,libraries7 ,,concerning ,,justice ,,by ,,lucilius ,a4 ,,emery ,,new ,,haven3 ,,yale ,,university ,,press ,,london3 ,,humphrey ,,milford ,,oxford ,,university ,,press ,,mdccccxiv ,,copyright1 #aiad ,,by ,,yale ,,university ,,press ,first printed ,august1 #aiad1 #ajjj copies ,,to ,,my ,,children ,,henry ,,crosby ,,emery ,,anne ,,crosby ,,emery ,,allinson ,,the ,,addresses ,,contained ,,in ,,this ,,book ,,were ,,delivered ,,in ,,the ,,william ,l4 ,,storrs ,,lecture ,,series1 #aiad1 ,,before ,,the ,,law ,,school ,,of ,,yale ,,university1 ,,new ,,haven1 ,,connecticut4 ,,contents ,,chapter ,,page ,i4 ,,the ,,problem ,,stated4 ,,theories ,,as ,,to ,,the ,,source ,,of ,,justice4 ,,definitions ,,of ,,justice #c ,,ii4 ,,the ,,problem ,,of ,,rights4 ,,different ,,theories ,,as ,,to ,,the ,,source ,,of ,,rights #ca ,,iii4 ,,the ,,problem ,,of ,,rights ,,continued4 ,,the ,,need ,,of ,,liberty ,,of ,,action ,,for ,,the ,,individual #dc ,,iv4 ,,justice ,,the ,,equilibrium ,,between ,,the ,,freedom ,,of ,,the ,,individual ,,and ,,the ,,safety ,,of ,,society #ef ,v4 ,,justice ,,can ,,be ,,secured ,,only ,,through ,,governmental ,,action4 ,,the ,,best ,,form ,,of ,,government #gg ,,vi4 ,,the ,,necessity ,,of ,,constitutional ,,limitations ,,upon ,,the ,,powers ,,of ,,the ,,government4 ,,bills ,,of ,,rights #ie ,,vii4 ,,the ,,interpretation ,,and ,,enforcement ,,of ,,constitutional ,,limitations ,,necessarily ,a ,,function ,,of ,,the ,,judiciary #aaj ,,viii4 ,,an ,,independent ,,and ,,impartial ,,judiciary ,,essential ,,for ,,justice #aba ,,ix4 ,,the ,,necessity ,,of ,,maintaining ,,undiminished ,,the ,,constitutional ,,limitations ,,and ,,the ,,power ,,of ,,the ,,courts ,,to ,,enforce ,,them4--,,conclusion #adf ,,concerning ,,justice ,,chapter ,i ,,the ,,problem ,,stated4 ,,theories ,,as ,,to ,,the ,,source ,,of ,,justice4 ,,definitions ,,of ,,justice ,for centuries now much has been written and proclaimed concerning justice and today the word seems to be more than ever upon the lips of men1 more than ever used1 but not always appositely1 in arguments for proposed political action4 ,hence it may not be inappropriate to the time and occasion to venture1 not answers to1 but some observations upon the questions1 what is justice1 and how can it be secured4 ,it was declared by the ,roman jurist ,ulpian1 centuries ago1 that students of law should also be students of justice4 ,by way of prelude1 however1 and in the hope of accentuating the main question and presenting the subject more vividly by comparison and contrast1 ,i would recall to your minds another and even more fundamental question asked twenty centuries ago in a judicial proceeding in distant ,judea4 ,it is related that when ,jesus1 upon his accusation before ,pilate1 claimed in defense that he had come into the world to bear witness unto the truth1 ,pilate inquired of him ,what is truth82 but it is further related that when ,pilate had said this he went out again unto the ,jews4 ,apparently he did not wait for an answer4 ,perhaps he repented of his question as soon as asked and went out to escape an answer4 ,men before and since ,pilate have sought to avoid hearing the truth4 ,indeed1 however grave the question1 however essential the answer to their well-being1 there does not seem to be even now on the part of the multitude an earnest desire for the truth4 ,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 condemnatory4 ,the truth often causes pain4 ,as said by the ,preacher1 ,he that increaseth knowledge increaseth sorrow4 ,people generally give much the greater welcome and heed to him who tells them that their desires and schemes are righteous and can be realized1 than to him who tells them that their desires are selfish or that their schemes are impracticable4 ,it has always been the few who have sought the truth1 resolute to find it and declare it1 whether pleasant or unpleasant1 in accord with the wishes of mankind or otherwise4 ,such men have sometimes suffered martyrdom in the past1 and often incur hostility in the present1 even when seeking that truth on which alone justice can securely rest4 ,nevertheless1 so closely linked are truth and justice in the speech1 if not the minds1 of men1 there should be some consideration of ,pilate's question4 ,whether truth is absolute or only relative has been perhaps the most actively discussed topic in the field of philosophy for the last decade4 ,into this discussion1 however1 we need not enter1 for such discussion is really over the problem of determining the proper criterion of truth4 ,wherever be this criterion1 whether in some quality of inherent rationality or in some utilitarian test of practicability1 the truth itself has some attributes so far unquestioned and of which we may feel certain as being inherent1 necessary1 and self-evident4 ,truth is uncompromising4 ,it is unadaptable2 all else must be adapted to it4 ,it is not a matter of convention among men1 is not established even by their unanimous assent1 and it does not change with changes of opinion4 ,it is identical throughout time and space4 ,if it be true now that since creation the earth has swung in an orbit round the sun1 it was true before the birth of ,copernicus and ,galileo4 ,if it be true now that the sum of the three angles of a triangle is equal to the sum of two right angles1 it was always true and always will be true1 true at the poles and at the equator1 true among all peoples and in all countries1 true alike in monarchies1 oligarchies1 and democracies4 ,truth is also single4 ,there are no different kinds of truth1 though there may be innumerable kinds of propositions of which truth may or may not be predicated4 ,whichever criterion the philosophers may finally agree upon1 it will hold in all propositions alike4 ,the truth of a proposition in mathematics is the same as the truth of a proposition in any other science1 physical1 social1 political1 or theological4 ,it can be no more nor less true in each and all4 ,again1 in every science1 social and political as well as others1 and as to every proposition in any science1 the truth is to be discovered1 not assumed by mere convention2 and men must discover it and discover it fully at their peril4 ,failure even after the utmost effort will not be forgiven4 ,if the truth be found it will be a sure guide in life4 ,if it be not found the lives of men will so far go awry4 ,that it may be difficult to find1 that we may never be sure we have found it1 makes no difference4 ,are there any attributes of justice of which we can speak so confidently as being necessary1 inherent1 and self-evident8 ,that justice ranks next to truth1 if not with it1 seems to have been1 and to be1 the general judgment of mankind4 ,it has engaged the thought and fired the imagination of the greatest minds4 ,a few quotations from such1 ranging from ancient to modern times1 will illustrate this4 ,the ,hebrew ,psalmist gloried that justice and judgment were the habitation of ,jehovah's throne4 ,aristotle wrote1 political science is the most excellent of all the arts and sciences1 and the end sought for in political science is the greatest good for man1 which is justice1 for justice is the interest of all4 ,early in the #abth century the jurist ,irnerius1 distinguished for his learning and for his zeal in promoting the revival of the study of law and jurisprudence1 and also as the reputed founder of the famous ,law ,school at ,bologna1 imaged justice as clothed with dignity ineffable1 shining with reason and equity1 and supported by ,religion1 ,loyalty1 ,charity1 ,retribution1 ,reverence1 and ,truth4 ,six centuries later ,addison1 famed as a clear thinker and writer1 thus wrote of justice3 ,there is no virtue so truly great and godlike as justice4444 ,omniscience and omnipotence are requisites for the full exercise of it4 ,almost in our own time ,daniel ,webster1 called in his day the great expounder and even now reckoned among the greatest of men intellectually1 in his eulogy upon ,justice ,story thus apostrophized justice3 ,justice is the great interest of man on earth4 ,it is the ligament which holds civilized beings and civilized nations together4 ,wherever her temple stands and so long as it is duly honored1 there is a foundation for social security1 general happiness1 and the improvement and progress of our race4 ,perhaps1 however1 none of these laudations is so vividly impressive as is the pithy remark of an old ,english judge that injustice cuts to the bone4 ,but what is this justice1 declared to be so great a virtue1 so ineffable1 so supremely important8 ,i have said we feel certain of some attributes of truth4 ,do we know or can we know anything certain about justice8 ,is it something above and apart from the will of men1 or is it simply a matter of convention among men8 ,is it immutable1 or does its nature change with changing times and conditions8 ,if mutable1 does it change of itself or do men change it8 ,is it universal or