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+The Project Gutenberg EBook of Concerning Justice, by Lucilius A. Emery
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
+with this eBook or online at www.gutenberg.org
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+
+Title: Concerning Justice
+
+Author: Lucilius A. Emery
+
+Release Date: March 4, 2010 [EBook #31504]
+
+Language: English
+
+Character set encoding: ASCII
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+*** START OF THIS PROJECT GUTENBERG EBOOK CONCERNING JUSTICE ***
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+Produced by The Online Distributed Proofreading Team at
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+
+                          CONCERNING JUSTICE
+
+                                  BY
+                          LUCILIUS A. EMERY
+
+
+                   NEW HAVEN: YALE UNIVERSITY PRESS
+                      LONDON: HUMPHREY MILFORD
+                       OXFORD UNIVERSITY PRESS
+                              MDCCCCXIV
+
+
+
+
+                           COPYRIGHT, 1914
+                       BY YALE UNIVERSITY PRESS
+
+               First printed August, 1914, 1000 copies
+
+
+
+
+                            TO MY CHILDREN
+
+                          HENRY CROSBY EMERY
+                      ANNE CROSBY EMERY ALLINSON
+
+
+
+
+        THE ADDRESSES CONTAINED IN THIS BOOK WERE DELIVERED IN
+        THE WILLIAM L. STORRS LECTURE SERIES, 1914, BEFORE THE
+        LAW SCHOOL OF YALE UNIVERSITY, NEW HAVEN, CONNECTICUT.
+
+
+
+
+                               CONTENTS
+
+
+  CHAPTER                                                       PAGE
+     I. THE PROBLEM STATED. THEORIES AS TO THE SOURCE OF
+        JUSTICE. DEFINITIONS OF JUSTICE                            3
+
+    II. THE PROBLEM OF RIGHTS. DIFFERENT THEORIES AS TO THE
+        SOURCE OF RIGHTS                                          31
+
+   III. THE PROBLEM OF RIGHTS CONTINUED. THE NEED OF LIBERTY
+        OF ACTION FOR THE INDIVIDUAL                              43
+
+    IV. JUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE
+        INDIVIDUAL AND THE SAFETY OF SOCIETY                      56
+
+     V. JUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL
+        ACTION. THE BEST FORM OF GOVERNMENT                       77
+
+    VI. THE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE
+        POWERS OF THE GOVERNMENT. BILLS OF RIGHTS                 95
+
+   VII. THE INTERPRETATION AND ENFORCEMENT OF CONSTITUTIONAL
+        LIMITATIONS NECESSARILY A FUNCTION OF THE JUDICIARY      110
+
+  VIII. AN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR
+        JUSTICE                                                  121
+
+    IX. THE NECESSITY OF MAINTAINING UNDIMINISHED THE
+        CONSTITUTIONAL LIMITATIONS AND THE POWER OF THE
+        COURTS TO ENFORCE THEM.--CONCLUSION                      146
+
+
+
+
+CONCERNING JUSTICE
+
+
+
+
+CHAPTER I
+
+THE PROBLEM STATED. THEORIES AS TO THE SOURCE OF JUSTICE. DEFINITIONS
+OF JUSTICE
+
+
+For centuries now much has been written and proclaimed concerning
+justice and today the word seems to be more than ever upon the lips of
+men, more than ever used, but not always appositely, in arguments for
+proposed political action. Hence it may not be inappropriate to the
+time and occasion to venture, not answers to, but some observations
+upon the questions, what is justice, and how can it be secured. It was
+declared by the Roman jurist Ulpian, centuries ago, that students of
+law should also be students of justice.
+
+By way of prelude, however, and in the hope of accentuating the main
+question and presenting the subject more vividly by comparison and
+contrast, I would recall to your minds another and even more
+fundamental question asked twenty centuries ago in a judicial
+proceeding in distant Judea. It is related that when Jesus, upon his
+accusation before Pilate, claimed in defense that he had "come into
+the world to bear witness unto the truth," Pilate inquired of him
+"What is truth?"; but it is further related that when Pilate "had said
+this he went out again unto the Jews." Apparently he did not wait for
+an answer. Perhaps he repented of his question as soon as asked and
+went out to escape an answer. Men before and since Pilate have sought
+to avoid hearing the truth.
+
+Indeed, however grave the question, however essential the answer to
+their well-being, there does not seem to be even now on the part of
+the multitude an earnest desire for the truth. Their wishes and
+emotions cloud their vision and they are reluctant to have those
+clouds brushed aside lest the truth thus revealed be harsh and
+condemnatory. The truth often causes pain. As said by the Preacher,
+"He that increaseth knowledge increaseth sorrow." People generally
+give much the greater welcome and heed to him who tells them that
+their desires and schemes are righteous and can be realized, than to
+him who tells them that their desires are selfish or that their
+schemes are impracticable. It has always been the few who have sought
+the truth, resolute to find it and declare it, whether pleasant or
+unpleasant, in accord with the wishes of mankind or otherwise. Such
+men have sometimes suffered martyrdom in the past, and often incur
+hostility in the present, even when seeking that truth on which alone
+justice can securely rest.
+
+Nevertheless, so closely linked are truth and justice in the speech,
+if not the minds, of men, there should be some consideration of
+Pilate's question. Whether truth is absolute or only relative has been
+perhaps the most actively discussed topic in the field of philosophy
+for the last decade. Into this discussion, however, we need not enter,
+for such discussion is really over the problem of determining the
+proper criterion of truth. Wherever be this criterion, whether in some
+quality of inherent rationality or in some utilitarian test of
+practicability, the truth itself has some attributes so far
+unquestioned and of which we may feel certain as being inherent,
+necessary, and self-evident.
+
+Truth is uncompromising. It is unadaptable; all else must be adapted
+to it. It is not a matter of convention among men, is not established
+even by their unanimous assent, and it does not change with changes of
+opinion. It is identical throughout time and space. If it be true now
+that since creation the earth has swung in an orbit round the sun, it
+was true before the birth of Copernicus and Galileo. If it be true now
+that the sum of the three angles of a triangle is equal to the sum of
+two right angles, it was always true and always will be true, true at
+the poles and at the equator, true among all peoples and in all
+countries, true alike in monarchies, oligarchies, and democracies.
+
+Truth is also single. There are no different kinds of truth, though
+there may be innumerable kinds of propositions of which truth may or
+may not be predicated. Whichever criterion the philosophers may
+finally agree upon, it will hold in all propositions alike. The truth
+of a proposition in mathematics is the same as the truth of a
+proposition in any other science, physical, social, political, or
+theological. It can be no more nor less true in each and all. Again,
+in every science, social and political as well as others, and as to
+every proposition in any science, the truth is to be discovered, not
+assumed by mere convention; and men must discover it and discover it
+fully at their peril. Failure even after the utmost effort will not be
+forgiven. If the truth be found it will be a sure guide in life. If it
+be not found the lives of men will so far go awry. That it may be
+difficult to find, that we may never be sure we have found it, makes
+no difference.
+
+Are there any attributes of justice of which we can speak so
+confidently as being necessary, inherent, and self-evident? That
+justice ranks next to truth, if not with it, seems to have been, and
+to be, the general judgment of mankind. It has engaged the thought and
+fired the imagination of the greatest minds. A few quotations from
+such, ranging from ancient to modern times, will illustrate this.
+The Hebrew Psalmist gloried that "justice and judgment" were the
+habitation of Jehovah's throne. Aristotle wrote, "political science is
+the most excellent of all the arts and sciences, and the end sought
+for in political science is the greatest good for man, which is
+justice, for justice is the interest of all." Early in the 12th
+century the jurist Irnerius, distinguished for his learning and
+for his zeal in promoting the revival of the study of law and
+jurisprudence, and also as the reputed founder of the famous Law
+School at Bologna, imaged justice as "clothed with dignity ineffable,
+shining with reason and equity, and supported by Religion, Loyalty,
+Charity, Retribution, Reverence, and Truth."
+
+Six centuries later Addison, famed as a clear thinker and writer,
+thus wrote of justice: "There is no virtue so truly great and godlike
+as justice.... Omniscience and omnipotence are requisites for the full
+exercise of it." Almost in our own time Daniel Webster, called in his
+day the great expounder and even now reckoned among the greatest of
+men intellectually, in his eulogy upon Justice Story thus
+apostrophized justice: "Justice is the great interest of man on earth.
+It is the ligament which holds civilized beings and civilized nations
+together. Wherever her temple stands and so long as it is duly
+honored, there is a foundation for social security, general happiness,
+and the improvement and progress of our race." Perhaps, however, none
+of these laudations is so vividly impressive as is the pithy remark of
+an old English judge that "injustice cuts to the bone."
+
+But what is this justice, declared to be so great a virtue, so
+ineffable, so supremely important? I have said we feel certain of some
+attributes of truth. Do we know or can we know anything certain about
+justice? Is it something above and apart from the will of men, or is
+it simply a matter of convention among men? Is it immutable, or does
+its nature change with changing times and conditions? If mutable, does
+it change of itself or do men change it? Is it universal or local, the
+same everywhere or is it different in different localities? Is it the
+same for all men and races of men or does it differ according to
+classes and races? Again, is it single or diverse in its nature? Is
+there more than one kind of justice? We hear of natural justice,
+social justice, industrial justice, political justice. What do they
+who use those terms mean by them? Do nature, society, industry,
+politics, each have a different criterion? Still again, and briefly,
+is justice an inexorable law like the law of gravitation or can its
+operation have exceptions? Is it simply a quality of action or
+conduct, or, as stated by Ulpian, is it a disposition or state of
+mind? Finally, is it a reality or, as Falstaff said of honor, is it
+after all "a word," "a mere scutcheon?"
+
+I am not so presumptuous as to venture an answer to any of these
+questions except perhaps the last. As to that, I appeal to our
+consciousness, to our innate conviction that there does exist
+something, some virtue, some sentiment, however undefinable in terms,
+holding men together in society despite their natural selfishness, and
+without which they would fall apart. It is this virtue, this ligament
+of society, that we call justice. We feel that the word is not a mere
+word, but that it connotes a vital reality in human relationship. If
+this reality be ignored, men cannot be held together in any society.
+
+If justice be the greatest good, as so generally asserted, then its
+negative, or injustice, must be the greatest evil. Hence error in
+men's opinions of what is justice will work that greatest evil.
+Society as a whole is liable to error in respect to justice; has often
+been mistaken in the past and may be mistaken today. The individuals
+composing society are seldom, if ever, wholly disinterested and
+dispassionate in their judgments. Each individual is prone to believe
+that what is apparently good for himself or his group or class, is in
+accord with justice. Himself persuaded that he is battling for
+justice, he does not see that he may be battling only for some
+advantage over others, for some individual relief from common burdens,
+for some privilege not to be accorded to others; does not see that
+what he is battling for may cause injustice to others. Through
+ignorance of the real nature of justice, the grant to one of his plea
+for what he calls justice may work grievous injustice to others. So
+when altruists, warm with sympathy, obtain the enactment of laws
+intended for the betterment of the less fortunate, they may at times
+do injustice to others and even to those they hoped to benefit.
+History records many instances where laws intended to insure justice
+had the contrary effect. Many a statute designed to prevent oppression
+has itself proved oppressive in operation. Many a theory of justice
+has been found to work injustice. A conspicuous and familiar instance
+is found in the history of the French Revolution. The Jacobins
+believed that their theories if given effect would usher in the reign
+of justice in France. They obtained power and exploited their theories
+only to bring in the Reign of Terror, that reign of terrible
+injustice.
+
+As mistakes and grievous mistakes have been made in the past as to
+what is justice, so they will be made now and in the future, and can
+be lessened only by greater wisdom and forethought, by greater effort
+to consider justice apart by itself, with philosophical detachment,
+with minds unclouded by pity, sympathy, charity, and other like
+virtues, on the one hand, or by envy, hate, prejudice, and like evil
+sentiments, on the other. True, men are more enlightened now and
+education is more general, but society is more complex, with more
+diverse and conflicting interests, than formerly. The social mechanism
+is now so intricate that even a slight disturbance in one part may
+disarrange the whole. Injustice to one may injure the many. Hence the
+duty of ascertaining as completely as possible the real nature of
+justice is as imperative today as ever. As declared by Ulpian, this
+duty is especially incumbent upon those who have to do with the
+framing or administration of the laws, since justice can be enforced
+only by law.
+
+In any inquiry into the nature of justice we get little help from the
+wisdom of the ancients. They wrestled with the question but seem to
+have been as puzzled as we of today. Indeed, Plato represents the sage
+Socrates as frankly confessing his inability to answer satisfactorily
+the persistent question "What is justice?" The question comes up for
+discussion by Socrates and some friends at the home of Cephalus at the
+Piraeus. Socrates criticizes and punctures the definitions advanced by
+the others until Thrasymachus, apparently with some heat, challenges
+Socrates to give an answer of his own to the question "what is
+justice?" and not to content himself, nor to consume time, with merely
+refuting others. After some further discussion of various aspects of
+the question, Socrates finally says, "I have gone from one subject to
+another without having discovered what I sought at first, the nature
+of justice. I left the inquiry and turned away to consider whether
+justice is virtue and wisdom, or evil and folly, and when there arose
+a further question about the comparative advantages of justice and
+injustice I could not refrain from passing on to that. The result of
+the whole discussion has been that I know nothing at all. I know not
+what justice is and therefore am not likely to know whether or not it
+is a virtue, nor can I say whether the just man is happy or unhappy."
+Granting that the confession may have been intended ironically, the
+further discussion did not result in any practical solution, even if
+in one possible in Plato's ideal, but impossible, state. Indeed, the
+inquiry is not yet closed and will not be until the millennium.
+
+Still, upon a question so old, so important, so persistent, so
+ingrained in human society, and even now receiving such diverse and
+conflicting answers, a brief consideration of the earlier beliefs and
+theories may not be useless. As said by Bishop Stubbs, the historian,
+"The roots of the present lie deep in the past and nothing in the past
+is dead to him who would learn how the present came to be what it is."
+The roots should be examined by him who would understand the tree.
+
+In Homer we get a glimpse of a theory of his time, to wit, that each
+separate decision given by the magistrate in any litigated controversy
+was furnished to him by Zeus specially for that case. The Greek word
+for such a decision was _themis_, and it was supposed that somewhere
+in the Pantheon was a corresponding deity whose special function was
+to furnish the appropriate themis for each case. This deity was
+shadowily personified as the goddess Themis, the daughter of heaven
+and earth, the companion and counselor of Zeus. It was she who
+summoned gods and men to council and presided unseen over their
+deliberations. Hence she came to be regarded as also the spirit of
+order without which the Greek philosophers, notably Plato, held there
+could be no justice.
+
+This theory that justice and even the laws were but the will of deity,
+revealed in various ways, was long generally accepted. In Rome, in the
+time of the kings, the king was the Pontifex Maximus, and as such,
+with the help of the College of Priests, declared the laws and decided
+lawsuits. For some time also under the Republic, when a vote was to be
+taken in the Comitia upon a proposed law, the question was thus put:
+"Is this your pleasure, O Quirites, and do you hold it to be the will
+of the gods?" Under the Empire, despite the reasoning of many
+philosophers and lawyers that the Emperor derived from the people his
+power to make laws and declare the law in any given case, he assumed
+and was assumed to have derived the power and inspiration solely from
+the gods.
+
+The early Christian Church also preached the doctrine that the ruling
+power in the state, however established, was ordained of God and as
+such was entitled to the obedience of the pious. This belief that
+justice and judgment were simply the will of God, to be ascertained,
+not by reason but by other means, was so general and deep that such
+crude devices as trials by ordeal and battle were often resorted to
+for determining guilt or innocence and other questions of fact.
+Indeed, resort to such expedients for determining questions of law, as
+well as questions of fact, was not unknown. In the tenth century under
+the Saxon King Otto a question arose whether upon the death of their
+grandfather his grandchildren by a prior deceased son should share in
+the inheritance along with their surviving uncles. The king ordered a
+trial by battle, which being had, the champions for the grandchildren
+were the victors. It was therefore held to be the divine will that
+grandchildren by a prior deceased child should inherit direct from
+their grandfather. I may here remind you that trial by battle was not
+formally abolished in England until well into the 19th century. And
+there is even now professed a belief that the will of God can be
+ascertained by counting ballots. "Vox Populi Vox Dei" is still a
+shibboleth.
+
+But the doctrine that justice is heaven born, superior to and
+controlling the opinions and wills of men, did not escape challenge
+even in ancient times. Those sects of philosophers known as Epicureans
+and Sophists, consistently with their theory of the nature of virtue
+in general, maintained that justice was merely a name for such
+conventions among men as they should adjudge best for their own
+utility and happiness. The most vigorous champion of this latter
+theory appears to have been one Carneades, a Greek philosopher of the
+second century B.C., said to have been the founder of the third
+Academy and expounder of the philosophy of probabilities and to have
+possessed the acutest mind of antiquity. In a course of lectures at
+Rome he stated the arguments for the orthodox view of justice and
+then boldly assumed to answer them and demonstrate that justice was
+not a virtue at all as virtue was defined by the philosophers, but was
+merely a convention; was what men should agree to be a sound basis for
+the maintenance of civil society, and hence that it varied with times,
+places, circumstances, and even opinions. This argument evidently had
+much effect upon public opinion, for Cato urged in the Senate that
+Carneades be banished because dangerous to the state.
