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Title: Concerning Justice
Author: Emery, Lucilius A.
Language: English
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                          CONCERNING JUSTICE

                          LUCILIUS A. EMERY

                      LONDON: HUMPHREY MILFORD
                       OXFORD UNIVERSITY PRESS

                           COPYRIGHT, 1914
                       BY YALE UNIVERSITY PRESS

               First printed August, 1914, 1000 copies

                            TO MY CHILDREN

                          HENRY CROSBY EMERY
                      ANNE CROSBY EMERY ALLINSON



  CHAPTER                                                       PAGE
        JUSTICE. DEFINITIONS OF JUSTICE                            3

        SOURCE OF RIGHTS                                          31

        OF ACTION FOR THE INDIVIDUAL                              43

        INDIVIDUAL AND THE SAFETY OF SOCIETY                      56

        ACTION. THE BEST FORM OF GOVERNMENT                       77

        POWERS OF THE GOVERNMENT. BILLS OF RIGHTS                 95


        JUSTICE                                                  121

        COURTS TO ENFORCE THEM.--CONCLUSION                      146




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

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
Piræus. 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

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

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



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

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

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.



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

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

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

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.



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

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

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.



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 emigrés 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

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

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.



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

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.



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.



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

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

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.



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

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

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.


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

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

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             _Uniform in style with the Storrs Lectures_

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