local1 the same everywhere or is it different in different localities8 ,is it the same for all men and races of men or does it differ according to classes and races8 ,again1 is it single or diverse in its nature8 ,is there more than one kind of justice8 ,we hear of natural justice1 social justice1 industrial justice1 political justice4 ,what do they who use those terms mean by them8 ,do nature1 society1 industry1 politics1 each have a different criterion8 ,still again1 and briefly1 is justice an inexorable law like the law of gravitation or can its operation have exceptions8 ,is it simply a quality of action or conduct1 or1 as stated by ,ulpian1 is it a disposition or state of mind8 ,finally1 is it a reality or1 as ,falstaff said of honor1 is it after all a word1 a mere scutcheon8 ,i am not so presumptuous as to venture an answer to any of these questions except perhaps the last4 ,as to that1 ,i appeal to our consciousness1 to our innate conviction that there does exist something1 some virtue1 some sentiment1 however undefinable in terms1 holding men together in society despite their natural selfishness1 and without which they would fall apart4 ,it is this virtue1 this ligament of society1 that we call justice4 ,we feel that the word is not a mere word1 but that it connotes a vital reality in human relationship4 ,if this reality be ignored1 men cannot be held together in any society4 ,if justice be the greatest good1 as so generally asserted1 then its negative1 or injustice1 must be the greatest evil4 ,hence error in men's opinions of what is justice will work that greatest evil4 ,society as a whole is liable to error in respect to justice2 has often been mistaken in the past and may be mistaken today4 ,the individuals composing society are seldom1 if ever1 wholly disinterested and dispassionate in their judgments4 ,each individual is prone to believe that what is apparently good for himself or his group or class1 is in accord with justice4 ,himself persuaded that he is battling for justice1 he does not see that he may be battling only for some advantage over others1 for some individual relief from common burdens1 for some privilege not to be accorded to others2 does not see that what he is battling for may cause injustice to others4 ,through ignorance of the real nature of justice1 the grant to one of his plea for what he calls justice may work grievous injustice to others4 ,so when altruists1 warm with sympathy1 obtain the enactment of laws intended for the betterment of the less fortunate1 they may at times do injustice to others and even to those they hoped to benefit4 ,history records many instances where laws intended to insure justice had the contrary effect4 ,many a statute designed to prevent oppression has itself proved oppressive in operation4 ,many a theory of justice has been found to work injustice4 ,a conspicuous and familiar instance is found in the history of the ,french ,revolution4 ,the ,jacobins believed that their theories if given effect would usher in the reign of justice in ,france4 ,they obtained power and exploited their theories only to bring in the ,reign of ,terror1 that reign of terrible injustice4 ,as mistakes and grievous mistakes have been made in the past as to what is justice1 so they will be made now and in the future1 and can be lessened only by greater wisdom and forethought1 by greater effort to consider justice apart by itself1 with philosophical detachment1 with minds unclouded by pity1 sympathy1 charity1 and other like virtues1 on the one hand1 or by envy1 hate1 prejudice1 and like evil sentiments1 on the other4 ,true1 men are more enlightened now and education is more general1 but society is more complex1 with more diverse and conflicting interests1 than formerly4 ,the social mechanism is now so intricate that even a slight disturbance in one part may disarrange the whole4 ,injustice to one may injure the many4 ,hence the duty of ascertaining as completely as possible the real nature of justice is as imperative today as ever4 ,as declared by ,ulpian1 this duty is especially incumbent upon those who have to do with the framing or administration of the laws1 since justice can be enforced only by law4 ,in any inquiry into the nature of justice we get little help from the wisdom of the ancients4 ,they wrestled with the question but seem to have been as puzzled as we of today4 ,indeed1 ,plato represents the sage ,socrates as frankly confessing his inability to answer satisfactorily the persistent question ,what is justice8 ,the question comes up for discussion by ,socrates and some friends at the home of ,cephalus at the ,pirus4 ,socrates criticizes and punctures the definitions advanced by the others until ,thrasymachus1 apparently with some heat1 challenges ,socrates to give an answer of his own to the question what is justice8 and not to content himself1 nor to consume time1 with merely refuting others4 ,after some further discussion of various aspects of the question1 ,socrates finally says1 ,i have gone from one subject to another without having discovered what ,i sought at first1 the nature of justice4 ,i left the inquiry and turned away to consider whether justice is virtue and wisdom1 or evil and folly1 and when there arose a further question about the comparative advantages of justice and injustice ,i could not refrain from passing on to that4 ,the result of the whole discussion has been that ,i know nothing at all4 ,i know not what justice is and therefore am not likely to know whether or not it is a virtue1 nor can ,i say whether the just man is happy or unhappy4 ,granting that the confession may have been intended ironically1 the further discussion did not result in any practical solution1 even if in one possible in ,plato's ideal1 but impossible1 state4 ,indeed1 the inquiry is not yet closed and will not be until the millennium4 ,still1 upon a question so old1 so important1 so persistent1 so ingrained in human society1 and even now receiving such diverse and conflicting answers1 a brief consideration of the earlier beliefs and theories may not be useless4 ,as said by ,bishop ,stubbs1 the historian1 ,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 is4 ,the roots should be examined by him who would understand the tree4 ,in ,homer we get a glimpse of a theory of his time1 to wit1 that each separate decision given by the magistrate in any litigated controversy was furnished to him by ,zeus specially for that case4 ,the ,greek word for such a decision was themis1 and it was supposed that somewhere in the ,pantheon was a corresponding deity whose special function was to furnish the appropriate themis for each case4 ,this deity was shadowily personified as the goddess ,themis1 the daughter of heaven and earth1 the companion and counselor of ,zeus4 ,it was she who summoned gods and men to council and presided unseen over their deliberations4 ,hence she came to be regarded as also the spirit of order without which the ,greek philosophers1 notably ,plato1 held there could be no justice4 ,this theory that justice and even the laws were but the will of deity1 revealed in various ways1 was long generally accepted4 ,in ,rome1 in the time of the kings1 the king was the ,pontifex ,maximus1 and as such1 with the help of the ,college of ,priests1 declared the laws and decided lawsuits4 ,for some time also under the ,republic1 when a vote was to be taken in the ,comitia upon a proposed law1 the question was thus put3 ,is this your pleasure1 ,o ,quirites1 and do you hold it to be the will of the gods8 ,under the ,empire1 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 case1 he assumed and was assumed to have derived the power and inspiration solely from the gods4 ,the early ,christian ,church also preached the doctrine that the ruling power in the state1 however established1 was ordained of ,god and as such was entitled to the obedience of the pious4 ,this belief that justice and judgment were simply the will of ,god1 to be ascertained1 not by reason but by other means1 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 fact4 ,indeed1 resort to such expedients for determining questions of law1 as well as questions of fact1 was not unknown4 ,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 uncles4 ,the king ordered a trial by battle1 which being had1 the champions for the grandchildren were the victors4 ,it was therefore held to be the divine will that grandchildren by a prior deceased child should inherit direct from their grandfather4 ,i may here remind you that trial by battle was not formally abolished in ,england until well into the #aith century4 ,and there is even now professed a belief that the will of ,god can be ascertained by counting ballots4 ,vox ,populi ,vox ,dei is still a shibboleth4 ,but the doctrine that justice is heaven born1 superior to and controlling the opinions and wills of men1 did not escape challenge even in ancient times4 ,those sects