+
+So great was the influence of Carneades that a century later Cicero, a
+disciple of the Stoic school of philosophy, thought it necessary to
+refute him specifically as the chief heretic, and to uphold the
+orthodox theory against his arguments. Cicero denounced with eloquent
+warmth the doctrine that utility was the foundation of justice. He
+declared that, not utility, but nature, was the source of justice,
+that justice was a principle of nature, the ultimate principle behind
+all law. To abridge the familiar quotation from his "De Republica,"
+"There is a law which is the same as true reason, accordant with
+nature, a law which is constant and eternal, which calls and commands
+to duty, which warns and terrifies men from the practice of deceit.
+This law is not one thing at Rome, another at Athens, but is eternal
+and immutable, the expression and command of Deity." In his treatise
+"De Legibus" he declared that men are born to justice; that right is
+established not by opinion but by nature; that all civil law is but
+the expression or application of this eternal law of nature; that the
+people or the prince may make laws but these have not the true
+character of law unless they be derived from the ultimate law; that
+the source and foundation of right law must be looked for in that
+supreme law which came into being ages before any state was formed.
+
+This theory of the Stoics so eloquently urged by Cicero was
+practically the _jus naturale_ of the Roman jurists of classical
+times, though more moderately expressed by them. It does not seem to
+have been wholly academic, but to have been actually applied at times.
+In his history of Rome, Mommsen relates that even during the nearly
+absolute sway of Sulla, after the fall of Marius, the Cornelian Laws
+enacted to deprive various Italian communities of their Roman
+franchise were ignored in judicial proceedings as null and void; also
+that, contrary to Sulla's decree, the jurists held that the franchise
+of citizenship was not forfeited by capture and sale into slavery
+during the civil war with Marius. Later, when the church became a
+power in the state there are instances where laws adjudged to be
+contrary to the laws of God were refused effect. In England as late as
+the middle of the 17th century Chief Justice Hobart, a judge of high
+repute, asserted that "even an act of Parliament made against natural
+equity, as to make a man judge in his own case, is void in itself for
+the laws of nature are immutable and they are the laws of laws." In
+the 18th century Blackstone assented to the doctrine of a _jus
+naturale_ and wrote of it: "This law of nature being coeval with
+mankind and dictated by God himself is of course superior in
+obligation to any other.... No human laws are of any validity if
+contrary to this, and such of them as are valid derive all their force
+and all their authority, mediately or immediately, from this
+original." True, Blackstone combated the doctrine that duly enacted
+statutes were to be held void if the judges thought them contrary to
+reason, but he admitted that that extreme doctrine was more generally
+held. In this country the doctrine of a higher law than the
+Constitution even, and to be obeyed rather than the Constitution and
+laws enacted in accordance therewith, has had and even now has earnest
+advocates.
+
+But the contrary doctrine of Carneades and the Sophists would not
+down. After Cicero and the civilians, after Hobart and Blackstone,
+came our modern utilitarians, or sophists, Bentham, Mill, Austin, and
+others, who have vigorously maintained with weighty arguments the
+utilitarian theory of justice; and that theory is now generally
+accepted by lawyers and statesmen as at least the most workable
+theory in human affairs. There still exists, however, in the minds of
+many the belief that above and behind all the turmoil and strife of
+politics, all the flux and reflux of social movements and public
+sentiment, the confusion of enactments, amendments, and repeals of
+statutes, the swaying of judicial opinion, there is some law of nature
+or in nature, some criterion, which if ascertained and obeyed would be
+perfect justice.
+
+This question of the origin, the foundation of justice, whether it
+be of God or of men, seems to have been much more debated than the
+question what is the nature of justice whatever its origin or
+foundation. Yet some attempts, other than those attributed to
+Socrates, have been made of old to give a definition of justice. The
+earliest description I have found is that of the early Pythagoreans,
+who, in accordance with their practise of symbolizing the virtues by
+geometrical figures, designated justice by the square, and the just
+man by the cube. Plato seems to have had a theory of justice when he
+wrote in the "Gorgias," "Nature herself intimates that it is just for
+the better to have more than the worse, the stronger than the weaker,
+and in many ways she shows that among men as well as among animals
+justice consists in the superior ruling over and having more than the
+inferior." In these days our first impulse may be to denounce Plato's
+statement as altogether wrong if not worse. We should remember,
+however, that Plato was not considering any altruistic virtue such as
+kindness, sympathy, benevolence, generosity and the like, but only
+what nature indicates to be the essential condition of successful
+association. Thus interpreted, are we prepared to confute the
+statement? Do we know of any state of society in human or animal life
+at any time, past or present, of which the contrary of Plato's
+statement is true?
+
+But passing over all other attempts of the ancients to define justice,
+none of which seems to have been much regarded by contemporary
+opinion, I will only cite the most famous, that by Ulpian, the
+renowned jurist of the best period of Roman jurisprudence, whose
+writings were most drawn upon by the learned compilers of the
+Institutes and Digest of Justinian; viz., "Justitia est constans et
+perpetua voluntas jus suum cuique tribuendi," or "Justice is the
+constant and perpetual will to render to every one his right." This
+definition was adopted by the compilers as correct and made the
+introduction to the Institutes. It thus received the imperial sanction
+and was quoted wherever the law of Rome prevailed, down through
+medieval times and later, almost as if it were an inspired or at least
+authoritative definition not to be questioned. But notwithstanding the
+acclaim with which this definition was hailed, I question that it was
+any improvement on that of Aristotle, who tersely defined justice as
+"that virtue of the soul which is distributive according to desert."
+Indeed, I think Aristotle was nearer the mark.
+
+Upon the revival of the study of law and jurisprudence in the 11th
+and 12th centuries several of the more famous jurists of that time,
+Azo, Irnerius, Placentinus and others, essayed definitions of justice,
+but they do not seem to have improved upon Ulpian. Their definitions
+were vitiated by theological assumptions and none of them has become
+a text for commentators or students. Neither in modern times has any
+definition of justice been suggested which has received such universal
+assent as did that of Ulpian in his time and for centuries afterward.
+We may therefore return to Ulpian's definition as our point of
+departure, since his definition is substantially that suggested
+earlier by Aristotle, and observations on the later will also apply in
+many respects to the earlier.
+
+Ulpian's definition is elegant in style, but it does not carry us very
+far in our inquiry. We are told indeed that justice is a state or
+disposition of the mind, the disposition to render to everyone his
+right or, as put by Aristotle, is the disposition to distribute
+according to desert. It was this statement that captured the medieval
+jurists and which they made their text, but it is now regarded as
+incomplete and even inaccurate. One may have the disposition, the
+desire, the will, to render to every one his right, but unless he can
+know what is his fellow's right he may unwittingly fail to accord it
+to him and thus unwittingly do injustice. It evidently is not enough
+to have the disposition or will; hence the definition is incomplete,
+and any definition is incomplete which does not furnish a criterion
+for determining what is the given man's right.
+
+But the definition as far as it does go is not strictly accurate. The
+man of malevolent disposition who would wrong his fellow if he dared,
+may yet, to avoid unpleasant consequences to himself, render fully to
+every other man his right. It would seem, therefore, that justice is
+an attribute or quality of conduct rather than a disposition or state
+of mind, and of conduct toward others rather than of conduct toward
+one's self. It is only of the conduct of men in their relations to
+other men that we can predicate justice or injustice. One's conduct
+may result in good or evil to himself and so be wise or unwise, but
+assuming, what probably is never the fact, that it affects only
+himself, in no way affects any other, his conduct is neither just nor
+unjust. Robinson Crusoe, until the arrival of the man Friday, had no
+occasion to consider our problem.
+
+But, admitting that each man's conduct, whether active or passive,
+does affect some other person, what is the criterion by which to
+determine the justice or injustice of that conduct? It is not enough
+to say that if the conduct in any degree impedes the other person in
+the enjoyment of any of his rights it is unjust, otherwise not; for
+then the question comes to the front, what is the right of that other
+in the given case? Indeed, this latter question is the crux of the
+problem of justice. The derivation of the word "justice" also shows
+this. The Latin _justitia_ or _justitium_ according to some scholars
+is compounded of _jus_, right, and _sisto_ or _steti_, to place, or
+to cause to stand, and hence the whole word may be held to signify the
+maintenance of _jus_ or right. With the question of _jus_ or right
+correctly answered, the problem of justice is practically solved. The
+right of the one being known, the effect of any particular conduct of
+another on that right, and consequently its justice or injustice, is
+determinable with comparative ease. Hence to make progress in our
+inquiry we must consider the problem of rights, for we almost
+instinctively accept as correct so much of Ulpian's definition as
+implies that justice is to be predicated of the act of rendering to
+everyone his right. We instinctively feel that if we render to another
+his full right we do him full justice, and that if we ourselves are
+deprived of any right we suffer injustice. What is his or our right is
+therefore the real question. This will be our next subject for
+consideration.
+
+
+
+
+CHAPTER II
+
+THE PROBLEM OF RIGHTS. DIFFERENT THEORIES AS TO THE SOURCE OF RIGHTS
+
+
+The problem of Rights is also centuries old. There have been in later
+years glowing tributes to human rights even more than to justice,
+though the sentiment of rights is egoistic, while that of justice is
+in some measure altruistic. There have also been diverse opinions in
+the past, as now, as to the source, foundation, and nature of what are
+called Rights, as there were and are of justice. A brief review of
+these opinions and of the changes in them may present the problem more
+vividly.
+
+In patriarchal times there could be no political questions about
+rights. The head of the family was supreme and sole ruler and judge.
+Even in Rome under an organized civil government the pater familias
+was long left the power of life and death over the members of his
+family. When families and tribes were combined in states, government
+was long conducted on the theory that as the individual had belonged
+to the family or tribe into which he was born or adopted, so he now
+belonged to the state, to be directed and disposed of as the state
+might order. What he might enjoy of life, liberty, or property was the
+gift of the state, subject to revocation at will. Plato reflects this
+theory in making Hippias declare that the measure of man's right is
+what the state commands. The total abolition of the liberty of
+innocent persons by holding them in slavery was not deemed any
+infringement of any right of theirs. This theory was acted upon in
+democratic as well as in monarchical states. Slavery was as lawful in
+Athens, Sparta, and republican Rome as in Persia or Egypt. True, there
+were rebellions and revolutions at times, but, though sometimes
+provoked by oppression, they were usually to acquire the power of
+government and not in defense of individual rights. The Plebeians
+revolted to obtain a greater share in the governing power. The civil
+wars of Marius and Sulla were not waged for liberty but for power. In
+Sicily, where the slaves under Eunus had for a time wrested the
+governing power from their masters, they did not hesitate to enslave
+in turn.
+
+The doctrine that the individual man has some rights by nature which
+the state ought not to disregard had no place in ancient nor medieval
+governments. The English Magna Charta purports to be a grant from the
+king and, though framed by the barons and forced upon the king, it
+contains no assertion of rights by nature. The rights claimed were
+claimed as accustomed rights previously conferred and enjoyed, such as
+the laws and customs of the time of Henry I. Apart from provisions as
+to improved methods of administration, the language of the Charter
+implies restoration rather than revolution.
+
+So in the Petition of Right in the reign of Charles I, no appeal was
+made to natural rights, but the demand was for accustomed privileges,
+for the observance by the king of the old laws and customs of the
+realm, especially those in force under Edward I and Edward III. In the
+Petition, the Charter of King John is cited, not as a schedule of the
+rights of man in the abstract, but as "The Great Charter of the
+Liberties of England," implying that the liberties therein named were
+not the natural heritage of men in general but the peculiar heritage
+of Englishmen, under English law. The prayer of the Petition is simply
+that the king shall accord the people of England "their rights and
+liberties according to the laws and statutes of the realm."
+
+So in the Bill of Rights framed by Parliament and approved by William
+and Mary upon their accession to the throne, it was not asserted that
+the acts of James II complained of were contrary to any natural right
+of the subject, but that they "were utterly and directly contrary to
+the known laws and statutes and freedom of this realm." The purpose of
+the Bill of Rights was declared by the Parliament in behalf of the
+people to be "for the vindicating and asserting their ancient rights
+and liberties." In the earlier remonstrances of the legislatures of
+the English colonies in America against various acts of the king and
+Parliament, only the accustomed rights of Englishmen were claimed to
+be violated. The colonists, at first, claimed as against king and
+Parliament no rights not accorded to Englishmen in England.
+
+But though the notion that man has rights by nature, not granted by
+the state and which the state should respect as such, did not for
+centuries find expression in state papers or state action, it was by
+no means non-existent. It was early in the minds of many and found
+some expression in the writings of jurists and philosophers. In Rome
+it was a corollary of the doctrine of the existence of a _jus
+naturale_. The statement of that doctrine by Ulpian incorporated in
+the Digest implies a doctrine that man does have some rights anterior
+to and independent of the state. So far, however, as the statement
+was susceptible of that construction it was not generally acted upon
+and remained practically a dead letter. The doctrine itself survived,
+however, engaging the attention and receiving the support of various
+writers. It gradually gained ground among students of politics and
+spread rapidly after the Protestant Reformation, so-called, because of
+the impetus given by that event to the exercise of private judgment.
+As early as the 17th century, though finding little or no expression
+in the Petition of Right or Bill of Rights, the doctrine that
+individual rights were derived from nature rather than from the state
+was generally entertained by the Puritans and other dissenters from
+the Established Church, and was invoked by them to some extent as
+justifying the revolution of 1640. The doctrine also passed over to
+the Puritan Colonies in America and early found some expression there.
+In the Massachusetts "Body of Liberties" of 1641 there is a suggestion
+that the liberties, etc., therein recited, were those demanded by
+"humanity, civility and christianity" rather than "accustomed"
+liberties. It was further asserted that these liberties were to be
+enjoyed by the people of the Colony and their posterity forever.
+
+The later disputes as to the proper limits of the power of the British
+King and Parliament over the American Colonies led the colonial
+lawyers and politicians to a study of the theory of natural rights
+advanced by various political writers, English and Continental. It has
+been said, I think with truth, that the writings of Locke, Voltaire,
+Rousseau, Montesquieu, and even of Blackstone, were more widely read
+and studied in America than in Europe. The brilliant writings of Tom
+Paine also had great influence. The result was that the doctrine of
+natural rights came to be generally accepted by the people of the
+Colonies as the real foundation of their claims and the real
+justification for their resistance to the objectionable acts of the
+King and Parliament. In 1774 the first Continental Congress in its
+Declaration of Rights declared that the people of the Colonies had
+those rights by "the immutable laws of nature" as well as by their
+charters and the principles of the English Constitution. Two years
+later in the Declaration of Independence the representatives of the
+people made no reference to their charters nor to the principles of
+the English Constitution as the foundation of their claims, but based
+them exclusively on the theory of natural rights. They declared: "We
+hold these truths to be self-evident, that all men are created equal;
+that they are endowed by their Creator with certain unalienable
+rights; that among these are life, liberty and the pursuit of
+happiness."
+
+The same influences undoubtedly contributed to bring about the French
+Revolution of 1789, and the theory of natural rights again found
+expression in the French state papers of that period. In August of
+that year, in the early stages of the Revolution, the following
+"Declaration of the Rights of Man and Citizen" was put forth by the
+National Assembly and afterwards made the first two articles of the
+Constitution of 1791, viz., "Art. 1. Men are born and remain free and
+equal in rights. Social distinctions can be based only upon public
+utility. Art. 2. The aim of every political association is the
+preservation of the natural and imprescriptible rights of man. These
+rights are liberty, property, security and resistance to oppression."
+
+Thus in the latter part of the 18th century the doctrine that man has
+some individual rights by nature, not by grant or prescription, and
+not alienable, obtained official recognition in two great nations. It
+has since been formally and officially iterated in the Constitutions
+of many American States and has been proclaimed and invoked as an
+impregnably established political truth. Nevertheless the doctrine is
+only a theory, not yet demonstrated nor undoubted. It has been
+assailed and in the opinion of many refuted, by Bentham, Mill, and
+other utilitarian writers, the successors of Epicurus, Carneades and
+the Sophists. Even in France and America it is now repudiated by many
+and declared to be an obstacle to social and political improvement.
+Still, despite the vigorous arguments against the doctrine, there
+remains the innate feeling and a general belief that society abridges
+individual rights instead of conferring them. In support of this
+notion may be cited the fact that the statutes of any state or nation
+are almost wholly restrictive or compulsory in character, and rarely,
+if ever, permissive. From the Decalogue down, the language of the law
+has been compulsive, "Thou shalt" and "Thou shalt not"; and men
+generally act upon the theory that what society does not forbid by
+statute or custom the individual may do.
