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

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