of philosophers known as ,epicureans and ,sophists1 consistently with their theory of the nature of virtue in general1 maintained that justice was merely a name for such conventions among men as they should adjudge best for their own utility and happiness4 ,the most vigorous champion of this latter theory appears to have been one ,carneades1 a ,greek philosopher of the second century ,b4,c41 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 antiquity4 ,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 philosophers1 but was merely a convention2 was what men should agree to be a sound basis for the maintenance of civil society1 and hence that it varied with times1 places1 circumstances1 and even opinions4 ,this argument evidently had much effect upon public opinion1 for ,cato urged in the ,senate that ,carneades be banished because dangerous to the state4 ,so great was the influence of ,carneades that a century later ,cicero1 a disciple of the ,stoic school of philosophy1 thought it necessary to refute him specifically as the chief heretic1 and to uphold the orthodox theory against his arguments4 ,cicero denounced with eloquent warmth the doctrine that utility was the foundation of justice4 ,he declared that1 not utility1 but nature1 was the source of justice1 that justice was a principle of nature1 the ultimate principle behind all law4 ,to abridge the familiar quotation from his ,de ,republica1 ,there is a law which is the same as true reason1 accordant with nature1 a law which is constant and eternal1 which calls and commands to duty1 which warns and terrifies men from the practice of deceit4 ,this law is not one thing at ,rome1 another at ,athens1 but is eternal and immutable1 the expression and command of ,deity4 ,in his treatise ,de ,legibus he declared that men are born to justice2 that right is established not by opinion but by nature2 that all civil law is but the expression or application of this eternal law of nature2 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 law2 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 formed4 ,this theory of the ,stoics so eloquently urged by ,cicero was practically the jus naturale of the ,roman jurists of classical times1 though more moderately expressed by them4 ,it does not seem to have been wholly academic1 but to have been actually applied at times4 ,in his history of ,rome1 ,mommsen relates that even during the nearly absolute sway of ,sulla1 after the fall of ,marius1 the ,cornelian ,laws enacted to deprive various ,italian communities of their ,roman franchise were ignored in judicial proceedings as null and void2 also that1 contrary to ,sulla's decree1 the jurists held that the franchise of citizenship was not forfeited by capture and sale into slavery during the civil war with ,marius4 ,later1 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 effect4 ,in ,england as late as the middle of the #agth century ,chief ,justice ,hobart1 a judge of high repute1 asserted that even an act of ,parliament made against natural equity1 as to make a man judge in his own case1 is void in itself for the laws of nature are immutable and they are the laws of laws4 ,in the #ahth century ,blackstone assented to the doctrine of a jus naturale and wrote of it3 ,this law of nature being coeval with mankind and dictated by ,god himself is of course superior in obligation to any other4444 ,no human laws are of any validity if contrary to this1 and such of them as are valid derive all their force and all their authority1 mediately or immediately1 from this original4 ,true1 ,blackstone combated the doctrine that duly enacted statutes were to be held void if the judges thought them contrary to reason1 but he admitted that that extreme doctrine was more generally held4 ,in this country the doctrine of a higher law than the ,constitution even1 and to be obeyed rather than the ,constitution and laws enacted in accordance therewith1 has had and even now has earnest advocates4 ,but the contrary doctrine of ,carneades and the ,sophists would not down4 ,after ,cicero and the civilians1 after ,hobart and ,blackstone1 came our modern utilitarians1 or sophists1 ,bentham1 ,mill1 ,austin1 and others1 who have vigorously maintained with weighty arguments the utilitarian theory of justice2 and that theory is now generally accepted by lawyers and statesmen as at least the most workable theory in human affairs4 ,there still exists1 however1 in the minds of many the belief that above and behind all the turmoil and strife of politics1 all the flux and reflux of social movements and public sentiment1 the confusion of enactments1 amendments1 and repeals of statutes1 the swaying of judicial opinion1 there is some law of nature or in nature1 some criterion1 which if ascertained and obeyed would be perfect justice4 ,this question of the origin1 the foundation of justice1 whether it be of ,god or of men1 seems to have been much more debated than the question what is the nature of justice whatever its origin or foundation4 ,yet some attempts1 other than those attributed to ,socrates1 have been made of old to give a definition of justice4 ,the earliest description ,i have found is that of the early ,pythagoreans1 who1 in accordance with their practise of symbolizing the virtues by geometrical figures1 designated justice by the square1 and the just man by the cube4 ,plato seems to have had a theory of justice when he wrote in the ,gorgias1 ,nature herself intimates that it is just for the better to have more than the worse1 the stronger than the weaker1 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 inferior4 ,in these days our first impulse may be to denounce ,plato's statement as altogether wrong if not worse4 ,we should remember1 however1 that ,plato was not considering any altruistic virtue such as kindness1 sympathy1 benevolence1 generosity and the like1 but only what nature indicates to be the essential condition of successful association4 ,thus interpreted1 are we prepared to confute the statement8 ,do we know of any state of society in human or animal life at any time1 past or present1 of which the contrary of ,plato's statement is true8 ,but passing over all other attempts of the ancients to define justice1 none of which seems to have been much regarded by contemporary opinion1 ,i will only cite the most famous1 that by ,ulpian1 the renowned jurist of the best period of ,roman jurisprudence1 whose writings were most drawn upon by the learned compilers of the ,institutes and ,digest of ,justinian2 viz41 ,justitia est constans et perpetua voluntas jus suum cuique tribuendi1 or ,justice is the constant and perpetual will to render to every one his right4 ,this definition was adopted by the compilers as correct and made the introduction to the ,institutes4 ,it thus received the imperial sanction and was quoted wherever the law of ,rome prevailed1 down through medieval times and later1 almost as if it were an inspired or at least authoritative definition not to be questioned4 ,but notwithstanding the acclaim with which this definition was hailed1 ,i question that it was any improvement on that of ,aristotle1 who tersely defined justice as that virtue of the soul which is distributive according to desert4 ,indeed1 ,i think ,aristotle was nearer the mark4 ,upon the revival of the study of law and jurisprudence in the #aath and #abth centuries several of the more famous jurists of that time1 ,azo1 ,irnerius1 ,placentinus and others1 essayed definitions of justice1 but they do not seem to have improved upon ,ulpian4 ,their definitions were vitiated by theological assumptions and none of them has become a text for commentators or students4 ,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 afterward4 ,we may therefore return to ,ulpian's definition as our point of departure1 since his definition is substantially that suggested earlier by ,aristotle1 and observations on the later will also apply in many respects to the earlier4 ,ulpian's definition is elegant in style1 but it does not carry us very far in our inquiry4 ,we are told indeed that justice is a state or disposition of the mind1 the disposition to render to everyone his right or1 as put by ,aristotle1 is the disposition to distribute according to desert4 ,it was this statement that captured the medieval jurists and which they made their text1 but it is now regarded as incomplete and even inaccurate4 ,one may have the disposition1 the desire1 the will1 to render to every one his right1 but unless he can know what is his fellow's right he may unwittingly fail to accord it to him and thus unwittingly do injustice4 ,it evidently is not enough to have the disposition or will2 hence the definition is incomplete1 and any definition is incomplete which does not furnish a criterion for determining what is the given man's right4 ,but the definition as far as it does go is not strictly accurate4 ,the man of malevolent disposition