+
+In passing now from the region of theory, of speculative opinion, to
+what seems to me the region of facts, of actual conditions, of actual
+traits of human nature, I wish it to be understood distinctly that in
+what I may say about rights I am considering only the precepts of
+justice, and that I differentiate those precepts from the precepts
+of religion, charity, philanthropy, benevolence, and other similar
+virtues, and even those of what is loosely called humanity. If it be
+true as asserted by Addison that justice is the greatest and most
+godlike of the virtues, it does not follow that the just man, to be
+just, must possess all or any of the other virtues. One can be just
+without being religious, charitable, or philanthropic, and even
+without earning the reputation of being humane.
+
+I wish further to premise that I am considering our subject only with
+reference to those who have grown to the age of self-maintenance and
+consequent freedom. I do not take into account the rights of children
+under that age.
+
+With these premises borne in mind, I would now in the next chapter
+call attention to some propositions of fact, which I shall assume
+to be established by science and history and by the reader's own
+experience and observation, and which I think bear more or less
+directly on our subject.
+
+
+
+
+CHAPTER III
+
+THE PROBLEM OF RIGHTS CONTINUED. THE NEED OF LIBERTY OF ACTION FOR
+THE INDIVIDUAL
+
+
+Men are endowed by nature with sundry powers, faculties, capacities,
+physical and mental. These, however, are not at all uniform, but are
+diverse in kind and degree in different races of men and in different
+individuals of the same race. Nature seems to work through diversity
+rather than through uniformity, indeed through inequality rather than
+through equality. Not all men are born poets, nor are all poets
+equally good poets. Not all men are by nature adapted for intellectual
+pursuits, and those who are so adapted are not in that respect equally
+favored by nature. Even in the field of the simplest manual labor
+there is great diversity of natural capacity. It seems to be nature's
+theory that mankind, the human race as a whole, will be better served
+by diversities, by differences in kinds and degrees of powers, than by
+uniformity and equality.
+
+Further, normal men are also by nature endowed, if not with rights,
+yet with sundry instincts, desires, passions; also with sundry
+feelings, emotions, sentiments; and also with some degree of reason
+and power of choice. Some of these may not be apparent in infancy, but
+they appear in a greater or less degree of intensity as the individual
+develops.
+
+Among these instincts or desires is the desire to live, the desire to
+serve each his own welfare and that of his offspring, and the desire
+to decide for himself what will best serve that welfare. As a
+corollary, he also has by birth the desire for freedom to exercise any
+and all of his talents and powers in such manner, to such extent, and
+in pursuit of such objects as he prefers, or to be idle if he prefers
+idleness. Further, he has the instinct of acquisitiveness, the desire
+to appropriate to himself and retain control of such material objects
+as he thinks may serve his welfare and that of his offspring, and
+especially does he have a natural instinct and desire to possess and
+control exclusively for himself whatever, much or little, he has
+wrenched from nature or otherwise obtained by the exercise of his
+various powers. This instinct is also observable in some animals. A
+dog will hide a bone for his own exclusive future use. Man also
+instinctively claims for his own the natural increase of what he has
+acquired, the young of his beasts, the fruits of his orchard.
+
+This desire for control includes the desire to store up, to use, to
+consume, to transfer, and even to destroy at will. This desire is seen
+in young children, who will try to clutch and hold whatever attracts
+them, and who will hoard or break toys or throw them away as their
+whims may be. As they get older the desire to control grows stronger,
+for they destroy less and preserve more in order to have greater
+measure of control; but still they desire freedom to consume or
+destroy at their own will. So strong is this desire of control that
+men wish to direct what shall be done with their property after their
+death.
+
+If one is balked or hindered in the gratification of any of these
+desires, there is excited in him a feeling of resentment against the
+cause, even if it be only some force of nature. There is a note of
+anger in the cries of a child over interference with his play, the
+deprivation of any toy or other thing he may have or desire. That the
+wind or the rain was the cause does not sooth him. In the mature man
+also, anger adds some force to the kick he gives even inanimate
+objects unexpectedly impeding him. Who of us has ever fallen over a
+chair in the dark without mentally, at least, consigning it to
+perdition? The old law of Deodand was an expression of this feeling of
+resentment against inanimate objects even. By that law, according to
+Blackstone, whatever chattel was the immediate cause of the death of
+a reasonable creature was forfeited to the crown, as when a cart ran
+over a man. By the laws of Draco whatever caused a man's death by
+falling upon him was to be destroyed or cast out of the community.
+Thus a statue having fallen upon a man, it was thrown into the sea.
+The Mosaic law savagely declared: "If an ox gore a man that he die,
+the ox shall be stoned and his flesh shall not be eaten."
+
+Is not this instinctive feeling of resentment at interference with
+one's person, liberty, or property, the rudiment of a later developed
+idea, or sentiment, of rights possessed? Resentment is felt only when
+one is deprived of something he feels he is entitled to. Granting that
+nature has not endowed man with rights, it has imbued him with a
+belief that he has rights, and also with a disposition to defend them.
+
+Man is also born into a material world of natural forces, and hence to
+gratify his desire to live and serve his own welfare and that of his
+offspring, he must adapt himself to his environment, fit himself to
+withstand heat and cold, provide himself with food and shelter. He not
+only desires to, but he must, exercise his powers of mind and body and
+hence should be free to exercise them to that extent at least. Nature
+does not feed, clothe and shelter man. It only provides the raw
+material which man must himself find, take, and convert by his labor,
+manual and intellectual, into food, clothing, shelter, and whatever
+else he desires.
+
+But man is also born into association with other men, into some sort
+of social organization, and well for him that he is. It is not
+society, however ill organized, that has caused, or today causes,
+poverty. That is the primitive condition of the human race. It is only
+through some social organization ensuring to man freedom for his labor
+and security for his savings that he can escape poverty. If each
+individual by his own unaided efforts had to find the raw material,
+mold it to serve his needs and desires, and also defend it from
+attacks by others, his life would be one of dire poverty, scarcely
+above that of the higher animals.
+
+Further, nature has so formed man that he not only needs but desires
+association with other men. Children instinctively flock together for
+common play, and this social instinct continues through life and
+extends to work as well as play. We find men everywhere in the
+civilized world voluntarily entering into associations for various
+purposes thought by the members to be of service to themselves or
+others. But there is over and surrounding these associations that
+larger association, racial or territorial, which we call society. This
+is the necessary association into which man is born and in which he
+must live if he desires other than mere animal life. This society must
+be maintained if the race of men, as men and not as mere animals, is
+to continue. Indeed, society itself has a sort of instinct for
+self-preservation. It is not a mere aggregation of individual units
+but is an association of sentient correlated beings with a resultant
+life and movement of its own.
+
+Association, however, does not extinguish nor appreciably lessen the
+natural instincts, desires, feelings, sentiments, etc., of the
+individual, though they may be made less active by continued
+restraint. Association even extends the scope of man's individual
+desires and activities. He now desires freedom to make arrangements
+with other men of such nature and for such purposes as he and they may
+agree upon. If he is prevented by authority from making such
+arrangements he feels some resentment, feels that his right is
+infringed. He also comes to desire that those who have entered into
+arrangements or contracts with him should perform their part, and he
+instinctively feels resentment at their neglect or refusal to do so.
+He feels that he has a right to the performance of the contract.
+
+Another desire is developed or given play by society,--the desire to
+equal one's fellows in the race for benefits, and, that accomplished,
+to excel them. He desires to win in every game, to be the victor in
+every contest of physical or mental powers, and in business as well as
+in sports. If he is held back he feels resentment against the power
+assuming to restrain him. He thus feels he has a right to equal and to
+excel if he can. Whether competition should be enforced or stimulated
+by society is a question in economics. What affects the question of
+rights and hence of justice is whether this desire to excel should be
+impeded.
+
+In this association, however, each individual man finds himself in
+close contact all through life with other men having like instincts,
+desires, feelings, emotions, etc., as his own; and who also feel like
+resentments and have like notions of rights possessed. If each is left
+by society free to gratify these desires or to enforce his claims of
+rights in his own way unmindful how his action may affect others;
+if they be left free to "take who have the power" and only they may
+"keep who can," society could not exist and civilization, if not the
+race, would perish.
+
+Society, therefore, must frame and enforce rules for the regulation
+and control of the conduct of its individual members, must even
+restrain them to some extent from the gratification of some of their
+desires. On the other hand, these instincts, desires, etc., must still
+be reckoned with. They cannot be wholly suppressed nor even very much
+reduced or impeded if society is to progress or even exist. There must
+be left to the individual some degree of liberty of choice and action.
+An eminent American jurist, James C. Carter, vividly stated this,
+though perhaps in the extreme, when he wrote that the sole function of
+law and legislation is to secure to each individual the utmost liberty
+which he can enjoy consistently with the preservation of the like
+liberty to all others. "Liberty (he wrote), the first of blessings,
+the aspiration of every human soul, is the supreme object. Every
+abridgment of it demands an excuse, and the only good excuse is the
+necessity of preserving it." (Carter's "Law. Its origin and growth,"
+page 337.)
+
+There must also be left to the individual some personal motives for
+labor and thrift, for, after all, it is the toil of individuals that
+supports society and its members. It is the surplus products, not
+consumed, but stored up by the economy of individuals that constitutes
+the energy of society. However it may be improved in the future, the
+nature of the average man today is such that he will not toil and deny
+himself without prospect of rewards to accrue to himself for his own
+personal use. He will not strive to earn and then conserve his
+earnings unless he can have them for his own, to control, use and
+dispose of at his pleasure. However it may be with a few unselfish,
+devoted souls, men as a rule are not yet so altruistic as to devote
+themselves exclusively to the good of others, of society. I think it
+evident that if the impelling natural desire to serve one's self be
+wholly or even largely disregarded by society, little would be
+produced or saved by voluntary labor and self-denial. The alternative
+would be the restoration of some system of enforced labor, of slavery,
+for the vast majority of men. At this day, after centuries of
+exhortation to practise the virtues of benevolence, of brotherly love,
+of self-sacrifice for the good of others, men do not from pure love of
+humanity voluntarily endure heat and cold, expend their labor and
+savings in working mines, in braving seas, in building and operating
+factories, railroads and steamships, in growing corn and cotton. Even
+those public offices, in which the altruist might find the best
+opportunities for serving the people, are not much sought for unless
+some personal honor or pecuniary profit be attached to them. Should
+society decree that the laborer, whether with hands or brain, should
+have no individual reward proportionate to the efficiency of his
+labor, but only his numerical proportion of the product of all
+laborers, I fear the efficiency of all classes of laborers, manual
+and mental, would fall to the "irreducible minimum."
+
+The foregoing statements and inferences lead to the question, how far
+should society go in undertaking to regulate the conduct and restrict
+the freedom of the individual,--that freedom which would be his if he
+were alone in the world? It may be thought that this is a question of
+expediency for economists and sociologists, and so it is largely, but
+it is also a question of rights and hence of justice, since every
+action or non-action of society affects the freedom of the individual
+in the gratification of his desires or, in other words, in his pursuit
+of happiness.
+
+
+
+
+CHAPTER IV
+
+JUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE INDIVIDUAL AND THE
+SAFETY OF SOCIETY
+
+
+The question stated at the close of the last chapter is most important
+and, in a sense, is perhaps the crux of the whole matter. Not only may
+error in the solution of the question injuriously affect the material
+interests of individuals and hence of society as a whole, but it may
+cause unhappiness far greater than that caused by any material loss,
+viz., a sense of injustice. As said by the English judge, "Injustice
+cuts to the bone."
+
+At the outset I accept Herbert Spencer's theory that the idea of
+justice contains two sentiments, positive and negative; the one the
+sentiment of the individual that he has the right by nature to the
+unimpeded use of his faculties and to the benefits he acquires by
+such use; the other the consciousness that the presence of other
+individuals with similar claims of rights necessitates some limitation
+of his own claims. Out of those two sentiments is evolved, I think,
+the idea of justice or injustice according as they are or are not in
+equilibrium. They suggest the definition that justice is the
+equilibrium between the full freedom of the individual and the
+restrictions thereon necessary for the safety of society. The
+restraint of personal conduct within too narrow limits, the necessity
+of which cannot be made clear, excites resentment, stimulates angry
+passions, and hence causes unhappiness through a sense of injustice.
+Restraint within necessary limits only, the necessity of which can
+be seen, arouses no resentment; on the contrary, it satisfies the
+individual, favors harmonious cooperation, profits society and
+increases the happiness of its members, through the appreciation of
+that necessity.
+
+But for the fixing of the boundary line between necessary and
+unnecessary restraints upon personal conduct, some other matters still
+are to be considered. I have said that man instinctively feels
+resentment at interference with whatever he may think is his right to
+do, or get, or keep. If this interference is from any of his fellow
+men his resentment is greater than when it is from natural forces.
+There arises the desire for vengeance, the desire to "get even,"--to
+use a common phrase,--by inflicting a corresponding injury on the
+offender. An eye for an eye, a tooth for a tooth, is instinctively
+demanded now as of old. If unable to inflict a corresponding injury
+there is the desire to inflict an equivalent injury. To paraphrase
+Bacon, revenge is justice running wild.
+
+This instinct should be heeded by society. If it be necessary for its
+own preservation that society restrain this instinct, prohibit private
+vengeance, then it must itself provide for satisfaction of the
+instinct; the offender must be compelled to make full compensation or
+else be made to suffer in turn some deprivation of rights claimed by
+him that shall be commensurate with the offense. This should be done
+speedily and gratuitously so far as possible. Delay and expense cause
+resentment in the suitor for justice and so cause injustice. In doing
+this, society not only protects itself but it restores an equilibrium
+of rights disturbed by the offender. This restoration of equilibrium
+is an essential element in the concept of justice. Of course, as
+society progresses and human nature improves, this desire of the
+injured for vengeance on the offender becomes weaker. The virtues
+of mercy, forgiveness, or willingness to forego the demand for
+punishment, come into play and society is allowed to attempt to reform
+rather than to punish, or is allowed to pardon altogether. These
+virtues, however, are not part of the concept of justice. If the
+punishment seems inadequate, or the pardon seems undeserved, there
+remains, or is again excited, the feeling of resentment. The
+equilibrium is not restored.
+
+Another sentiment or feeling is to be reckoned with in order to secure
+this equilibrium in society. The young, untrained child is impatient
+of all restraint. It is only by experience that he learns he must
+submit to restraint if he would have any sort of association with his
+fellows. He learns that he must submit to the rules of the game if he
+would have a part in the game. As he comes to maturity he becomes
+conscious that society must impose restraint upon him and hence feels
+no resentment against all restraint, as does the untrained child. He
+does, however, feel resentment if restraints are imposed upon him in
+his pursuit of happiness which are not imposed upon others in their
+pursuit. Similarly he feels resentment if exemptions from restraint
+are allowed some others and not allowed him also. Furthermore, he is
+quick to note any discrimination against himself and prone to imagine
+it when in fact there is none.
+
+Almost as soon as the average child is placed with others under a
+common authority, as in a public school, he begins to complain of the
+teacher's partiality to other pupils. He will stay in no game where
+the rules operate unequally against him. He insists on an even chance
+with his fellow players. When later in life he engages in business he
+resents any favoritism shown by the government of his state or town to
+others in the same or a similar business. This feeling is especially
+noticeable in the matter of taxation. If one believes the taxes
+imposed by the government are unnecessarily heavy he may feel some
+resentment, but his resentment is much greater if he believes he is
+overtaxed in comparison with his fellows, that they are escaping
+their proportionate share of the burden, or that taxes are imposed
+on his products in order to favor the products of others, as when
+oleomargarine was taxed to handicap it in its competition with butter.
+
+This feeling of resentment at inequality of restraints and burdens
+imposed and exemptions granted is not ignoble, is not a feeling to be
+suppressed or even concealed. It is far different from the feeling of
+envy. If I can only afford to ride in a trolley car I may envy the man
+who can afford to ride in a luxurious motor car and yet not feel
+wronged. But if I am excluded from a public street car to which he is
+admitted I have a different feeling, that of resentment. I may be
+perfectly willing that all others, rich or poor, shall use the streets
+to the full extent that I do, but if it be proposed that my use shall
+be limited in order that some others may for their private purposes
+have more than an equal use with me, my feeling is not one of envy
+but of indignation. So I can appreciate that if I wilfully or through
+carelessness injure another I should make full compensation, and hence
+can cheerfully submit to the law compelling me to do so; but if the
+law undertakes to exempt any other person from a similar liability,
+I feel a keen sense of wrong. Conversely, the most strict
+disciplinarian, the martinet even, if otherwise competent receives
+ready obedience and respect if it is seen that he treats alike,
+according to their merits, all subject to his authority. This feeling
+is natural. Nature is impartial in the application of its laws. It
+allows no exemption. Its fires burn the weak as well as the strong,
+the child as well as the man, the poor as well as the rich. One star
+differs from another star in glory, but no one of all the millions of
+stars is exempt from any of the laws set by nature for stars.
