; no greater\nservice can be rendered mankind. I do not except the endowment of\nschools, colleges, libraries, and the like, nor the endowment of\nhospitals and other charitable institutions. Great as are the virtues\nof charity, benevolence, philanthropy, piety and the like, justice\nis a yet greater virtue. To quote Addison again, \"There is no virtue\nso truly great and godlike as justice\"; and in the words of Daniel\nWebster's eulogy: \"Whoever labors on this edifice of justice, clears\nits foundations, strengthens its pillars, adorns its entablatures,\nor contributes to raise its august dome still higher in the skies,\nconnects himself in name, fame, and character with that which is, and\nmust be, as durable as the frame of human society.\"\n\n\n\n\n                     PUBLISHED ON THE FOUNDATION\n                       ESTABLISHED IN MEMORY OF\n                         HENRY WELDON BARNES\n                  OF THE CLASS OF 1882, YALE COLLEGE\n\n\n\n\n                           STORRS LECTURES\n\n\n                  Published by Yale University Press\n\n    THE REFORM OF LEGAL PROCEDURE. By MOORFIELD STOREY. Price\n    $1.35 net delivered.\n\n    THE JUDICIARY AND THE PEOPLE. By FREDERICK N. JUDSON. Price\n    $1.35 net delivered.\n\n    CONCERNING JUSTICE. By LUCILIUS A. EMERY. Price $1.15 net\n    delivered.\n\n\n             _Uniform in style with the Storrs Lectures_\n\n    INTERNATIONAL ARBITRATION AND PROCEDURE. By ROBERT C. MORRIS,\n    with a foreword by PRESIDENT TAFT. Price $1.35 net delivered.","title":"Concerning Justice","tradition":"philosophy-ethics","translated_text":null,"word_count":28103}