who would wrong his fellow if he dared1 may yet1 to avoid unpleasant consequences to himself1 render fully to every other man his right4 ,it would seem1 therefore1 that justice is an attribute or quality of conduct rather than a disposition or state of mind1 and of conduct toward others rather than of conduct toward one's self4 ,it is only of the conduct of men in their relations to other men that we can predicate justice or injustice4 ,one's conduct may result in good or evil to himself and so be wise or unwise1 but assuming1 what probably is never the fact1 that it affects only himself1 in no way affects any other1 his conduct is neither just nor unjust4 ,robinson ,crusoe1 until the arrival of the man ,friday1 had no occasion to consider our problem4 ,but1 admitting that each man's conduct1 whether active or passive1 does affect some other person1 what is the criterion by which to determine the justice or injustice of that conduct8 ,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 unjust1 otherwise not2 for then the question comes to the front1 what is the right of that other in the given case8 ,indeed1 this latter question is the crux of the problem of justice4 ,the derivation of the word justice also shows this4 ,the ,latin justitia or justitium according to some scholars is compounded of jus1 right1 and sisto or steti1 to place1 or to cause to stand1 and hence the whole word may be held to signify the maintenance of jus or right4 ,with the question of jus or right correctly answered1 the problem of justice is practically solved4 ,the right of the one being known1 the effect of any particular conduct of another on that right1 and consequently its justice or injustice1 is determinable with comparative ease4 ,hence to make progress in our inquiry we must consider the problem of rights1 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 right4 ,we instinctively feel that if we render to another his full right we do him full justice1 and that if we ourselves are deprived of any right we suffer injustice4 ,what is his or our right is therefore the real question4 ,this will be our next subject for consideration4 ,,chapter ,,ii ,,the ,,problem ,,of ,,rights4 ,,different ,,theories ,,as ,,to ,,the ,,source ,,of ,,rights ,the problem of ,rights is also centuries old4 ,there have been in later years glowing tributes to human rights even more than to justice1 though the sentiment of rights is egoistic1 while that of justice is in some measure altruistic4 ,there have also been diverse opinions in the past1 as now1 as to the source1 foundation1 and nature of what are called ,rights1 as there were and are of justice4 ,a brief review of these opinions and of the changes in them may present the problem more vividly4 ,in patriarchal times there could be no political questions about rights4 ,the head of the family was supreme and sole ruler and judge4 ,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 family4 ,when families and tribes were combined in states1 government was long conducted on the theory that as the individual had belonged to the family or tribe into which he was born or adopted1 so he now belonged to the state1 to be directed and disposed of as the state might order4 ,what he might enjoy of life1 liberty1 or property was the gift of the state1 subject to revocation at will4 ,plato reflects this theory in making ,hippias declare that the measure of man's right is what the state commands4 ,the total abolition of the liberty of innocent persons by holding them in slavery was not deemed any infringement of any right of theirs4 ,this theory was acted upon in democratic as well as in monarchical states4 ,slavery was as lawful in ,athens1 ,sparta1 and republican ,rome as in ,persia or ,egypt4 ,true1 there were rebellions and revolutions at times1 but1 though sometimes provoked by oppression1 they were usually to acquire the power of government and not in defense of individual rights4 ,the ,plebeians revolted to obtain a greater share in the governing power4 ,the civil wars of ,marius and ,sulla were not waged for liberty but for power4 ,in ,sicily1 where the slaves under ,eunus had for a time wrested the governing power from their masters1 they did not hesitate to enslave in turn4 ,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 governments4 ,the ,english ,magna ,charta purports to be a grant from the king and1 though framed by the barons and forced upon the king1 it contains no assertion of rights by nature4 ,the rights claimed were claimed as accustomed rights previously conferred and enjoyed1 such as the laws and customs of the time of ,henry ,i4 ,apart from provisions as to improved methods of administration1 the language of the ,charter implies restoration rather than revolution4 ,so in the ,petition of ,right in the reign of ,charles ,i1 no appeal was made to natural rights1 but the demand was for accustomed privileges1 for the observance by the king of the old laws and customs of the realm1 especially those in force under ,edward ,i and ,edward ,,iii4 ,in the ,petition1 the ,charter of ,king ,john is cited1 not as a schedule of the rights of man in the abstract1 but as ,the ,great ,charter of the ,liberties of ,england1 implying that the liberties therein named were not the natural heritage of men in general but the peculiar heritage of ,englishmen1 under ,english law4 ,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 realm4 ,so in the ,bill of ,rights framed by ,parliament and approved by ,william and ,mary upon their accession to the throne1 it was not asserted that the acts of ,james ,,ii complained of were contrary to any natural right of the subject1 but that they were utterly and directly contrary to the known laws and statutes and freedom of this realm4 ,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 liberties4 ,in the earlier remonstrances of the legislatures of the ,english colonies in ,america against various acts of the king and ,parliament1 only the accustomed rights of ,englishmen were claimed to be violated4 ,the colonists1 at first1 claimed as against king and ,parliament no rights not accorded to ,englishmen in ,england4 ,but though the notion that man has rights by nature1 not granted by the state and which the state should respect as such1 did not for centuries find expression in state papers or state action1 it was by no means non-existent4 ,it was early in the minds of many and found some expression in the writings of jurists and philosophers4 ,in ,rome it was a corollary of the doctrine of the existence of a jus naturale4 ,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 state4 ,so far1 however1 as the statement was susceptible of that construction it was not generally acted upon and remained practically a dead letter4 ,the doctrine itself survived1 however1 engaging the attention and receiving the support of various writers4 ,it gradually gained ground among students of politics and spread rapidly after the ,protestant ,reformation1 so-called1 because of the impetus given by that event to the exercise of private judgment4 ,as early as the #agth century1 though finding little or no expression in the ,petition of ,right or ,bill of ,rights1 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 ,church1 and was invoked by them to some extent as justifying the revolution of #afdj4 ,the doctrine also passed over to the ,puritan ,colonies in ,america and early found some expression there4 ,in the ,massachusetts ,body of ,liberties of #afda there is a suggestion that the liberties1 etc41 therein recited1 were those demanded by humanity1 civility and christianity rather than accustomed liberties4 ,it was further asserted that these liberties were to be enjoyed by the people of the ,colony and their posterity forever4 ,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 writers1 ,english and ,continental4 ,it has been said1 ,i think with truth1 that the writings of ,locke1 ,voltaire1 ,rousseau1 ,montesquieu1 and even of ,blackstone1 were more widely read and studied in ,america than in ,europe4 ,the brilliant writings of ,tom ,paine also had great influence4 ,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 ,parliament4 ,in #aggd 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 ,constitution4 ,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 claims1 but based them exclusively on the theory of natural rights4 ,they declared3 ,we hold these truths to be self-evident1 that all men are created equal2 that they are endowed by their ,creator with certain unalienable rights2 that among these are life1 liberty and the pursuit of happiness4 ,the same influences undoubtedly contributed to bring about the ,french ,revolution of #aghi1 and the theory of natural rights again found expression in the ,french state papers of that period4 ,in ,august of that year1 in the early stages of the ,revolution1 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 #agia1 