+
+This feeling of right to impartiality of treatment had some faint
+expression in the Massachusetts "Body of Liberties" of 1641, in which
+it was declared that the liberties, etc., therein enumerated should
+be enjoyed "impartially" by all persons within the jurisdiction of
+the colony. It was more distinctly recognized in the Connecticut
+Declaration of 1818 and a part of the Connecticut Bill of Rights
+today, "That all men when they form a social compact are equal in
+rights and that no man or set of men are entitled to exclusive public
+emoluments or privileges from the community." Again it appears in the
+federal and some state constitutions in the provision against the
+granting of titles of nobility. It seems to be at least impliedly
+recognized in the XIVth amendment to the United States Constitution
+in the clause that no state "shall deny any person within its
+jurisdiction the equal protection of the laws," since "the equal
+protection of the laws" necessarily implies protection against unequal
+laws, laws favoring some at the expense of others or of the whole. If
+the state favors one more than another it does deny that other equal
+protection. I do not subscribe to the doctrine that "the greatest good
+of the greatest number" is to be sought. The only legitimate search is
+for the good of the whole number without discrimination for or against
+any one. This sentiment found expression in the once popular slogan,
+"Equal rights for all. Special privileges for none." I say once
+popular, for today it would seem not popular in practice. True,
+special privileges are still loudly denounced, but under the name of
+special exemptions, they are still demanded by those who denounce
+them most loudly.
+
+It is not inequality of natural powers of body or mind, nor inequality
+in natural conditions, that excites this feeling of resentment I have
+noted. The man of feeble natural powers may envy him of strong natural
+powers, but he can see that society, that law, is not responsible for
+that inequality. If one finds himself from lack of natural ability or
+adaptiveness unable to accomplish what others of superior ability or
+adaptiveness easily accomplish, and hence he fails to receive the
+prize they so easily win, he may feel great disappointment and regret,
+but if honest with himself will not attribute his failure to the
+injustice of society.
+
+It is not essential to the preservation of society and the race that
+such inequalities should be removed, that all men should be reduced
+to a dead level of capacity, that human nature should be ignored.
+It is strongly felt, however, that society should not itself create
+artificial inequalities, should not allow one man or set of men a
+liberty it will not allow to others, should not impose burdens on one
+man or set of men to be borne by them alone while others are exempt;
+or if it does undertake to do so it should be able to demonstrate that
+such artificial inequality is necessary for the safety of all. The
+intensity of this feeling against artificial inequalities is so great
+that men sometimes prefer equality before the law even to liberty.
+When the British ambassador said to Madam De Stael that Frenchmen had
+no more liberty after the Revolution than before, she answered that
+they had acquired equality before the law and they preferred that to
+more liberty. This sentiment was tersely and well expressed in the
+French Declaration of Rights of 1795. "Equality consists in this, that
+the law is the same for all whether it protects or punishes."
+
+Of course, no assertion of rights can be carried to the extent of the
+dictum, "Fiat Justitia ruat Respublica," for if the state fall, all
+hopes of justice fall with it. When the alternative is the conquest
+of the particular society by invasion or its disorganization by
+rebellion or rioting or otherwise, some of its members must submit to
+the sacrifice of some or all of their rights. Nature will sacrifice
+individuals for the preservation of the race. Society must sometimes
+do the same. "Inter arma silent leges." But such times are exceptional
+and not within the scope of our inquiry.
+
+To sum up the matter, justice is the according to every one his right,
+and that right is such freedom of action in gratifying one's desires
+as can be exercised in harmony with like freedom by others. In other
+words, it is equal freedom, equal restraint. It is order and harmony.
+Plato and Aristotle were right in teaching that order is an essential
+element of justice.
+
+But who is to determine the matter? Who is to determine what degree of
+restraint or liberty is necessary to secure this order and harmony,
+this justice? Obviously it is society, or rather, individuals acting
+as a whole through society and not each individual acting for himself,
+that must determine such questions. Society has the responsibility. If
+it imposes too many restraints or imposes them unequally it excites,
+as said before, resentment and antagonism, sometimes to the extent of
+resistance. If it imposes no more restraints than are necessary and
+imposes them equally, order and harmony are secured. And when we have
+this equal freedom with equal and only necessary restraints we have
+order and harmony,--in other words, justice. Indeed, to repeat,
+justice in some of its aspects may be considered as the desired
+equilibrium between the needs of society and the interests of its
+individual members.
+
+I have left out of the account various virtues,--pity, sympathy,
+philanthropy, generosity and the like. Though these make social life
+more agreeable and contribute much to the sum of human happiness, they
+are not essential to the existence of the race or society. Society as
+an organization is not held together by these virtues, though many of
+its weaker members might suffer and perish if they were non-existent.
+Allow men as much freedom of thought and action as can be exercised
+without interference with like freedom of others, but restrain them
+from exercising any greater freedom, and they can and will live
+together in society though they may be wholly selfish in feeling and
+conduct. What is called the golden rule, that we should do to others
+as we would have them do to us, is a precept of philanthropy, of
+charity, not of justice. The rule enunciated by Confucius five hundred
+years before Christ, the rule that we should not do to others what we
+would not have them do to us, is sufficient for the existence of
+society. The French Convention of 1793 stated the proposition in these
+words: "Liberty is the power that belongs to man to do whatever is not
+injurious to the rights of others; it has nature for its principle,
+justice for its rule, law for its defense: its normal limit is the
+maxim, Do not to another that which you do not wish to be done to
+you."
+
+This order and harmony, however, are not easily secured. Not only are
+there honest differences of opinion as to what restraints are
+necessary and how and on whom they should be imposed, but society is
+divided into groups or classes with interests conflicting, or thought
+to be conflicting, and each seeking to impose restraints on others
+while retaining freedom for themselves. While professing to demand
+more liberty and equality, they are often really insisting on greater
+restraint and inequality. The successful insistence of the
+trades-unions of England in securing from Parliament a statute
+exempting their funds from answering in damages for injuries caused by
+them is a conspicuous instance. Another and equally glaring example is
+the effort in this country to exempt from the law against combinations
+in restraint of trade, combinations to increase the cost of living by
+increasing the prices of agricultural products and the prices to be
+paid for labor. The effort seems to be to compel men to compete in the
+use of their savings no matter how wasteful the competition, and to
+forbid men competing in the use of their labor, no matter what the
+idleness thereby caused. I think it a truism that whoever seeks to be
+exempted from the restrictions or liabilities he would impose on
+others, seeks not justice, but to do injustice.
+
+Another hindrance arises out of the very virtues of pity and sympathy.
+These impel many to endeavor, not to persuade, but to compel the more
+efficient and prudent who have by their farsightedness, courage,
+industry and thrift made good provision for themselves and their
+offspring, to provide also for the inefficient and the improvident. To
+be asked to give to these does not offend any sense of right, but if
+one be told he must give he feels resentful at once. He feels he has a
+right to decide for himself to whom and to what extent he shall give
+of his savings. Society did not come into existence nor does it now
+exist to correct the inequalities of nature, the inequalities of
+natural powers, nor to prevent the efficient and prudent receiving and
+enjoying the results of their efficiency and prudence. Nature itself
+makes no such effort. It rather tends to eliminate the less efficient
+and preserve the more efficient. Even if society may strive to
+preserve the inefficient and improvident, should it do so by hampering
+and restraining those wiser and more capable? We must expect nature to
+deal with society, with states and nations, as it does with
+individuals. If a state by its laws discourages the exercise to its
+full extent of the efficiency of the few and renders less severe the
+penalties for the inefficiency and imprudence of the many, it cannot
+long maintain any advantageous position among other nations. Whatever
+the precepts of religion, of philanthropy, or of other virtues may
+require, the precepts of justice do not require society to support men
+in idleness nor even to furnish them with employment. Neither do the
+precepts of justice require the state to furnish opportunities, nor
+even to establish equality of opportunity, but only equality of right
+to take advantage of opportunity. It is a saying, but not a fact, that
+opportunity knocks once at every man's door. Nature does not bring
+opportunities, much less equal opportunities, to men's doors. It
+requires men to go out and search for opportunities, or at least to be
+on the watch for them, as it requires men to search or watch for other
+things they desire; and he of the quickest perception and most
+farsighted will soonest see them, and when seen he does not feel any
+obligation to share them with others less vigilant or even less
+fortunate. Society does not support its members, they support it and
+must support it and themselves by their own exertions, find their own
+place, find employment for themselves, so far as the precepts of
+justice are concerned.
+
+However prevalent the sentiment that more than equality of right to
+use his opportunities is due to any one, it is not an instinctive
+sentiment. The contrary is the fact. Unless we are dominated by some
+other sentiment than justice, we instinctively yield assent to
+Aristotle's proposition that the prize flute should be awarded to the
+best flute player whether opulent or indigent, literate or illiterate,
+citizen or slave. A group of small children exploring the fields and
+woods for wild flowers will concede to each what flowers he finds
+whether by his better eyes or better luck. So with groups of small
+boys fishing in the streams and brooks. In games of cards for stakes,
+the players do not expect to hold cards of equal value and they
+concede the stakes to the winner, whether won by his greater skill or
+superior cards.
+
+Also there is an instinctive sentiment that the evil results of one's
+own conduct should be borne by him alone. If one suffers loss through
+his own misjudgment, incapacity, or want of care, then, whatever the
+precepts of other virtues may require, we do not feel that justice
+requires us to bear any part of that loss. On the contrary, we feel
+instinctively that he should bear the loss alone, that it is the
+natural penalty for his lack of judgment, capacity, or care. If my
+neighbor neglects to insure his house and loses it by fire, I see no
+reason why he should not bear the loss alone.
+
+In this connection, perhaps I should not omit to notice references
+often made to the rights of labor, the rights of capital, property
+rights, and personal rights, as if they were different in their nature
+and importance. I do not as yet see such difference. All rights are
+personal rights, and the right of each to control his labor, his
+savings, his person, and his property is the same. I am not yet
+convinced that the right of the laborer to make use of his labor is
+superior to that of the capitalist to make use of his capital; that,
+whatever his greater need, the right of one without property is
+superior to that of one who has property; that the right to get is
+superior to the right to save. It is also loudly proclaimed that
+"property rights" are of little importance compared with "human
+rights," unmindful of the truth that the right "of acquiring,
+possessing and defending property" is, as much as any other, a human
+right and, as such, necessary to be maintained if the race is to rise
+above its primitive condition of poverty. However, I do not see that
+the differences, if any, affect the general question of individual
+rights.
+
+The conclusion I arrive at is this: Society, and with it the race,
+cannot survive unless it restrains to some extent individual freedom
+of action, nor can any particular society long survive if it carry
+that restraint too far. It should, therefore, ascertain and maintain
+the line, the equilibrium, between necessary freedom and necessary
+restraint. It is only by such action of society that justice can be
+established and the welfare of the race be advanced. This brings us to
+the question of how and by what instrumentalities society can best
+perform this momentous task, the securing of justice. This will be
+considered in the next chapter.
+
+
+
+
+CHAPTER V
+
+JUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL ACTION. THE BEST
+FORM OF GOVERNMENT
+
+
+In the present state of civilization society cannot act effectively
+for determining and maintaining the line, the equilibrium, between
+necessary freedom and necessary restraint, or in short, justice,
+except through some governmental organization with power to define and
+enforce. Appeals to altruistic sentiments will not suffice. This truth
+was recognized by the framers of our federal and many state
+constitutions, in naming first among the purposes of government the
+establishment of justice.
+
+Any government, however, or rather those entrusted with its
+administration, may through mistake or wilfulness do injustice to some
+of its subjects. It has often done so in the past and the future is
+not free from the danger. The very possession of power excites a
+desire to use it, and it is an admitted characteristic of our human
+nature that those vested with power, political or other, are prone to
+exercise it unduly, to abuse it. Men in authority are often said to be
+"drunk with power." Hence to ensure justice the governmental
+organization should be such that the limits of the various powers of
+the government be carefully defined and its administrators be kept
+within those limits.
+
+Some years ago I might have pointed to our own federal and state
+governments as the best in form and character for establishing justice
+and rested there. In later years, however, the superiority of our
+system is questioned, and radical changes are urged, and indeed some
+have been made, in the federal system and in that of some of the
+states. I feel, therefore, that I should make some defense of the
+system, believing as I do that in its general form and character it is
+best adapted to secure firmly as much individual liberty of action
+and equality of right as is consistent with the welfare of the whole
+number, or, in other words, best adapted to secure justice.
+
+It has become a familiar maxim that the functions and powers of
+government may all be grouped in three classes or departments,
+corresponding to the duties already named: (1) that of determining
+what rules and regulations should be observed, what restraints and
+duties should be imposed upon its subjects; (2) that of determining
+whether in a given case any of these rules, etc., have been violated;
+and (3) that of punishing their violation and otherwise enforcing
+their observance. These three groups have come to be called the three
+powers of government and to be designated as the legislative,
+judicial, and executive, though they are usually named in another
+order as the executive, legislative, and judicial.
+
+The most efficient form of government for good or evil, and the
+quickest to act, is undoubtedly that in which all of these powers are
+united in a single individual. If that individual were always strong,
+yet peace-loving, self-controlled, sagacious and exclusively devoted
+to the welfare of his subjects, that form of government would perhaps
+secure them justice most surely and speedily. Such men, however, are
+rare and such governments have been found to be invariably and almost
+inevitably arbitrary in their dealings with their subjects, and in the
+plenitude of their power to become oppressive. While they may
+effectually protect their subjects from foreign aggression and
+domestic anarchy, their tendency is to impose burdens and restrict
+individual liberty more than necessary, and to disregard the innate
+desire of men for liberty or at least for equality of restraint. This
+form of government has already largely disappeared and is further
+disappearing, though it may again be resorted to for the restoration
+of order, should the present forms of government fail to prevent
+violence and preserve the peace.
+
+But other forms of government have not been and are not yet wholly
+free from the same objectionable tendency. The vesting of all these
+governmental powers in a group or class of persons instead of one
+person has been followed by the same results. Aristocracies or
+oligarchies have the same tendency and even in a greater degree. They
+have proved even more selfish and tyrannical than the single ruler.
+They, like all crowds, are less sensitive in conscience, less moved by
+appeals to reason, than is the single individual. They offend more the
+sentiment of equality. The French Revolution was not so much against
+the king as against the nobility, who with their oppressive feudal
+exemptions had excited the resentment of the people at large. It was
+not till after he had cast in his lot with the emigres that the king
+was deposed and guillotined.
+
+Nor have pure democracies, in the few instances where they have
+undertaken to exercise directly all the powers of government, showed
+less tendency to be arbitrary and inconsiderate of individual freedom
+and desires. The nearest approach to such a government was that of
+ancient Athens where the populace sent into exile, practically without
+trial, Aristides, called the Just, Miltiades, the victor of Marathon,
+and Themistocles, the victor of Salamis. The excesses of the Paris
+Commune of 1870 during its reign, the lynchings of today by mobs of
+so-called "respectable citizens" who assume the power to accuse, judge
+and execute all at once, indicate how much regard unrestrained
+democracies would have for the rights of their individual members.
+
+Nevertheless, despite the danger of more or less arbitrariness, of
+more or less oppression of the individual, any government must be made
+strong enough perfectly to maintain order and peace among its
+subjects. Order is earth's as well as heaven's first law. The goddess
+Themis in the early Greek mythology was the goddess of order as well
+as the supplier of _themistes_ or decisions. She was present as the
+spirit of order in the councils of gods and men. The government that
+cannot or will not maintain order and peace, prevent violence and
+fraud, enforce individual rights and redress individual wrongs
+completely and promptly, is so far a failure and whatever its form
+should be reformed or overthrown. Even military despotism is better
+than disorder.
+
+On the other hand, there must be taken into account the tendency,
+already mentioned, of the possessor of unlimited power over others to
+use it for his own benefit or pleasure at the expense of those subject
+to his control, where not restrained by affection or like virtues.
+Under all governments there has been more or less friction between the
+persons governing and those governed; more or less strife, sometimes
+culminating in rebellion and even revolution. If it be said that under
+a government by the people directly, a pure democracy, such as seems
+to be advocated at this day, there would be no distinction between
+governors and governed, that all would be governors and governed
+alike, the answer is that in a pure democracy the governing power is
+and can be exercised by only a part of the people, a majority it may
+be, but still only a part. This part are the governors. The other
+part, perhaps nearly as numerous, are governed. Friction and even
+factious strife would still exist. Indeed, a government by a pure
+democracy ruling directly would probably be more arbitrary than any
+other, as was the case in Athens. The government by one, or that by a
+few, would be restrained to some extent by public opinion, would
+refrain from extreme measures lest they excite effectual resistance,
+but a majority would feel no such restraint. It would itself
+constitute public opinion and it would be less likely to fear
+resistance.