viz41 ,art4 #a4 ,men are born and remain free and equal in rights4 ,social distinctions can be based only upon public utility4 ,art4 #b4 ,the aim of every political association is the preservation of the natural and imprescriptible rights of man4 ,these rights are liberty1 property1 security and resistance to oppression4 ,thus in the latter part of the #ahth century the doctrine that man has some individual rights by nature1 not by grant or prescription1 and not alienable1 obtained official recognition in two great nations4 ,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 truth4 ,nevertheless the doctrine is only a theory1 not yet demonstrated nor undoubted4 ,it has been assailed and in the opinion of many refuted1 by ,bentham1 ,mill1 and other utilitarian writers1 the successors of ,epicurus1 ,carneades and the ,sophists4 ,even in ,france and ,america it is now repudiated by many and declared to be an obstacle to social and political improvement4 ,still1 despite the vigorous arguments against the doctrine1 there remains the innate feeling and a general belief that society abridges individual rights instead of conferring them4 ,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 character1 and rarely1 if ever1 permissive4 ,from the ,decalogue down1 the language of the law has been compulsive1 ,thou shalt and ,thou shalt not2 and men generally act upon the theory that what society does not forbid by statute or custom the individual may do4 ,in passing now from the region of theory1 of speculative opinion1 to what seems to me the region of facts1 of actual conditions1 of actual traits of human nature1 ,i wish it to be understood distinctly that in what ,i may say about rights ,i am considering only the precepts of justice1 and that ,i differentiate those precepts from the precepts of religion1 charity1 philanthropy1 benevolence1 and other similar virtues1 and even those of what is loosely called humanity4 ,if it be true as asserted by ,addison that justice is the greatest and most godlike of the virtues1 it does not follow that the just man1 to be just1 must possess all or any of the other virtues4 ,one can be just without being religious1 charitable1 or philanthropic1 and even without earning the reputation of being humane4 ,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 freedom4 ,i do not take into account the rights of children under that age4 ,with these premises borne in mind1 ,i would now in the next chapter call attention to some propositions of fact1 which ,i shall assume to be established by science and history and by the reader's own experience and observation1 and which ,i think bear more or less directly on our subject4 ,,chapter ,,iii ,,the ,,problem ,,of ,,rights ,,continued4 ,,the ,,need ,,of ,,liberty ,,of ,,action ,,for ,,the ,,individual ,men are endowed by nature with sundry powers1 faculties1 capacities1 physical and mental4 ,these1 however1 are not at all uniform1 but are diverse in kind and degree in different races of men and in different individuals of the same race4 ,nature seems to work through diversity rather than through uniformity1 indeed through inequality rather than through equality4 ,not all men are born poets1 nor are all poets equally good poets4 ,not all men are by nature adapted for intellectual pursuits1 and those who are so adapted are not in that respect equally favored by nature4 ,even in the field of the simplest manual labor there is great diversity of natural capacity4 ,it seems to be nature's theory that mankind1 the human race as a whole1 will be better served by diversities1 by differences in kinds and degrees of powers1 than by uniformity and equality4 ,further1 normal men are also by nature endowed1 if not with rights1 yet with sundry instincts1 desires1 passions2 also with sundry feelings1 emotions1 sentiments2 and also with some degree of reason and power of choice4 ,some of these may not be apparent in infancy1 but they appear in a greater or less degree of intensity as the individual develops4 ,among these instincts or desires is the desire to live1 the desire to serve each his own welfare and that of his offspring1 and the desire to decide for himself what will best serve that welfare4 ,as a corollary1 he also has by birth the desire for freedom to exercise any and all of his talents and powers in such manner1 to such extent1 and in pursuit of such objects as he prefers1 or to be idle if he prefers idleness4 ,further1 he has the instinct of acquisitiveness1 the desire to appropriate to himself and retain control of such material objects as he thinks may serve his welfare and that of his offspring1 and especially does he have a natural instinct and desire to possess and control exclusively for himself whatever1 much or little1 he has wrenched from nature or otherwise obtained by the exercise of his various powers4 ,this instinct is also observable in some animals4 ,a dog will hide a bone for his own exclusive future use4 ,man also instinctively claims for his own the natural increase of what he has acquired1 the young of his beasts1 the fruits of his orchard4 ,this desire for control includes the desire to store up1 to use1 to consume1 to transfer1 and even to destroy at will4 ,this desire is seen in young children1 who will try to clutch and hold whatever attracts them1 and who will hoard or break toys or throw them away as their whims may be4 ,as they get older the desire to control grows stronger1 for they destroy less and preserve more in order to have greater measure of control2 but still they desire freedom to consume or destroy at their own will4 ,so strong is this desire of control that men wish to direct what shall be done with their property after their death4 ,if one is balked or hindered in the gratification of any of these desires1 there is excited in him a feeling of resentment against the cause1 even if it be only some force of nature4 ,there is a note of anger in the cries of a child over interference with his play1 the deprivation of any toy or other thing he may have or desire4 ,that the wind or the rain was the cause does not sooth him4 ,in the mature man also1 anger adds some force to the kick he gives even inanimate objects unexpectedly impeding him4 ,who of us has ever fallen over a chair in the dark without mentally1 at least1 consigning it to perdition8 ,the old law of ,deodand was an expression of this feeling of resentment against inanimate objects even4 ,by that law1 according to ,blackstone1 whatever chattel was the immediate cause of the death of a reasonable creature was forfeited to the crown1 as when a cart ran over a man4 ,by the laws of ,draco whatever caused a man's death by falling upon him was to be destroyed or cast out of the community4 ,thus a statue having fallen upon a man1 it was thrown into the sea4 ,the ,mosaic law savagely declared3 ,if an ox gore a man that he die1 the ox shall be stoned and his flesh shall not be eaten4 ,is not this instinctive feeling of resentment at interference with one's person1 liberty1 or property1 the rudiment of a later developed idea1 or sentiment1 of rights possessed8 ,resentment is felt only when one is deprived of something he feels he is entitled to4 ,granting that nature has not endowed man with rights1 it has imbued him with a belief that he has rights1 and also with a disposition to defend them4 ,man is also born into a material world of natural forces1 and hence to gratify his desire to live and serve his own welfare and that of his offspring1 he must adapt himself to his environment1 fit himself to withstand heat and cold1 provide himself with food and shelter4 ,he not only desires to1 but he must1 exercise his powers of mind and body and hence should be free to exercise them to that extent at least4 ,nature does not feed1 clothe and shelter man4 ,it only provides the raw material which man must himself find1 take1 and convert by his labor1 manual and intellectual1 into food1 clothing1 shelter1 and whatever else he desires4 ,but man is also born into association with other men1 into some sort of social organization1 and well for him that he is4 ,it is not society1 however ill organized1 that has caused1 or today causes1 poverty4 ,that is the primitive condition of the human race4 ,it is only through some social organization ensuring to man freedom for his labor and security for his savings that he can escape poverty4 ,if each individual by his own unaided efforts had to find the raw material1 mold it to serve his needs and desires1 and also defend it from attacks by others1 his life would be one of dire poverty1 scarcely above that of the higher animals4 ,further1 nature has so formed man that he not only needs but desires association with other men4 ,children instinctively flock together for common play1 and this social instinct continues through life and extends to work as well as play4 ,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 others4 ,but there is over and surrounding these associations that larger association1 racial or territorial1 which we call society4 ,this is the necessary association into which man is born and in which he must live if he desires other than mere animal life4 ,this society must be maintained if the race of men1 as men and not as mere animals1 is to continue4 ,indeed1 society itself has a sort of instinct for self-preservation4 ,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 own4 ,association1 however1 does not extinguish nor appreciably lessen the natural instincts1 desires1 feelings1 sentiments1 etc41 of the individual1 though they may be made less active by continued restraint4 ,association even extends the scope of man's individual desires and activities4 ,he now desires freedom to make arrangements with other men of such nature and for such purposes as he and they may agree upon4 ,if he is prevented by authority from making such arrangements he feels some resentment1 feels that his right is infringed4 ,he also comes to desire that those who have entered into arrangements or contracts with him should perform their part1 and he instinctively feels resentment at their neglect or refusal to do so4 ,he feels that he has a right to the performance of the contract4 ,another desire is developed or given play by society1--the desire to equal one's fellows in the race for benefits1 and1 that accomplished1 to excel them4 ,he desires to win in every game1 to be the victor in every contest of physical or mental powers1 and in business as well as in sports4 ,if he is held back he feels resentment against the power assuming to restrain him4 ,he thus feels he has a right to equal and to excel if he can4 ,whether competition should be enforced or stimulated by society is a question in economics4 ,what affects the question of rights and hence of justice is whether this desire to excel should be impeded4 ,in this association1 however1 each individual man finds himself in close contact all through life with other men having like instincts1 desires1 feelings1 emotions1 etc41 as his own2 and who also feel like resentments and have like notions of rights possessed4 ,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 others2 if they be left free to take who have the power and only they may keep who can1 society could not exist and civilization1 if not the race1 would perish4 ,society1 therefore1 must frame and enforce rules for the regulation and control of the conduct of its individual members1 must even restrain them to some extent from the gratification of some of their desires4 ,on the other hand1 these instincts1 desires1 etc41 must still be reckoned with4 ,they cannot be wholly suppressed nor even very much reduced or impeded if society is to progress or even exist4 ,there must be left to the individual some degree of liberty of choice and action4 ,an eminent ,american jurist1 ,james ,c4 ,carter1 vividly stated this1 though perhaps in the extreme1 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 others4 ,liberty 7he wrote71 the first of blessings1 the aspiration of every human soul1 is the supreme object4 ,every abridgment of it demands an excuse1 and the only good excuse is the necessity of preserving it4 7,carter's ,law4 ,its origin and growth1 page #ccg47 ,there must also be left to the individual some personal motives for labor and thrift1 for1 after all1 it is the toil of individuals that supports society and its members4 ,it is the surplus products1 not consumed1 but stored up by the economy of individuals that constitutes the energy of society4 ,however it may be improved in the future1 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 use4 ,he will not strive to earn and then conserve his earnings unless he can have them for his own1 to control1 use and dispose of at his pleasure4 ,however it may be with a few unselfish1 devoted souls1 men as a rule are not yet so altruistic as to devote themselves exclusively to the good of others1 of society4 ,i think it evident that if the impelling natural desire to serve one's self be wholly or even largely disregarded by society1 little would be produced or saved by voluntary labor and self-denial4 ,the alternative would be the restoration of some system of enforced labor1 of slavery1 for the vast majority of men4 ,at this day1 after centuries of exhortation to practise the virtues of benevolence1 of brotherly love1 of self-sacrifice for the good of others1 men do not from pure love of humanity voluntarily endure heat and cold1 expend their labor and savings in working mines1 in braving seas1 in building and operating factories1 railroads and steamships1 in growing corn and cotton4 ,even those public offices1 in which the altruist might find the best opportunities for serving the people1 are not much sought for unless some personal honor or pecuniary profit be attached to them4 ,should society decree that the laborer1 whether with hands or brain1 should have no individual reward proportionate to the efficiency of his labor1 but only his numerical proportion of the product of all laborers1 ,i fear the efficiency of all classes of laborers1 manual and mental1 would fall to the irreducible minimum4 ,the foregoing statements and inferences lead to the question1 how far should society go in undertaking to regulate the conduct and restrict the freedom of the individual1--that freedom which would be his if he were alone in the world8 ,it may be thought that this is a question of expediency for economists and sociologists1 and so it is largely1 but it is also a question of rights and hence of justice1 since every action or non-action of society affects the freedom of the individual in the gratification of his desires or1 in other words1 in his pursuit of happiness4 ,,chapter ,,iv ,,justice ,,the ,,equilibrium ,,between ,,the ,,freedom ,,of ,,the ,,individual ,,and ,,the ,,safety ,,of ,,society ,the question stated at the close of the last chapter is most important and1 in a sense1 is perhaps the crux of the whole matter4 ,not only may error in the solution of the question injuriously affect the material interests of individuals and hence of society as a whole1 but it may cause unhappiness far greater than that caused by any material loss1 viz41 a sense of injustice4 ,as said by the ,english judge1 ,injustice cuts to the bone4 ,at the outset ,i accept ,herbert ,spencer's theory that the idea of justice contains two sentiments1 positive and negative2 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 use2 the other the consciousness that the presence of other individuals with similar claims of rights necessitates some limitation of his own claims4 ,out of those two sentiments is evolved1 ,i think1 the idea of justice or injustice according as they are or are not in equilibrium4 ,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 society4 ,the restraint of personal conduct within too narrow limits1 the necessity of which cannot be made clear1 excites resentment1 stimulates angry passions1 and hence causes unhappiness through a sense of injustice4 ,restraint within necessary limits only1 the necessity of which can be seen1 arouses no resentment2 on the contrary1 it satisfies the individual1 favors harmonious cooperation1 profits society and increases the happiness of its members1 through the appreciation of that necessity4 ,but for the fixing of the boundary line between necessary and unnecessary restraints upon personal conduct1 some other matters still are to be considered4 ,i have said that man instinctively feels resentment at interference with whatever he may think is his right to do1 or get1 or keep4 ,if this interference is from any of his fellow men his resentment is greater than when it is from natural forces4 ,there arises the desire for vengeance1 the desire to get even1--to use a common phrase1--by inflicting a corresponding injury on the offender4 ,an eye for an eye1 a tooth for a tooth1 is instinctively demanded now as of old4 ,if unable to inflict a corresponding injury there is the desire to inflict an equivalent injury4 ,to paraphrase ,bacon1 revenge is justice running wild4 ,this instinct should be heeded by society4 ,if it be necessary for its own preservation that society restrain this instinct1 prohibit private vengeance1 then it must itself provide for satisfaction of the instinct2 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 offense4 ,this should be done speedily and gratuitously so far as possible4 ,delay and expense cause resentment in the suitor for justice and so cause injustice4 ,in doing this1 society not only protects itself but it restores an equilibrium of rights disturbed by the offender4 ,this restoration of equilibrium is an essential element in the concept of justice4 ,of course1 as society progresses and human nature improves1 this desire of the injured for vengeance on the offender becomes weaker4 ,the virtues of mercy1 forgiveness1 or