+
+It is evident, therefore, that the frame of government should be such
+as to secure uniformity in its action so that it shall not act
+arbitrarily and unequally on its subjects. I assume that no sane man
+would desire to live under any government where the wielders of the
+governmental power, one or many, are entirely without legal restraint.
+We all desire normally, not only order and peace, but also personal
+liberty and equality of rights. The problem, then, is how to order the
+frame of government so that it shall be strong enough to protect us
+individually as well as collectively, but not left able to oppress us
+or any of us. As said by Alexander Hamilton, we "must first enable the
+government to control the governed, and in the next place oblige it to
+control itself."
+
+One great step toward such a form of government was made in the
+establishment of our federal and state governments by giving effect to
+the theory of the tripartite nature of governmental powers, entrusting
+each of the three to a different person or group of persons, or, in
+other words, to a different department, each restraining the other
+departments from exceeding their defined powers, so that the
+government, however democratic, shall not run wild. At this day,
+however, even this feature of our form of government is assailed as
+hampering the people and their government and greatly delaying desired
+reforms. It may be admitted that a government with its powers thus
+separated in different departments is not able to act as quickly as
+desired by zealous persons confident of the excellence of their
+schemes and impatient for their realization, but, on the other hand,
+it is less liable to act too hastily, less liable to act arbitrarily,
+or to disregard individual rights and interests.
+
+The idea of a division of governmental powers is not of recent origin.
+Aristotle argued that the judges should have no other political power,
+should not themselves enforce their decisions. In Rome under the
+Republic there was divided between the pretor and the judex the power
+to decide controversies. The pretor had other duties, but the judex
+was confined to the single duty to hear and determine. The framers of
+our Federal Constitution and of our early state constitutions did not
+act hastily nor unadvisedly. As heretofore stated, the long
+controversy with Great Britain over the relations between that country
+and her Colonies, the arbitrary acts of the British King and
+Parliament, caused in the Colonies a profound study of the nature of
+government: what should be its purposes and how best to effect its
+purposes and avoid its abuses. The principal men among them in each
+Colony were familiar with the history of governments and with the
+theories of government advanced by European lawyers and political
+philosophers. They were acquainted with the arguments of Montesquieu
+and others that a separation of the powers of government and the
+vesting of each, the executive, legislative, and judicial, in
+different hands was essential to liberty. They did not merely
+theorize, however. They had themselves lived and labored under
+governments not thus divided in functions or only partially so.
+Colonial governors had assumed legislative functions in the
+promulgation of ordinances, and also judicial functions as judges of
+probate and in other ways. The colonial legislatures did not hesitate
+to dictate to the courts in particular cases and often acted as a
+court of appeal. In Massachusetts Bay the legislature came to be known
+as the General Court and exercised judicial power freely, sometimes
+calling in the judges to sit with them. The same individual could at
+one and the same time fill an executive and a legislative or judicial
+office. In colonial Massachusetts William Stoughton held the offices
+of military commander, lieutenant governor, and chief justice at the
+same time. Because of the frequent and prolonged absences of the
+titular governor he was often the acting governor. As an inevitable
+consequence, when sitting as a judge he was more a zealous prosecutor
+than an impartial judge. His conduct in the witchcraft trials was
+comparable to that of Jeffreys in the infamous "Bloody Assizes."
+Hutchinson was also often acting governor while holding his commission
+as chief justice.
+
+In view of their experience and deep study, the opinions formed by
+the framers of the early constitutions of this country should be of
+great weight in forming our own. It is worth while to cite the
+opinions of some. Thomas Jefferson was not in his day, nor has he been
+since, regarded as opposed to popular government. Virginia had as
+early as 1776 declared in its first constitution that the three great
+departments should be kept separate. Jefferson, who besides his other
+opportunities of observing the operation of government was himself
+chief magistrate of the state, criticized that constitution as not
+making such separation effectual. In his "Notes on Virginia" he wrote
+of it: "All the powers of government, legislative, executive and
+judiciary, result to the legislative body. The concentrating these in
+the same hands is precisely the definition of despotic government. It
+will be no alleviation that these powers will be exercised by a
+plurality of hands and not by a single one. One hundred and
+seventy-three despots would surely be as oppressive as one. Let those
+who doubt it turn their eyes on the republic of Venice. As little
+will it avail us that they are chosen by ourselves. An elective
+despotism was not the government we fought for, but one which should
+not only be founded on free principles, but in which the powers of
+government should be so divided and balanced among several bodies of
+magistracy as that no one could transcend their legal limits without
+being effectually checked and restrained by the others. For this
+reason the convention which passed the ordinance of government laid
+its foundation on this basis, that the legislative, executive and
+judiciary departments should be separate and distinct, so that no
+person should exercise more than one of them at the same time. But no
+barrier was provided between these several powers." It was this
+defect, this lack of barriers, that Jefferson lamented.
+
+When the draft of the Federal Constitution of 1787 was submitted to
+the states, one of the principal objections urged against it was that
+in its structure sufficient regard was not paid to keeping the three
+departments of government separate and distinct. In reference to this
+objection Madison wrote in the "Federalist": "No political truth is
+certainly of greater intrinsic value or is stamped with the authority
+of more enlightened patrons of liberty than that on which this
+objection is founded. The accumulation of all powers, legislative,
+executive, and judiciary, in the same hands, whether of one, few, or
+many, and whether hereditary, self-appointed, or elective, may justly
+be pronounced the very definition of tyranny. Were the Federal
+Constitution therefore really chargeable with this accumulation of
+powers, or with a mixture of powers having a dangerous tendency to
+such an accumulation, no further argument would be necessary to
+inspire a universal reprobation of the system." He elsewhere declared
+the maxim to be a "fundamental article of liberty."
+
+Hamilton was apprehensive of danger to liberty from the legislative
+department and favored a strong executive to guard against it. He
+declared in the "Federalist" that the legislative department was
+"everywhere extending the sphere of its activity and drawing all power
+into its impetuous vortex,"--that the people "never seem to have
+recollected the danger from legislative usurpation which by assembling
+all power in the same hands must lead to the same tyranny as is
+threatened by executive usurpation." Washington in his Farewell
+Address, after much experience with, and observation of, legislative
+action, said: "The necessity of reciprocal checks in the exercise of
+political power by dividing and distributing it in different
+depositaries and constituting each the guardian of the public weal
+against invasions by the others has been evinced by experiments
+ancient and modern, some of them in our own country and under our own
+eyes. To preserve them must be as necessary as to institute them."
+
+After having lived for generations under governments in which there
+was no effective division of powers, the people of the various
+colonies in setting up their own governments at the time of the
+Revolution very generally declared for such division, in more or less
+explicit terms. Even in the few cases where the division was not
+expressly made, it was implied in the constitution. The provision in
+the constitution of Massachusetts adopted in 1780 may be cited as an
+example of the strength of the conviction. "In the government of this
+Commonwealth the legislative department shall never exercise the
+executive and judicial powers or either of them; the executive shall
+never exercise the legislative and judicial powers or either of them;
+the judicial shall never exercise the legislative and executive powers
+or either of them." To this provision were appended, as the reason for
+it, the memorable words, "To the end that it may be a government of
+laws and not of men."
+
+From 1776 to the present century as new states were formed their
+people in most instances have adopted similar provisions. Perhaps the
+people of Maine when they separated from Massachusetts in 1820
+adopted the most stringent provision by prohibiting not only the
+departments but all the persons in either department from exercising
+any of the powers properly belonging to either of the other
+departments.
+
+Of course some exceptions to the rule are necessary and these are
+usually named in the constitution itself. Again the dividing line
+between the powers cannot always be precisely defined and, further,
+each department in the performance of its own proper functions may
+sometimes be obliged to exercise a power strictly pertaining to
+another department. All that the maxim requires is that the three
+powers should be kept as distinct and separate as possible and have
+the government still go on.
+
+It is true we should not fear to question the wisdom of our fathers,
+but conclusions they have arrived at in matters of government after
+long study, observation, and actual experience should not be
+disregarded unless their error can be clearly demonstrated.
+
+
+
+
+CHAPTER VI
+
+THE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE POWERS OF THE
+GOVERNMENT. BILLS OF RIGHTS
+
+
+It should be evident that the division and distribution of
+governmental powers among different depositaries will not alone
+prevent encroachments by the governing power upon the liberty of the
+subject. The executive department in performing only executive
+functions can, in the absence of other checks, act oppressively. The
+legislative department, especially, without exceeding the legislative
+function, can in many ways and in excessive degrees oppress the
+individual by unnecessary restrictions of personal liberty, by
+unnecessary exactions, by arbitrary discriminations. The theory of
+representative government is that the legislature will be a body of
+men who will regard themselves as entrusted with important powers to
+be exercised deliberately and wisely for the welfare of the whole
+commonwealth and not for any one or more classes or interests,--who
+will regard themselves not as mere delegates or proxies, but as
+representatives, like the directors of a corporation, to form and act
+upon their own judgment after investigation and reflection. Experience
+has shown, however, that members of the legislature do not always nor
+generally act upon that theory. They seem to be inoculated with the
+bacillus of irrepressible activity, the desire continually to be
+proposing new laws, new restrictions, new exactions. If the laws
+enacted prove difficult of enforcement by reason of their interference
+with what individuals feel to be their rights, then new and oppressive
+methods of enforcement are devised, still further restricting liberty
+and equality. I have seen it stated that in the first ten days of the
+session of the Massachusetts legislature this present year over a
+thousand laws were proposed. Further, the members of the legislature
+are beset by constituents and others to favor legislative measures for
+their own special benefit, or that of their association, or of their
+locality. One result is that during every legislative session the
+ordinary citizen is dreading oppressive legislation and feels relieved
+when the session is over.
+
+When we consider the wide, almost unlimited range of the legislative
+function, and the power and tendency of legislatures to push that
+function to the extreme, it would seem that some check should be put
+upon the legislature to prevent its enacting discriminatory laws or
+otherwise depriving the individual of some accustomed and cherished
+freedom of action. If it be said that public opinion is sufficient
+restraint, the answer is that in a democracy, or in a republic with
+universal suffrage, the efficient public opinion is practically that
+of the majority of the electorate, and it is an acknowledged truism
+that the unrestrained majority is even more likely than the few to be
+oppressive of the individual. The opinion of the many is more
+variable than that of the few, more likely to be swayed by sympathy,
+prejudice, and other emotions. Indeed, public opinion sometimes
+induces legislatures to enact laws which they themselves feel to be
+unwise and tyrannical.
+
+If history and reason show that the happiness of the people as a whole
+requires certain individual liberties and rights to be left
+undisturbed and that the safety of the people as a whole does not
+require the contrary, then in order to secure justice those possessing
+the powers of government should be restrained from any acts infringing
+those liberties and rights; for, as already stated, justice consists
+in the equilibrium between restrictions necessary for the welfare of
+the whole people without discrimination, and the freedom of the
+individual to serve his own welfare.
+
+I think there are such liberties and rights. The subjects of King John
+in the 13th century thought so and compelled the king to guarantee by
+the Magna Charta that certain specified rights and liberties should
+not be infringed. Again, the subjects of Charles I in the 17th century
+had a similar conviction and expressed it in the Petition of Right,
+which named some liberties and rights not to be infringed. The king
+assented to that much limitation of the royal power. In the same
+century, upon the accession of William and Mary, a Bill of Rights was
+framed and enacted into law by King and Parliament, naming liberties
+and rights of the subject which ought not to be abridged. Succeeding
+Kings and Parliaments seem to have respected the provisions of this
+Bill of Rights in their legislation for British subjects. Had they
+conceded the claim of the people of the American Colonies that they
+also were protected by its provisions, the course of our political
+history might have been different. As it was, however, the British
+government practically held that neither Magna Charta, the Petition of
+Right, nor the Bill of Rights restrained it in its dealings with the
+Colonies, and this in despite of the protests of some of its most
+eminent statesmen. The resolutions of the various Colonial
+legislatures and the formal Declaration of Independence recite many
+grievous instances of arbitrary action by the government in disregard
+of the doctrines of those charters.
+
+So bitter was their experience that, when the people of the various
+Colonies came to frame constitutions for "a government of the people,
+by the people, and for the people" independent of the British crown
+and all other external authority, they very generally insisted that
+even such a government should have its powers defined and limited,
+that some rights of the individual should be specified which the
+government should not infringe nor have the lawful power to infringe.
+From their own experience the people were convinced that such
+definitions and limitations were necessary for the security of the
+individual even under a popular government.
+
+The first step of the representatives of the people of Virginia toward
+a declaration of independence of the British crown, and the setting up
+an independent government, was the adoption of a declaration of rights
+in the individual which no government should infringe. This was
+adopted and promulgated sometime before the constitution proper was
+framed. The statement was declared to be necessary in order that the
+government might be "effectually secured against maladministration."
+Similar limitations upon the powers of the government were imposed in
+the early constitutions of Massachusetts, New Hampshire, New Jersey,
+Delaware, Pennsylvania, Maryland, North Carolina, and South Carolina;
+also in the first constitution of Connecticut in 1818, and in the
+first constitution of Rhode Island in 1842. The people of New Jersey
+in 1844 made the limitations more definite, and the people of Maryland
+imposed additional limitations in 1864. The people of New York did not
+in their first constitution of 1777 expressly in terms guarantee
+individual rights, but they impliedly did so by making the Declaration
+of Independence the preamble, and in their constitution of 1821 they
+incorporated an explicit statement of individual rights not to be
+infringed. The example of the original states in this respect has been
+followed by most of the subsequent states of the Union.
+
+In 1778 a convention chosen to draft a constitution for Massachusetts
+submitted a draft to the people, who rejected it by a large majority
+mainly because it did not contain a "Bill of Rights." To quote from
+Harry A. Cushing, a writer on the History of Commonwealth Government
+in Massachusetts, "No demand was more general than that for a Bill of
+Rights which should embody the best results of experience." In 1780 a
+second convention submitted another draft of a constitution containing
+the famous Massachusetts Declaration of Rights, and this the people
+adopted by a majority of more than two to one. The only objection
+urged against the Declaration of Rights was that it did not go far
+enough.
+
+In the convention that drafted the Federal Constitution it was
+strongly urged that a Bill of Rights should be incorporated in the
+draft, but it was deemed, by the majority at least, unnecessary and
+even dangerous to make a specific declaration of individual rights,
+inasmuch as the federal government contemplated was in its very nature
+limited to such powers as were expressly, or by necessary implication,
+conferred by the Constitution, and hence to specify certain things the
+government should not do might be construed as permitting it to do
+anything not so specified. This argument prevailed and the draft
+submitted to the states contained no Bill of Rights. Immediately,
+however, a storm of objections was raised against it because of the
+omission. Despite the arguments of Hamilton and Madison that a Bill of
+Rights was unnecessary, ratification was finally obtained only by a
+general assurance and understanding that a sufficient Bill of Rights
+should be added immediately upon the organization of the new
+government. The necessary amendments, therefore, were submitted at the
+first session of the new Congress and were unanimously adopted by the
+states. Other limitations have since been imposed, notably those in
+the XIVth amendment, assuring to every citizen equal consideration in
+legislation by the states.
+
+By the Federal Constitution as it now stands the citizen, in time of
+peace at least, is guaranteed, among other matters, the protection of
+the writ of habeas corpus; freedom from bills of attainder and ex post
+facto legislation; freedom of religious belief and worship; freedom of
+thought and its expression; freedom peacefully to assemble with others
+and petition for redress of grievances; freedom from unreasonable
+searches and seizure; the right not to be prosecuted for infamous
+crimes except first accused by a grand jury; the right in all criminal
+prosecutions to a speedy and public trial by an impartial jury, to be
+confronted with the witnesses against him and to have assistance of
+counsel; that he shall not be deprived of life, liberty, or property
+without due process of law; that his private property shall not be
+taken from him even for public use without just compensation; that the
+obligations accruing to him under lawful contracts shall not be
+impaired; that he shall not be denied the equal protection of the
+laws. The guarantees in the state constitutions are generally of the
+same nature.
+
+It is difficult to see how any of these guaranties, or such other
+guaranties as may be contained in the federal and state constitutions,
+prevent legislative or executive action necessary for the welfare of
+the people generally. There is certainly an ample field for such
+action without overstepping these boundaries. Nevertheless, it is
+today urged by some impulsive persons, eager to impose their theories
+on the people at once, that all or many of these limitations upon the
+powers of government should be removed or disregarded and the majority
+of the people allowed unrestricted sway in all matters of
+governmental action. Others who do not go so far, yet urge that the
+majority should be free to suspend these guaranties temporarily or in
+some particular classes of cases. Against this opinion I submit that
+after so many centuries of experience of the tendency of all
+governments to enlarge their powers over the subject, and of struggles
+to limit the powers of government over private rights and to protect
+the individual from governmental oppression, the burden of evidence
+and of argument is heavily on those who would now advocate unlimited
+powers even for the most democratic government. A government directly
+by the people is of course in practice a government by a shifting and
+often narrow majority of the people. It is not yet demonstrated by
+experience or reason that such a government, unlimited, would be as
+regardful of individual rights or welfare as a republican form of
+government with its checks and balances and constitutional
+restrictions. The excesses of the unlimited democracies of ancient
+Greece and of the unrestrained democracy of France during and after
+the revolution of 1789 and the lynchings in this country do not
+contribute to such demonstration.
+
+It is not those who defend our present form of government with its
+constitutional guaranties, who resist political action tending to
+weaken them, that should be called unprogressive, undemocratic, or
+wanting in love of country. Those of our ancestors, English and
+American, who fought for these guaranties, who obtained them only
+after years of strife, who incorporated them in our federal and state
+constitutions and safeguarded them against the varying impulses of the
+populace, were not unpatriotic nor unmindful of the welfare of the
+people,--were not indifferent to human liberties or human rights.
+Neither are they such who today strive to preserve those guaranties
+won at such expense of blood and treasure. On the contrary, it is
+those who would override these guaranties and revert to the old days
+of unlimited governmental power, that are the reactionaries.
+
+It may be admitted that some of these limitations if enforced do now
+and then impede and even prevent some governmental action desired by
+some group or section of the people, but while action in violation of
+these limitations might benefit its sponsors it would necessarily be
+at the expense of others. Those who seek such legislation against
+others would quickly appeal to these limitations if legislation were
+directed against themselves. The noisiest declaimers against these
+guaranties fall back for protection upon the constitutional guaranty
+of freedom of speech. So long as these barriers are maintained every
+individual, no matter how poor and feeble, will be, theoretically at
+least, secure in some rights against the attacks of the many. Without
+such barriers every individual is at the mercy of an inconstant
+majority. Without such barriers justice cannot be said to be secured.
+Lord Treasurer Burleigh of Queen Elizabeth's time declared that
+England could never be ruined by its kings, but only by its
+Parliament. If the safeguards of the federal and state constitutions
+are maintained, neither Congress nor the state legislatures can ruin
+America. If the American people should ever consent to the removal of
+these safeguards they would give evidence of their want of
+self-restraint, of their unwillingness and even incapacity to govern
+themselves, and would pave the way for the man on horseback as the
+French Revolution paved the way for Napoleon. To deprive a single one
+of his rightful liberty is to endanger the liberties of all.
+
+
+
+
+CHAPTER VII
+
+THE INTERPRETATION AND ENFORCEMENT OF CONSTITUTIONAL LIMITATIONS
+NECESSARILY A FUNCTION OF THE JUDICIARY
+
+
+Under our federal and state form of government the question naturally
+arises where should be lodged the power to determine whether in a
+given instance either department has encroached on the proper field of
+any other department, and whether either department has encroached on
+the constitutional rights of the individual citizen. It should be
+evident that neither the executive nor the legislative department is a
+fit depositary of such power. Both these, from the nature of their
+powers, are aggressive. They act of their own volition. They initiate
+proceedings and measures to carry out policies. In their activities
+they are apt, consciously or unconsciously, to overstep the boundary
+lines between the departments and also the limits set for the
+protection of the citizen against such activities. Again, questions
+may and often do arise between the government and the individual
+citizen that are not political questions, but are questions of private
+right, the right of the individual against the government. The
+disputants are the individual citizen or group of citizens on the one
+hand, and the government on the other whether that government be a
+monarchy, a republican or representative government, or a pure
+democracy. In such case it would seem clear that one party should not
+have the power to decide the question. It is an axiom that neither
+party to a controversy should be the judge in the matter. The
+legislature that enacts a statute claimed by a citizen to be beyond
+its powers and to deprive him of some right guaranteed to him by the
+constitution, should not be the judge of the question any more than
+should the complaining citizen. So the executive should not be the
+judge where a citizen claims it has exceeded its powers to the
+detriment of his constitutional or statutory rights. Even if a statute
+be enacted or ratified by the people directly, under the modern
+initiative and referendum, and a citizen claims that the statute
+deprives him of some right guaranteed by the constitution, the people
+should not be the judge; much less should a majority. If the
+individual is left to be the judge of his constitutional or legal
+right as against the government, the result would be anarchy. If the
+government, even the most popular government, is to be the judge, the
+result would often be tyranny. There would be occasions, as there have
+been, when an excited people or majority would tyrannize over the
+individual, indeed over the minority. To secure alike the people
+against anarchy and the individual against tyranny, power must
+be vested in some impartial, independent arbiter to determine
+authoritatively and finally the relative rights and duties of each
+under the constitution.
+
+The proper department to be made the depositary of this important
+power would seem to be the judicial. That department does not
+initiate, has no policies, does not act of its own volition, but acts
+only when its action is regularly invoked in some controversy and then
+only to end that controversy. It may seem unnecessary even to state,
+much less defend, the proposition, but as its logical result is that
+the judiciary when invoked by the individual must refuse effect, so
+far as he is concerned, to a legislative act which deprives him of
+some right guaranteed by the constitution, and must thus disappoint
+those who procured the passage of the act, the proposition has been,
+is still being, denied. The action of the courts in exercising that
+power has been and is even now denounced as usurpation. Though the
+proposition is now long established, these attacks justify some
+repetition of the argument in its support. The logic of Chief Justice
+Marshall in _Marbury_ v. _Madison_, 1 _Cranch_ 137 _at p. 176_, seems
+to me irresistible and worthy of frequent quotation despite the
+attacks upon it. The Chief Justice said: "This original and supreme
+will (of a people) organizes the government and assigns to different
+departments their respective powers. It may either stop here,
+or establish certain limits not to be transcended by those
+departments.... The government of the United States is of the latter
+description. The powers of the legislature are defined and limited;
+and that those limits may not be mistaken or forgotten, the
+Constitution is written. To what purpose are powers limited and to
+what purpose is that limitation committed to writing if these limits
+may at any time be passed by those intended to be restrained? The
+distinction between a government with limited and unlimited powers is
+abolished if those limits do not confine the persons on whom they are
+imposed, and if acts prohibited and acts allowed are of equal
+obligation. It is a proposition too plain to be contested, either that
+the Constitution controls any legislative act repugnant to it, or that
+the legislature may alter the Constitution by an ordinary act.
+Between these alternatives there is no middle ground. The Constitution
+is either a superior, paramount law unchangeable by ordinary means, or
+it is on a level with ordinary legislative acts, and, like other acts,
+is alterable when the legislature shall please to alter it....
+Certainly all those who have framed written constitutions contemplate
+them as forming the fundamental and paramount law of the nation, and
+consequently the theory of every such government must be that an act
+of the legislature repugnant to the Constitution is void."
+
+In 1825 that eminent jurist, Chief Justice Gibson of Pennsylvania, in
+a dissenting opinion in _Eakin_ v. _Raub_, 12 _S. & R._ 330, insisted
+in an able, elaborate, and exhaustive argument that while the
+judiciary was bound to refuse effect to a state statute in conflict
+with the Federal Constitution, it was bound to give it effect if
+repugnant only to the state constitution. He frankly admitted the
+logical conclusion that in such case the only remedy the citizen had
+to enforce his constitutional rights was that of revolution. When,
+however, his opinion in _Eakin_ v. _Raub_ was cited in 1845 in
+argument in _Norris_ v. _Clymer_, 2 _Pa. St._ 277, he said he had
+changed his opinion on that question, partly "from experience of
+the necessity of the case." In the later case, _De Chastellux_ v.
+_Fairchild_, 15 _Pa. St._ 18, he was emphatic in his declaration of
+the power and duty of the court to refuse effect to a state statute in
+conflict with the state constitution. In delivering the opinion of the
+court he used this vigorous language: "It is idle to say the authority
+of each branch (of the government) is defined and limited in the
+constitution, if there be not an independent power able and willing to
+enforce the limitations.... From its very position it is apparent that
+the conservative power is lodged with the judiciary, which in the
+exercise of its undoubted right is bound to meet every emergency."
+
+The results of the contrary doctrine are well stated by the same court
+in _Perkins_ v. _Philadelphia_, 156 _Pa. St._ 554. "If laws in
+conflict with the constitution be passed by the legislature, approved
+by the governor and sustained by the court, that is revolution. It is
+no less revolution because accomplished without great violence. It
+matters little to the house owner whether the structure built to
+shelter him be blown up by dynamite, or the foundation be pried out
+stone by stone with a crowbar. In either case he is houseless."
+
+One desirable result of this doctrine that the courts when regularly
+invoked can and should refuse effect to an unconstitutional statute is
+that it ensures to every person, not in the military or naval service,
+the right to test in the judicial courts the authority of any official
+to interfere with his person, liberty, or property, whatever
+authority, executive or legislative, the official may plead. In France
+and other countries of continental Europe questions of the existence
+and extent of the authority of an official in his action against
+individuals are triable, at least at the pleasure of the executive,
+only in administrative tribunals, that is, courts pertaining to the
+executive department and instituted to assist that department in the
+performance of its functions. The aggrieved individual can only apply
+to the superiors of the official complained of. Such tribunals
+naturally incline to uphold the authority claimed, and indeed can
+lawfully allow the plea that the act complained of was ordered in
+pursuance of some executive policy. A recent instance is that unhappy
+affair at Zabern in Alsace where an army officer in time of peace
+wantonly struck and wounded a peaceful crippled citizen with his
+sabre. The victim could only appeal to the officer's military
+superiors, who acquitted the offender on the ground that the dignity
+of the military must be protected. In the United Kingdom, while at
+present, as for centuries, the individual can appeal to the judicial
+courts against officials acting under any executive or legislative
+orders, Parliament, and even a majority of the House of Commons, can
+at any time deprive him of that right. In this country the executive
+and legislative departments combined have no such power. So long as
+our present system is maintained, questions between government
+officials and individuals must remain cognizable by the judicial
+courts where the private citizen is on a par with the highest
+official, and the single individual is on a par with the government
+itself. In contrast to the Zabern affair we may note that the striking
+copper miners of Michigan were not obliged to apply to higher military
+officials for redress of wrongs claimed to have been inflicted upon
+them by the military. They were free to apply, and did apply, to
+tribunals outside of and independent of the executive. They and such
+as they should be the most unwilling to degrade the courts or lessen
+their power. A similar instance is that of the striking miners in
+Colorado who so loudly complained of the acts of the militia. They
+were not obliged to appeal to military or executive officers for
+redress. The Judicial Courts were as open to them as to any others and
+there they would be upon an equality with the officials.
+
+
+
+
+CHAPTER VIII
+
+AN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR JUSTICE
+
+
+For the judiciary to be in fact, as well as in theory, the protector
+of the constitutional rights of the individual against the government,
+and of the legal rights of the individual against the aggressions of
+others, it should be made so far as possible free, impartial and
+independent. The judges should have such security of tenure, and such
+security and liberality of maintenance, that they will have no
+occasion nor disposition to court the favor, or fear the disfavor, of
+any individual or class however powerful or numerous, not even the
+government itself. They should be made free to consider only what is
+the truth as to the existing law or fact in question, uninfluenced by
+any suggestions of what is demanded by prince, people, or individual,
+or by any suggestion of consequent good or evil to themselves. This
+proposition to my mind is so self-evident that quotations from eminent
+philosophers cannot strengthen it.
+
+The necessity of some independent tribunal between the governors and
+the governed was recognized in republican Rome, where it was provided
+that the persons of the tribunes should be inviolate, an immunity not
+granted to any other officials. The medieval cities of Italy
+frequently selected their judges from some other city that they might
+be free from any connection with different local factions or
+interests. When, however, the empire supplanted the republic in Rome,
+and the free cities of Italy were made subject to despotic domination,
+the independence of these tribunals was lost. History shows that those
+possessing the governmental power have always been unwilling to
+maintain an independent judiciary. The only countries today possessing
+a judiciary with any considerable degree of independence are the
+United Kingdom and some of its "Dominions beyond the seas" and our
+own country. The need of it was seen in the experience of the people
+of England and of the English Colonies in America under a judiciary
+liable to be deprived of office or salary if its opinions were
+displeasing to the crown.
+
+Charles I assented to the Petition of Right and promised to observe
+it, but no provision was made for any tribunal independent of the king
+to determine whether his acts were in violation of any article of the
+Petition. Consequently, when afterward in the matter of the tonnage
+and poundage tax Parliament remonstrated against the imposition of the
+tax as a violation of the royal promise in assenting to the Petition
+of Right, the king abruptly ended the session and in his speech of
+prorogation denied the right of Parliament to interpret the Petition
+and asserted that it was for him alone to determine "the true intent
+thereof." Again, the legality of the imposition by the king of the
+"ship money" tax without the consent of Parliament was hopelessly
+questioned. The king procured from the judges an opinion that he could
+lawfully impose such a tax without awaiting the assent of Parliament,
+when necessary for the defense of the kingdom, and that he was the
+judge of the necessity and proper amount of the tax. But this was not
+the opinion of an independent judiciary. The judges at that time could
+be promoted, removed, or "recalled" at any time at the king's sole
+pleasure, and they well knew the king's obstinate insistence in the
+matter. Their opinion simply gave expression to the king's will, and
+hence inspired no respect.
+
+Finally, for want of an independent tribunal empowered to determine
+authoritatively between king and subject "the true intent" of the
+Petition of Right, the legal extent and limitation of the royal power,
+the lawfulness of its exercise upon the subject in a given case, the
+issues between them had to be submitted to the arbitrament of civil
+war, with the result that the monarchical system of government was
+overthrown. Its successor, an unchecked parliament, was no less
+arbitrary in many of its acts, and was in turn overthrown and the
+monarchy restored. The restored dynasty, however, obeying the impulse
+of all possessors of governmental powers, soon began again to claim
+and exercise autocratic power, to encroach upon the rights and
+liberties thought to have been secured to the subject by the royal
+assent to the Petition of Right and vindicated by successful
+resistance, and also to suspend the operation of the laws at his
+pleasure. Unfortunately again there was as yet no impartial,
+independent tribunal in England to determine authoritatively the line
+between the royal power and the specified rights of the subject. The
+judges were still removable at the king's sole pleasure. James II did
+not hesitate to use this power to obtain such opinions and decisions
+as he desired. Preparatory to the trial of the Quo Warranto case
+against the City of London to procure the forfeiture of its charter,
+the king removed Chief Justice Pemberton and appointed in his place
+the servile Saunders who had drawn the writ in the case and had
+conducted all the proceedings in behalf of the crown as its counsel to
+the stage where the case was ready for argument in the Court of King's
+Bench. The case of the city was thereby made hopeless and the city
+itself helpless. In the case of the "Seven Bishops," prosecuted for
+libel in presenting to the king a petition for him to recall his order
+for the reading in the churches his Declaration of Indulgence, he
+seems to have felt tolerably sure of the court as it was already
+constituted. Two able and learned justices, however, Holloway and
+Powell, ventured the opinion that the petition was not libelous. They
+were both promptly "recalled."
+
+Again force had to be used to free the subject and maintain his
+"rights and liberties" against the sovereign. James II was driven from
+the country and William of Orange called to the throne. This time the
+people in settling the new government through parliamentary action
+went farther than before in the way of restraint upon the government
+and took the necessary step to secure their rights and liberties. In a
+new instrument, this time called a Declaration instead of a Petition,
+they reiterated the rights of the subject as twice before they had
+been formally asserted in the Magna Charta and the Petition of Right.
+This instrument, known as the Declaration of Rights of 1688, was
+presented to William and Mary, who solemnly engaged to observe and
+maintain its provisions. Further still (and this was the new and
+effective guaranty of the subject's rights), in the Act for the
+settlement of the crown it was enacted by king, lords, and commons
+that thereafter the judicial tenure of the judges of the courts should
+be during good behavior. Since that time for more than two centuries
+"the true intent" of the laws has been determined, not by king or
+parliament or people, but by a judiciary made strong and independent.
+There has been no need to resort to force to defend the legal rights
+of the subject.
+
+But this security for individual rights and liberties was not extended
+to British subjects in America. After the Colonies had so increased in
+population and wealth that they were deemed worth exploitation, the
+government, among other means of controlling them, took over the
+appointment of their judges, in many instances with a tenure during
+the government's pleasure only. In the circular letter of
+Massachusetts Bay Colony to the other Colonies in 1768 they are asked
+to consider whether for the judges of the land not to hold their
+commissions during good behavior and to have their salaries appointed
+for them by the crown did not have a tendency to "endanger the
+happiness and security of the subjects." One of the counts in the
+indictment of July 4, 1776, against the king's government was that it
+had made the colonial judges dependent on the king's will alone for
+the tenure of their offices and the amount and payment of their
+salaries.
+
+As a consequence of this experience with a judiciary dependent on the
+governing power for the tenure and maintenance of its judges, the
+Colonies when they set up independent governments of their own
+provided a fixed tenure for their judges in every instance but one.