willingness to forego the demand for punishment1 come into play and society is allowed to attempt to reform rather than to punish1 or is allowed to pardon altogether4 ,these virtues1 however1 are not part of the concept of justice4 ,if the punishment seems inadequate1 or the pardon seems undeserved1 there remains1 or is again excited1 the feeling of resentment4 ,the equilibrium is not restored4 ,another sentiment or feeling is to be reckoned with in order to secure this equilibrium in society4 ,the young1 untrained child is impatient of all restraint4 ,it is only by experience that he learns he must submit to restraint if he would have any sort of association with his fellows4 ,he learns that he must submit to the rules of the game if he would have a part in the game4 ,as he comes to maturity he becomes conscious that society must impose restraint upon him and hence feels no resentment against all restraint1 as does the untrained child4 ,he does1 however1 feel resentment if restraints are imposed upon him in his pursuit of happiness which are not imposed upon others in their pursuit4 ,similarly he feels resentment if exemptions from restraint are allowed some others and not allowed him also4 ,furthermore1 he is quick to note any discrimination against himself and prone to imagine it when in fact there is none4 ,almost as soon as the average child is placed with others under a common authority1 as in a public school1 he begins to complain of the teacher's partiality to other pupils4 ,he will stay in no game where the rules operate unequally against him4 ,he insists on an even chance with his fellow players4 ,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 business4 ,this feeling is especially noticeable in the matter of taxation4 ,if one believes the taxes imposed by the government are unnecessarily heavy he may feel some resentment1 but his resentment is much greater if he believes he is overtaxed in comparison with his fellows1 that they are escaping their proportionate share of the burden1 or that taxes are imposed on his products in order to favor the products of others1 as when oleomargarine was taxed to handicap it in its competition with butter4 ,this feeling of resentment at inequality of restraints and burdens imposed and exemptions granted is not ignoble1 is not a feeling to be suppressed or even concealed4 ,it is far different from the feeling of envy4 ,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 wronged4 ,but if ,i am excluded from a public street car to which he is admitted ,i have a different feeling1 that of resentment4 ,i may be perfectly willing that all others1 rich or poor1 shall use the streets to the full extent that ,i do1 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 me1 my feeling is not one of envy but of indignation4 ,so ,i can appreciate that if ,i wilfully or through carelessness injure another ,i should make full compensation1 and hence can cheerfully submit to the law compelling me to do so2 but if the law undertakes to exempt any other person from a similar liability1 ,i feel a keen sense of wrong4 ,conversely1 the most strict disciplinarian1 the martinet even1 if otherwise competent receives ready obedience and respect if it is seen that he treats alike1 according to their merits1 all subject to his authority4 ,this feeling is natural4 ,nature is impartial in the application of its laws4 ,it allows no exemption4 ,its fires burn the weak as well as the strong1 the child as well as the man1 the poor as well as the rich4 ,one star differs from another star in glory1 but no one of all the millions of stars is exempt from any of the laws set by nature for stars4 ,this feeling of right to impartiality of treatment had some faint expression in the ,massachusetts ,body of ,liberties of #afda1 in which it was declared that the liberties1 etc41 therein enumerated should be enjoyed impartially by all persons within the jurisdiction of the colony4 ,it was more distinctly recognized in the ,connecticut ,declaration of #ahah and a part of the ,connecticut ,bill of ,rights today1 ,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 community4 ,again it appears in the federal and some state constitutions in the provision against the granting of titles of nobility4 ,it seems to be at least impliedly recognized in the ,x,i,vth amendment to the ,united ,states ,constitution in the clause that no state shall deny any person within its jurisdiction the equal protection of the laws1 since the equal protection of the laws necessarily implies protection against unequal laws1 laws favoring some at the expense of others or of the whole4 ,if the state favors one more than another it does deny that other equal protection4 ,i do not subscribe to the doctrine that the greatest good of the greatest number is to be sought4 ,the only legitimate search is for the good of the whole number without discrimination for or against any one4 ,this sentiment found expression in the once popular slogan1 ,equal rights for all4 ,special privileges for none4 ,i say once popular1 for today it would seem not popular in practice4 ,true1 special privileges are still loudly denounced1 but under the name of special exemptions1 they are still demanded by those who denounce them most loudly4 ,it is not inequality of natural powers of body or mind1 nor inequality in natural conditions1 that excites this feeling of resentment ,i have noted4 ,the man of feeble natural powers may envy him of strong natural powers1 but he can see that society1 that law1 is not responsible for that inequality4 ,if one finds himself from lack of natural ability or adaptiveness unable to accomplish what others of superior ability or adaptiveness easily accomplish1 and hence he fails to receive the prize they so easily win1 he may feel great disappointment and regret1 but if honest with himself will not attribute his failure to the injustice of society4 ,it is not essential to the preservation of society and the race that such inequalities should be removed1 that all men should be reduced to a dead level of capacity1 that human nature should be ignored4 ,it is strongly felt1 however1 that society should not itself create artificial inequalities1 should not allow one man or set of men a liberty it will not allow to others1 should not impose burdens on one man or set of men to be borne by them alone while others are exempt2 or if it does undertake to do so it should be able to demonstrate that such artificial inequality is necessary for the safety of all4 ,the intensity of this feeling against artificial inequalities is so great that men sometimes prefer equality before the law even to liberty4 ,when the ,british ambassador said to ,madam ,de ,stael that ,frenchmen had no more liberty after the ,revolution than before1 she answered that they had acquired equality before the law and they preferred that to more liberty4 ,this sentiment was tersely and well expressed in the ,french ,declaration of ,rights of #agie4 ,equality consists in this1 that the law is the same for all whether it protects or punishes4 ,of course1 no assertion of rights can be carried to the extent of the dictum1 ,fiat ,justitia ruat ,respublica1 for if the state fall1 all hopes of justice fall with it4 ,when the alternative is the conquest of the particular society by invasion or its disorganization by rebellion or rioting or otherwise1 some of its members must submit to the sacrifice of some or all of their rights4 ,nature will sacrifice individuals for the preservation of the race4 ,society must sometimes do the same4 ,inter arma silent leges4 ,but such times are exceptional and not within the scope of our inquiry4 ,to sum up the matter1 justice is the according to every one his right1 and that right is such freedom of action in gratifying one's desires as can be exercised in harmony with like freedom by others4 ,in other words1 it is equal freedom1 equal restraint4 ,it is order and harmony4 ,plato and ,aristotle were right in teaching that order is an essential element of justice4 ,but who is to determine the matter8 ,who is to determine what degree of restraint or liberty is necessary to secure this order and harmony1 this justice8 ,obviously it is society1 or rather1 individuals acting as a whole through society and not each individual acting for himself1 that must determine such questions4 ,society has the responsibility4 ,if it imposes too many restraints or imposes them unequally it excites1 as said before1 resentment and antagonism1 sometimes to the extent of resistance4 ,if it imposes no more restraints than are necessary and imposes them equally1 order and harmony are secured4 ,and when we have this equal freedom with equal and only necessary restraints we have order and harmony1--in other words1 justice4 ,indeed1 to repeat1 justice in some of its aspects may be considered as the desired equilibrium between the needs of society and the interests of its