+Connecticut in its first constitution made the tenure during good
+behavior, as did Delaware, Maryland, Massachusetts, New Hampshire,
+North Carolina, South Carolina, and Virginia. Pennsylvania at first
+fixed the tenure at seven years, but in 1790 changed it to good
+behavior. The same tenure was fixed for the federal judges in the
+Federal Constitution. In some instances also, further provision was
+made for the independence of the judges by forbidding the diminishing
+of their salaries during their term of office.
+
+The people of Massachusetts, which had been the most harried of the
+Colonies, declared emphatically the necessity for an independent
+judiciary. Article XXIX of the Massachusetts Declaration of Rights
+adopted in 1780 is as follows: "It is essential to the preservation
+of every individual, his life, liberty and property and character
+that there be an impartial interpretation of the laws, and
+administration of justice. It is the right of every citizen to be
+tried by judges as free, impartial and independent as the lot of
+humanity will admit. It is, therefore, not only the best policy but
+for the security of the rights of the people and of every citizen that
+the judges of the supreme judicial court should hold their offices so
+long as they behave themselves well; and that they should have
+honorable salaries ascertained and established by standing laws." New
+Hampshire, with a similar experience, adopted the same language in
+Art. XXXV of her Bill of Rights. The Maryland Declaration of Rights
+of 1776 contains this article: "Art. XXX. That the independency
+and uprightness of the judges are essential to the impartial
+administration of justice and a great security to the rights and
+liberties of the people; wherefore the chancellor and judges ought
+to hold commissions during good behavior."
+
+It is true that in most of the states the official tenure of the
+judges has since been reduced to a more or less brief term of years.
+This fact is only another instance of the tendency of the governing
+power to lower if not remove all barriers set up against it for the
+protection of the individual. Majorities as well as absolute kings
+like their own way. The change where made may have given majorities
+greater freedom to enforce their will upon individuals, but it has not
+increased confidence in the integrity of the judges nor made them more
+firm to ascertain and declare only the truth.
+
+It is true also that in most states now the people have taken to
+themselves directly the task of selecting men suitable for judges
+instead of entrusting that important duty to the governor or
+legislature, as was the practice in the early days of the republic.
+I cannot think this has tended to secure better judges, though it may
+have secured judges more subservient to majorities. Effectually to
+guard the constitutional and legal rights of all alike, the judges
+should possess what is called the legal mind and the judicial
+temperament. They should be able and learned that they may appreciate
+the real meaning, purpose, and scope of the constitution and statutes;
+calm and equable in temperament that they may not be influenced by
+sympathy, prejudice, or other emotions; strong and courageous in
+character that they may resist all pressure other than fair argument.
+To find the men possessing these qualities requires extensive and
+protracted inquiry and patient consideration, such as are not and
+cannot be exercised by the people directly. The task should be deputed
+in the first instance to the head of the state, the chief executive.
+He has the best means of ascertaining who possesses the requisite
+qualifications in the greatest degree. He would feel that he alone was
+responsible for a proper selection, and that feeling of responsibility
+would tend to make him deliberate and painstaking in his choice. On
+the other hand, if the original selection be entrusted to the
+legislature or left with the people acting directly, individual
+members would have a much lower sense of personal responsibility and
+the individual members of the electorate scarcely any at all. True, in
+those states where the judges are elected by the people directly,
+excellent judges are often and perhaps ordinarily chosen, but I think
+I state a truth in stating that upon the whole those courts composed
+of judges with a long tenure and appointed by the executive stand
+higher in public estimation and their opinions have greater weight.
+Such courts are certainly a greater protection to those guilty of no
+wrong, but who have been so unfortunate as to incur the displeasure of
+an excited community.
+
+Nevertheless, despite the lessons of history and the reasons contra,
+it is proposed in this twentieth century that the tenure of the judges
+shall again be during pleasure only,--this time during the pleasure of
+the majority of the electorate. The proposition is not stated so
+baldly by its proposers. They phrase it as the right of the people to
+remove or recall unsatisfactory public servants, whether judges, or
+governors, or other officials. They propose that at the request of a
+certain small percentage of the electorate, setting forth their
+dissatisfaction with a judge, he may be removed by a majority of the
+voters. As precedents for their proposal they point triumphantly to
+the provision of the British Act of Settlement that judges should be
+removable by the crown upon the request of both Houses of Parliament,
+and to similar provisions in many of our state constitutions.
+
+Of course, there should be lodged somewhere the power to remove judges
+proven to be unworthy of their high office, or incapable of performing
+its high duties, but it should be lodged in a body of men before whom
+the accused judge can appear in person or by counsel, hear the
+complaints and face the witnesses against him, and adduce evidence and
+argument in reply,--and who can on their part see the witnesses and
+hear the arguments before deciding. That was the opinion of the
+British Parliament in the few cases presented to them, and the state
+legislatures in this country have generally entertained the same
+opinion. It was also held by Parliament that the address for removal
+should state the reasons therefor. In 1855 Governor Gardner of
+Massachusetts declined to remove a judge of probate on address by the
+legislature because no sufficient grounds were stated in the address.
+He said that in every instance then on record full reasons for removal
+had accompanied the address.
+
+The constitutional provision for removal by address evidently was not
+designed to lessen the impartiality and independence of the judge by
+subjecting him to removal at the mere will of the executive and
+legislature, but that he might be removed for corruption, neglect of
+duty, incapacity, immorality, or other disgraceful conduct, after
+notice, hearing, and deliberation. For the executive and legislature,
+or even the majority of the people, to remove a judge because they do
+not like his opinions as to what the constitution requires or forbids
+them to do, would destroy the independence of the judges and thus
+deprive the citizen of all security for his rights and liberties under
+the constitution,--would be despotism.
+
+The principal argument for lessening the independence of the judges
+and making them more subservient to the inconstant majority seems to
+be that otherwise the judges will misuse their power and impede the
+operation of statutes they do not themselves approve of. The argument
+has little or no foundation in fact. Perhaps among the hundreds, if
+not thousands, of cases of holding a statute unconstitutional a few
+may seem to have been so decided because the judges thought them
+unwise and oppressive. Some expressions in judicial opinions have been
+unfortunate in that respect, but the courts everywhere in this
+country, now if not at first, disclaim any such power. The same Chief
+Justice Marshall, who had so convincingly stated the duty of the
+judiciary to refuse effect to unconstitutional statutes, later in
+_McCulloch_ v. _Maryland_, 4 _Wheat._ 316, disclaimed for the courts
+all pretensions to any power to inquire into the necessity of any
+statute, or in any way to interfere with the discretion of the
+legislature. In strong and explicit language other courts have
+disclaimed such pretensions. The Minnesota court in _State_ v.
+_Corbett_, 57 _Minn._ 345, held that courts were not at liberty to
+declare a statute unconstitutional because it is thought by them to be
+unjust or oppressive, or to violate some natural, social, or political
+right of the citizen, unless it can be shown that such injustice is
+prohibited, or such rights protected, by the constitution. The
+Pennsylvania court in _Com._ v. _Moir_, 199 _Pa. St._ 534, used this
+language: "Much of the argument and nearly all the specific objections
+advanced are to the wisdom and propriety and to the justice of the
+statute and the motives supposed to have inspired its passage. With
+these we have nothing to do. They are beyond our province and are
+considerations to be adduced solely to the legislature." The court of
+West Virginia in _Slack_ v. _Jacob_, 8 _W. Va._ 612, said: "That the
+judges are convinced that a statute is contrary to natural right,
+absolute justice, or sound morality does not authorize them to refuse
+it effect." The court of Washington in _Fishing Co._ v. _George_, 28
+_Wash._ 200, held that "a statute cannot be ignored by the courts
+because leading in its application to absurd, incongruous, or
+mischievous results." A few cases may also be cited showing how
+relentlessly this disclaimer is applied. The court of New York in
+_Kittinger_ v. _Buffalo Traction Co._, 160 _N. Y._ 377, held that the
+courts had no power to inquire into the motives inducing legislation
+and could not impute to the legislature any other than public motives.
+The Pennsylvania court in _Sunbury R.R. Co._ v. _People_, 33 _Pa. St._
+278, had urged upon it the argument that the statute in question had
+been "passed in fraud of the rights of the people." The court held
+that, if true, that fact would not authorize it to refuse it effect.
+The Tennessee court in _Lynn_ v. _Polk_, 76 _Tenn. St._ 121, was asked
+to declare a statute ineffective because its enactment was procured by
+bribing members of the legislature. The court held it could not do so.
+The Missouri court in _Slate_ v. _Clarke_, 54 _Mo._ 17, had before it
+a statute authorizing the licensing of bawdy houses and was urged to
+declare it unconstitutional because against public policy and
+destructive of good morals. The court held it had no such power. The
+Justices of the Maine Supreme Court in an opinion reported in 103
+_Maine_ 508 stated the principle as follows: "It is for the
+legislature to determine from time to time the occasion and what laws
+are necessary or expedient for the defense and benefit of the people;
+and however inconvenienced, restricted, or even damaged particular
+persons and corporations may be, such general laws are to be held
+valid unless there can be pointed out some provision in the State or
+United States Constitution which clearly prohibits them."
+
+Further, it is a maxim of the judiciary, from the beginning and now,
+that no statute should be refused effect unless clearly contrary to
+some provision of the constitution,--unless the conflict is evident
+beyond a reasonable doubt. This is a maxim, a canon of interpretation,
+that courts always have in mind and apply in considering the question
+of the constitutionality of a statute.
+
+Thus scrupulous are the courts to keep within their proper sphere, to
+respect the limits of their powers. If the legislatures would be
+equally scrupulous, would themselves refrain from infringing on those
+rights and liberties of the citizen guaranteed by the constitution,
+there would be less restriction, less friction, less turmoil, less
+need of the judicial check, less injustice.
+
+But the complaints against the courts are not all because of their
+holding statutes unconstitutional. Many have felt that courts
+sometimes erred in having too much respect for the legislative power
+and because of that respect have allowed constitutional rights and
+liberties to be sacrificed at the behest of majorities and often at
+the behest of active, interested minorities more insistent than the
+inert majority. The decision of the United States Supreme Court in the
+_Charles River Bridge_ case, 11 _Peters_ 420, was mourned by such men
+as Webster, Kent, Story, and others as breaking down the safeguards of
+the constitution. The decision in the _Slaughter House_ cases was
+regarded by many able jurists as ignoring that provision of the XIVth
+amendment to the Federal Constitution forbidding any denial to any one
+of the equal protection of the laws. The _Elevator_ cases, holding
+that elevators were public utilities and therefore subject to public
+control as to charges for service, though the owners had no special
+franchise, no part of public power, are even now thought to have made
+a wide breach in the constitutional barriers against the invasion of
+private rights. The decision in the _Chinese Deportation_ cases, 149
+U. S. 698, shocked the sense of justice of many. It was to the effect
+that Congress could empower the executive to arrest upon its own
+warrant any person it claimed to be an alien unlawfully residing in
+the United States and to deport him without trial, unless he could
+affirmatively prove to the satisfaction of a single judge (to be
+selected by the executive), and by a specified kind of evidence only,
+that he was not guilty, however ample and probative other evidence
+might be adduced and however impossible to produce the specified
+evidence. Justices Fuller, Field, and Brewer vigorously dissented on
+the ground that such action by the executive, though under the
+authority of Congress, was in violation of the constitutional
+guaranties against arrest without judicial warrant, against
+deprivation of liberty without trial by jury and due process of law.
+
+Justice Brewer after quoting Madison, that banishment is among the
+severest of punishments, went on to say: "But punishment implies a
+trial. 'No person shall be deprived of life, liberty or property
+without due process of law.' Due process of law requires that a man
+be heard before he is condemned, and both heard and condemned in the
+due and orderly procedure as recognized by the common law from time
+immemorial."
+
+In my research I have found more cases where it has seemed to me the
+courts have construed constitutional guaranties too strictly, than
+where they have construed them too liberally. The tendency has been
+rather away from the enforcement of constitutional guaranties and to
+allow legislative encroachments upon them. I regard this as a very
+dangerous tendency. Perhaps the encroachments have not been at first
+perceived, but I think courts should be vigilantly on the watch for
+them, otherwise individual rights guaranteed to the people by the
+constitution may be gradually weakened and finally destroyed. This
+duty of the courts was declared in the case of _Boyd_ v. _United
+States_, 116 _U. S._ 616 at page 641--where in refusing effect to a
+statute requiring the production of his books and papers by a
+defendant in proceedings for forfeiture, the court said: "Though the
+proceeding in question is devested of the aggravating effects of
+actual search and seizure, yet it contains their substance and
+essence, and effects their substantial purpose. It may be that it is
+the obnoxious thing in its mildest and least repulsive form; but
+illegitimate and unconstitutional practices get their first footing in
+that way, namely, by silent approaches and slight deviations from
+legal modes of procedure. This can only be obviated by adhering to the
+rule that constitutional provisions for the security of person and
+property should be liberally construed. A close and literal
+construction deprives them of half their efficacy and leads to gradual
+depreciation of the right as if it consisted more in sound than in
+substance. It is the duty of courts to be watchful for the
+constitutional rights of the citizen and against any stealthy
+encroachments thereon. Their motto should be _obsta principiis_."
+
+A review of the cases in which the courts have been called upon to
+decide whether a statute breaks over the constitutional limitation
+will demonstrate to any dispassionate person that upon questions of
+expediency, of the general welfare, or even of justice, the judges
+rarely if ever oppose their opinion to that of the legislators. The
+courts do not obstruct the current of progress; they only keep it from
+overflowing its banks to the devastation of the constitutional rights
+of the people.
+
+
+
+
+CHAPTER IX
+
+THE NECESSITY OF MAINTAINING UNDIMINISHED THE CONSTITUTIONAL
+LIMITATIONS AND THE POWER OF THE COURTS TO ENFORCE THEM.--CONCLUSION
+
+
+Despite the lessons of history showing the need of specified
+limitations upon the legislative power to ensure personal liberty and
+justice, it is still urged by the impatient that this check upon
+legislative action should be removed, or at least that the legislature
+should itself be the judge of the constitutionality of its acts, and
+that the legislatures as the representatives of the people may be
+trusted to observe constitutional requirements and limitations. From
+the beginning, however, the people of this country have not fully
+trusted their legislatures. They have not only set bounds to
+legislative power, but within those bounds they have imposed in most
+instances the check of an executive veto. They have also complained of
+their legislatures far more loudly than they have of their courts, and
+latterly have subjected them to the initiative and referendum and in
+some instances to the recall.
+
+Perhaps the judgment of those urging that the legislature should be
+trusted not to trespass on the constitutional rights of the people may
+be enlightened by recalling some instances of legislative action upon
+constitutional questions left to its decision by the constitution
+itself. It is hardly necessary to cite instances of the abuse of this
+power in the matter of determining who are entitled to seats in the
+legislature. It is common knowledge that, in the past at least, both
+law and fact have often been over-ridden for partisan advantage. As an
+illustration of how far a legislature will sometimes go in this
+direction I may cite a recent instance in Maine. The constitution of
+that state provides (Art. IV, Pt. 3, Sec. 11) that "no person holding
+any office under the United States (post officers excepted) shall
+have a seat in either house of the legislature during his continuing
+in such office." This provision was in the original constitution of
+1821, and until the legislative session of 1913 the exception of "post
+officers" was understood to refer to officers in the postal service
+and such officers often held seats in the legislature without
+question. In 1913, however, the House of Representatives held for
+awhile that the exception referred only to military officers of the
+United States stationed at military posts within the state, though no
+such officer had ever held a seat in the legislature.
+
+That legislatures are prone to disregard constitutional provisions is
+also manifest in the vast amount of special legislation enacted
+despite constitutional prohibitions of such legislation. There are
+also numerous instances where legislatures while perfunctorily heeding
+the letter of the constitution consciously violate its spirit and
+evade its requirements. In many states there is a constitutional
+provision that no legislative act shall become effective until after
+a specified time has elapsed from its enactment "except in cases of
+emergency," which emergency, however, is to be declared in the act
+itself. This provision, of course, is to give the people time to
+understand the statute and prepare to obey it. The word "emergency" in
+the exception implies a sudden, unexpected happening. It is defined in
+Webster as a "pressing necessity; an unforeseen occurrence or
+combination of circumstances which calls for immediate action or
+remedy." In Indiana in one legislative session, out of 200 acts, 155
+were made to take effect at once by a recital that an emergency
+existed therefor. In Illinois a two-thirds vote of all the members
+elected to each house is required for the adoption of the emergency
+clause. Among the acts of the last session containing the emergency
+clause was one appropriating $600 for printing the report of a
+monument association. In Tennessee the exception was of cases where
+"the public welfare" required an earlier date. Out of 265 laws passed
+at one session 230 contained the declaration that the public welfare
+required their going into effect immediately. In Texas the
+constitution provides that no bill shall be passed until it has been
+read on three several days in each house and free discussion allowed
+thereon, but that "in cases of imperative public necessity four-fifths
+of the house may suspend the rule." Out of 118 laws passed at one
+session all but five contained the statement that "imperative public
+necessity" required suspension of the rule.
+
+Legislatures also seem prone to disregard the constitutional provision
+for the referendum despite the strong, explicit language of that
+provision. In California the constitutional provision is as follows:
+"No act shall go into effect until ninety days after the adjournment
+of the legislature which passed such act ... except urgency measures
+necessary for the immediate preservation of the public peace, health
+or safety, passed by a two-thirds vote of all the members elected to
+each house." Surely the language of the exception is strong and
+forceful. Two-thirds of all the members elected to each house must
+hold that the measure is urgent, not admitting of delay, that the
+public peace, health or safety, not the mere interests or convenience
+of individuals or localities, is threatened and that the danger is
+imminent, requiring immediate action. Among other instances, the
+legislature of California at its special session of 1911 adjudged an
+act to validate certain defective registrations of voters in some
+municipalities to be an urgency measure within the language of the
+exception; also an act to change the boundaries in a Reclamation
+District. Oregon has a similar constitutional requirement and
+exception which its legislature does not always observe. At the
+session of 1911, among other cases the legislature adjudged an act
+authorizing a county to levy a tax for advertising the county's
+resources to be within the exception; also an act dividing a road
+district; but an act appropriating money to guard against the bubonic
+plague was not declared to be within the exception. In Oklahoma with a
+similar constitutional provision and exception, the legislature seems
+to have run riot. At the session of 1910 a very large proportion, if
+not a majority, of the statutes were adjudged to be within the
+exception. Among them was an act to pay the mileage and per diem of
+the members; an act providing stenographers for the Supreme Court; an
+act authorizing the sale of four tracts of land at public sale; an act
+to pay J. J. O'Rourke $238.10 for room rent. On the other hand, an act
+to reimburse the Governor $5000 expended by him for state purposes,
+and an act to reimburse a sheriff $4000 expended by him in the support
+of state prisoners were not so considered.
+
+True, Oklahoma is a new and radical state, but let us turn to the
+extreme east, to Maine with its heritage of law-abiding traditions
+from the parent state of Massachusetts. Maine has also adopted the
+referendum in language similar to that in the California
+constitution, including the exception. The state had got along quite
+comfortably without making Lincoln's birthday a legal holiday, but in
+1909 the legislature awoke to the imminent danger to the public peace,
+health or safety of the state in longer delay and so established such
+a holiday at once without according to the people their right of
+review. The town of Eden, in which is situated Bar Harbor, a summer
+resort, had by vote for sometime excluded automobiles without any
+apparent danger to the public peace, health or safety, but at its last
+session in 1913 the legislature by a two-thirds vote of all the
+members elected to each house adjudged that the public peace, health
+or safety would be imperiled by postponing for ninety days the
+operation of an act authorizing a repeal of the vote.
+
+In all the instances cited, which are but few out of many, it is
+difficult to see how the ninety days' postponement of the operation
+of the acts cited could imperil the peace, health or safety of the
+public, however much it might inconvenience or annoy individuals or
+localities. These instances should, however, throw considerable doubt
+upon the proposition that the constitutional rights of the people are
+safe in the hands of the legislative department without the check of
+the judiciary. I have somewhere seen the statement that during recent
+years upwards of 500 acts of federal and state legislation have been
+held by the courts to be in violation of some constitutional
+provision, and that this fact should arouse the people to put some
+check on such exercise of the judicial power. On the contrary, it
+should arouse the people to insist on the retention of that power, and
+to elect wiser legislators who will more faithfully respect their
+oaths to observe constitutional limitations.
+
+But another and different proposition is urged upon us. It is not to
+leave the legislature without check upon the tendency to disregard
+constitutional limitations upon its power, but to subject the judicial
+check itself to reversal by a majority of that part of the electorate
+choosing to act on the matter. It is proposed that whenever a court of
+last resort shall adjudge that a statute trespasses upon the reserved
+constitutional rights of the individual, an appeal may be taken direct
+to the electorate, and that if a majority of those choosing to vote on
+the question desire the statute to stand, the constitution shall
+thereafter be held to be amended to that extent. It is submitted that
+such a procedure would destroy all constitutional guaranties, no
+matter what safeguards are attempted. Is there any assurance that such
+a majority would be more considerate of the individual's right to
+life, liberty, and property than their representatives whom they have
+selected or should have selected for their virtue and wisdom, and who
+are sworn, as well as the judges, to respect constitutional
+guaranties?
+
+Under the present procedure for amendment to constitutions,
+propositions for amendment are first considered and debated face to
+face in a legislature or constitutional convention by representatives
+of the people, and cannot be submitted to the people until after
+opportunity for full and free discussion by their representatives, and
+the people themselves have thereby been more or less prepared for its
+consideration. Even under this procedure, amendments have been adopted
+that the people have afterward regretted. There is now much agitation
+for the "short ballot," for restoring to the chief executive the power
+of appointment of important officials, a power at first possessed by
+him, but taken away by later constitutional amendments. The adoption
+of the "initiative and referendum" has not produced the beneficial
+results expected. It is found that the initiative sometimes produces
+defective, unworkable statutes, and that the referendum can be used to
+delay and even veto expedient legislation.
+
+Under the proposed procedure the questions whether the constitution
+should be amended and as to the nature of the amendment are sprung
+upon the people without this preliminary examination, debate and
+approval by their chosen representatives, and this often, if not
+always, in times of popular excitement. With such a procedure I can
+see no more stability of right, no more security for justice, than
+under any unlimited, absolute government.
+
+How unstable popular sentiment may be at times may be seen in the
+classic example of the citizens of Rome applauding Marius and Sulla in
+turn with equal fervor, and in the lesser and very recent example of
+the voters of the city of Seattle, who elected a mayor, then soon
+recalled him, and but little later re-elected him by a larger majority
+than before. Constitutions to be of any value as bulwarks of liberty
+should not be immediately changeable with the popular sentiment of the
+day, but slowly and only after long reflection and discussion. They
+should contain only the results of long thought and long experience.
+
+Legislation is ever active, ever moving this way and that way, ever
+experimenting, enacting new statutes and amending and repealing old
+ones, now imposing fetters on individual liberty, now striking them
+off and perhaps imposing others. Even in England and America, where
+personal liberty of action is most prized, time was when statutes were
+enacted almost putting people and business in strait-jackets. In
+English Norfolk as late as Henry VIII's time no one was to "dye, shear
+or calender" cloth except in the town of Norwich; and no one in the
+northern counties was to make "worsted coverlets" except in the city
+of York. In the reign of Elizabeth a statute was passed forbidding the
+eating of meat on Wednesday and Saturdays and this not on the score of
+health or religion but avowedly to increase the price of fish.
+Statutes fixing the weight and price of loaves of bread and the size
+and price of a glass of ale were not formally repealed till 1824. The
+famous Statute of Laborers forbade laboring men to ask or receive more
+than a prescribed low sum for their labor and also forbade their
+moving about seeking employment. The statutes against forestalling,
+regrating, and engrossing were not formally repealed until 1844. In
+early times in New England also, statutory attempts were made to fix
+the price of various commodities and the wages of various kinds of
+workmen. Men were fined for accepting higher than the prescribed
+wages. The Sunday laws in some places forbade walking about on Sunday
+except "reverently to go to and return from meeting." Everywhere was
+the ever present tendency of the legislative power to invade and
+direct every function of society,--social, religious, political, and
+economical. It should be noted that all these and similar statutes
+were under governments unrestrained by written constitutions and bills
+of right enforced by an independent judiciary.
+
+Though from time to time many restrictive statutes have been modified
+and many repealed, other restrictive statutes have been enacted. Today
+the same process is going on. While now and then restrictions and
+embargoes of longer or shorter standing are removed, there is still
+the same tendency to enact other restrictions and prohibitions. At
+every session of Congress and of the state legislatures measures are
+constantly proposed hampering in some way the freedom of the citizen
+in his occupation, in his pursuit of happiness. Demands are being made
+upon the legislative department by one class or interest for
+legislation to restrain other classes or interests, but for exemption
+for itself. In earlier times there were statutes fixing a maximum wage
+for labor, and though these proved ineffectual it is now proposed to
+fix a minimum wage, even though it should prove to be much more than
+the labor is worth. There are also proposed, and in many instances
+enacted, statutes restricting the freedom of the workman as to his
+output, of the employer as to his direction of his business. The
+natural activities of men are sought to be hampered and handicapped in
+vexatious ways. In illustration, I quote the following from the
+"Boston Herald" of June 5, 1914:
+
+"Twenty-five states and the United States itself forbid any
+discrimination by an employer against union men. Utah alone has a law
+to protect the non-union men from organized discrimination of union
+labor to drive him from his trade. Several of our states require that
+all public printing shall bear the union label. One extends that rule
+to all stationery. Twelve states require employers advertising for
+help to mention in the advertisement the existence of a strike. The
+Minnesota statute provides that, per contra, no employer shall require
+any statement from a person seeking employment as to his participation
+in a strike. Eight states have enacted statutes exempting labor
+organizations from their respective anti-trust laws. The unscrupulous
+employer may yet find the labor union the best means of throttling his
+competitors and securing a monopoly." There seems at times to be a
+frenzy for such legislation. Only a vivid imagination can adequately
+picture what might result if Congress and the state legislatures, or
+the inconstant majority of the electorate, were freed from all
+constitutional limitations or from the check of an independent
+judiciary.
+
+Though Great Britain, our mother country, has no written constitution
+and no judiciary empowered to enforce its limitations, it is the happy
+possessor of a practically homogeneous people of the Anglo-Saxon race,
+little affected by immigration, and imbued for centuries with a deep
+regard for personal liberty and private rights. Yet, even there today,
+statutes are demanded and sometimes enacted in derogation of them. In
+this country the population as the result of great immigration is more
+heterogeneous. It comprises races and peoples of diverse temperaments,
+of diverse experiences, of diverse traditions, many unschooled in
+self-government and lacking in that traditional reverence for liberty
+and order so characteristic of the Teutonic races. We even find some
+classes openly declaring that if they can get possession of the
+government they will exploit the rest of the people for their own
+benefit. They essay also to bargain their votes for special
+legislation in their favor at the expense of the people at large and
+without regard to the principles of equality of right.
+
+With such a population with its universal suffrage, were it not for
+our written constitutions with their Bills of Rights and with an
+independent judiciary to guard them, there would be no security here
+for personal liberty and rights. We should be in the condition of the
+people of France as depicted by Wm. S. Lilly in his recent book, "The
+New France." He wrote: "It is now more than a century since the
+principles of 1789 were formulated there. But in no country, not even
+in Russia, is individual freedom less. The state is as ubiquitous and
+as autocratic as under the worst Bourbon or Oriental despots. Nowhere
+is its hand so heavy upon the subject in every department of human
+life. Nowhere is the negation of the value and of the rights of
+personal independence more absolute, more complete, and more
+effective." Yet France is a republic with manhood suffrage and with an
+elective legislature. But its courts are not vested with any power to
+conserve any rights of the people against legislative caprice.
+
+
+CONCLUSION
+
+The thesis I have endeavored to support in these lectures, so far as I
+have a thesis, is this: (1) that, after all, human justice consists in
+securing to each individual as much liberty of action in the exercise
+of his physical and mental powers and as much liberty to enjoy the
+fruits of such action as is consistent with like liberty for other
+individuals, and with such restrictions only as are necessary for the
+welfare of society as a whole without discrimination for or against
+any individual; and (2) that that justice is more firmly secured by
+a government with a division of powers, with a written constitution
+excluding from governmental interference such personal rights as
+long experience has shown to be necessary both for the happiness
+and efficiency of the individual subject and for the welfare and
+efficiency of all; and (3) finally with an independent judiciary to
+defend those rights when assailed, as they often have been, and will
+be, by impatient and changeable majorities.
+
+It may be admitted that the courts sometimes err in their
+interpretation of the constitution and the laws, since judges, however
+carefully selected, are but men; but there must be somewhere in the
+body politic of a free state some body of men with the power of
+authoritative interpretation of the fundamental law as well as other
+laws. Does earlier history or later experience point to any better
+equipped, more stable, more safe tribunal? Should not the people
+endeavor to raise rather than lower the position of the courts; to
+conserve rather than impair that freedom, impartiality, and
+independence of the judges declared by the people of Massachusetts in
+their Declaration of Rights, after years of galling experience of the
+contrary, to be "essential to the preservation of every individual,
+his life, liberty, property and character"? Are not they the
+reactionaries who, despite the lessons of history, would revert to
+the days of a dependent, recallable, and hence timid judiciary?
+
+But justice is not fully and certainly secured by the maintenance
+of particular political institutions, however excellent. Political
+institutions are not self-acting. They are only instrumentalities
+for the action of society. They are not only to be established and
+maintained; they are to be administered, and the best institutions may
+be maladministered. Even under such a system of government as I have
+endeavored to show to be the best yet devised to secure justice,
+injustice is still often suffered by the individual or by society.
+Oppressive statutes within the legislative power are too readily
+enacted. Abuses in administration are too long permitted to exist. The
+only remedy for these is a more enlightened public opinion, a wider
+diffusion of the spirit of impartiality, a greater realization of the
+right and need of every person to life, liberty, and the results of
+his industry and economy.
+
+Nor are the judgments of our courts always righteous. Some of the
+instances of unrighteous judgments result from failure to ascertain
+and apply the truth as to the facts of the case; some from errors in
+judgment; some from lack of firmness in judges in enforcing the known
+rights of the individual on the one hand, or those of society on the
+other; and perhaps a very few from incompetency or corruption. These
+causes can be removed to a large extent, by a more rigid insistence on
+skill, ability, industry, learning, and courage on the part of those
+assuming to administer justice as attorneys and counselors. The same
+insistence in the selection of judges will lessen the injustice
+resulting from their errors in judgment and from their lack of
+firmness.
+
+There is yet another cause of injustice, the delay and expense in
+obtaining even righteous judgments. It is an axiom, that justice
+delayed is justice denied. This delay and expense are often charged
+against the courts and judges, as if they had full control over
+judicial procedure. It is not the judges but the legislature that
+shapes the judicial system and prescribes the judicial procedure,
+so far as they are not fixed by the constitution.
+
+It is not the courts but the legislatures that provide for so many
+appeals and allow so many stays and consequent delays. Judges and
+lawyers the country over are urging a more simplified, a more speedy,
+and less expensive procedure. They are also urging the establishment
+of more courts with more judges to cope with the constantly increasing
+litigation, in order that the wrongs against the individual and the
+wrongs against society may be redressed with a minimum of delay and
+cost. It is the legislatures that hesitate and often it is the
+legislatures that tie the hands of the judges. In some states it is
+sought to deprive the judges of their proper influence in jury trials.
+In some states it is even sought to prevent them from saying more than
+yes or no to proposed instructions to a jury. In many states nearly
+the whole matter of procedure, its various steps, are fixed by statute
+and become difficult of improvement. If courts could have more power
+and the legislatures would interfere less in matters of procedure, I
+am sure the cause of justice would be better served.
+
+In conclusion, perfect justice may not be attainable by us imperfect
+men. As said by Addison, "omniscience and omnipotence are requisite
+for its full attainment." Yet it is our duty and especially the duty
+of those of the legal profession to attain to such approximation as
+may be possible. No more noble work can engage our powers; no greater
+service can be rendered mankind. I do not except the endowment of
+schools, colleges, libraries, and the like, nor the endowment of
+hospitals and other charitable institutions. Great as are the virtues
+of charity, benevolence, philanthropy, piety and the like, justice
+is a yet greater virtue. To quote Addison again, "There is no virtue
+so truly great and godlike as justice"; and in the words of Daniel
+Webster's eulogy: "Whoever labors on this edifice of justice, clears
+its foundations, strengthens its pillars, adorns its entablatures,
+or contributes to raise its august dome still higher in the skies,
+connects himself in name, fame, and character with that which is, and
+must be, as durable as the frame of human society."
+
+
+
+
+                     PUBLISHED ON THE FOUNDATION
+                       ESTABLISHED IN MEMORY OF
+                         HENRY WELDON BARNES
+                  OF THE CLASS OF 1882, YALE COLLEGE
+
+
+
+
+                           STORRS LECTURES
+
+
+                  Published by Yale University Press
+
+    THE REFORM OF LEGAL PROCEDURE. By MOORFIELD STOREY. Price
+    $1.35 net delivered.
+
+    THE JUDICIARY AND THE PEOPLE. By FREDERICK N. JUDSON. Price
+    $1.35 net delivered.
+
+    CONCERNING JUSTICE. By LUCILIUS A. EMERY. Price $1.15 net
+    delivered.
+
+
+             _Uniform in style with the Storrs Lectures_
+
+    INTERNATIONAL ARBITRATION AND PROCEDURE. By ROBERT C. MORRIS,
+    with a foreword by PRESIDENT TAFT. Price $1.35 net delivered.
+
+
+
+
+
+End of the Project Gutenberg EBook of Concerning Justice, by Lucilius A. Emery
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