individual members4 ,i have left out of the account various virtues1--pity1 sympathy1 philanthropy1 generosity and the like4 ,though these make social life more agreeable and contribute much to the sum of human happiness1 they are not essential to the existence of the race or society4 ,society as an organization is not held together by these virtues1 though many of its weaker members might suffer and perish if they were non-existent4 ,allow men as much freedom of thought and action as can be exercised without interference with like freedom of others1 but restrain them from exercising any greater freedom1 and they can and will live together in society though they may be wholly selfish in feeling and conduct4 ,what is called the golden rule1 that we should do to others as we would have them do to us1 is a precept of philanthropy1 of charity1 not of justice4 ,the rule enunciated by ,confucius five hundred years before ,christ1 the rule that we should not do to others what we would not have them do to us1 is sufficient for the existence of society4 ,the ,french ,convention of #agic stated the proposition in these words3 ,liberty is the power that belongs to man to do whatever is not injurious to the rights of others2 it has nature for its principle1 justice for its rule1 law for its defense3 its normal limit is the maxim1 ,do not to another that which you do not wish to be done to you4 ,this order and harmony1 however1 are not easily secured4 ,not only are there honest differences of opinion as to what restraints are necessary and how and on whom they should be imposed1 but society is divided into groups or classes with interests conflicting1 or thought to be conflicting1 and each seeking to impose restraints on others while retaining freedom for themselves4 ,while professing to demand more liberty and equality1 they are often really insisting on greater restraint and inequality4 ,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 instance4 ,another and equally glaring example is the effort in this country to exempt from the law against combinations in restraint of trade1 combinations to increase the cost of living by increasing the prices of agricultural products and the prices to be paid for labor4 ,the effort seems to be to compel men to compete in the use of their savings no matter how wasteful the competition1 and to forbid men competing in the use of their labor1 no matter what the idleness thereby caused4 ,i think it a truism that whoever seeks to be exempted from the restrictions or liabilities he would impose on others1 seeks not justice1 but to do injustice4 ,another hindrance arises out of the very virtues of pity and sympathy4 ,these impel many to endeavor1 not to persuade1 but to compel the more efficient and prudent who have by their farsightedness1 courage1 industry and thrift made good provision for themselves and their offspring1 to provide also for the inefficient and the improvident4 ,to be asked to give to these does not offend any sense of right1 but if one be told he must give he feels resentful at once4 ,he feels he has a right to decide for himself to whom and to what extent he shall give of his savings4 ,society did not come into existence nor does it now exist to correct the inequalities of nature1 the inequalities of natural powers1 nor to prevent the efficient and prudent receiving and enjoying the results of their efficiency and prudence4 ,nature itself makes no such effort4 ,it rather tends to eliminate the less efficient and preserve the more efficient4 ,even if society may strive to preserve the inefficient and improvident1 should it do so by hampering and restraining those wiser and more capable8 ,we must expect nature to deal with society1 with states and nations1 as it does with individuals4 ,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 many1 it cannot long maintain any advantageous position among other nations4 ,whatever the precepts of religion1 of philanthropy1 or of other virtues may require1 the precepts of justice do not require society to support men in idleness nor even to furnish them with employment4 ,neither do the precepts of justice require the state to furnish opportunities1 nor even to establish equality of opportunity1 but only equality of right to take advantage of opportunity4 ,it is a saying1 but not a fact1 that opportunity knocks once at every man's door4 ,nature does not bring opportunities1 much less equal opportunities1 to men's doors4 ,it requires men to go out and search for opportunities1 or at least to be on the watch for them1 as it requires men to search or watch for other things they desire2 and he of the quickest perception and most farsighted will soonest see them1 and when seen he does not feel any obligation to share them with others less vigilant or even less fortunate4 ,society does not support its members1 they support it and must support it and themselves by their own exertions1 find their own place1 find employment for themselves1 so far as the precepts of justice are concerned4 ,however prevalent the sentiment that more than equality of right to use his opportunities is due to any one1 it is not an instinctive sentiment4 ,the contrary is the fact4 ,unless we are dominated by some other sentiment than justice1 we instinctively yield assent to ,aristotle's proposition that the prize flute should be awarded to the best flute player whether opulent or indigent1 literate or illiterate1 citizen or slave4 ,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 luck4 ,so with groups of small boys fishing in the streams and brooks4 ,in games of cards for stakes1 the players do not expect to hold cards of equal value and they concede the stakes to the winner1 whether won by his greater skill or superior cards4 ,also there is an instinctive sentiment that the evil results of one's own conduct should be borne by him alone4 ,if one suffers loss through his own misjudgment1 incapacity1 or want of care1 then1 whatever the precepts of other virtues may require1 we do not feel that justice requires us to bear any part of that loss4 ,on the contrary1 we feel instinctively that he should bear the loss alone1 that it is the natural penalty for his lack of judgment1 capacity1 or care4 ,if my neighbor neglects to insure his house and loses it by fire1 ,i see no reason why he should not bear the loss alone4 ,in this connection1 perhaps ,i should not omit to notice references often made to the rights of labor1 the rights of capital1 property rights1 and personal rights1 as if they were different in their nature and importance4 ,i do not as yet see such difference4 ,all rights are personal rights1 and the right of each to control his labor1 his savings1 his person1 and his property is the same4 ,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 capital2 that1 whatever his greater need1 the right of one without property is superior to that of one who has property2 that the right to get is superior to the right to save4 ,it is also loudly proclaimed that property rights are of little importance compared with human rights1 unmindful of the truth that the right of acquiring1 possessing and defending property is1 as much as any other1 a human right and1 as such1 necessary to be maintained if the race is to rise above its primitive condition of poverty4 ,however1 ,i do not see that the differences1 if any1 affect the general question of individual rights4 ,the conclusion ,i arrive at is this3 ,society1 and with it the race1 cannot survive unless it restrains to some extent individual freedom of action1 nor can any particular society long survive if it carry that restraint too far4 ,it should1 therefore1 ascertain and maintain the line1 the equilibrium1 between necessary freedom and necessary restraint4 ,it is only by such action of society that justice can be established and the welfare of the race be advanced4 ,this brings us to the question of how and by what instrumentalities society can best perform this momentous task1 the securing of justice4 ,this will be considered in the next chapter4 ,,chapter ,v ,,justice ,,can ,,be ,,secured ,,only ,,through ,,governmental ,,action4 ,,the ,,best ,,form ,,of ,,government ,in the present state of civilization society cannot act effectively for determining and maintaining the line1 the equilibrium1 between necessary freedom and necessary restraint1 or in short1 justice1 except through some governmental organization with power to define and enforce4 ,appeals to altruistic sentiments will not suffice4 ,this truth was recognized by the framers of our federal and many state constitutions1 in naming first among the purposes of government the establishment of justice4 ,any government1 however1 or rather those entrusted with its administration1 may through mistake or wilfulness do injustice to some of its subjects4 ,it has often done so in the past and the future is not free from the danger4 ,the very possession of power excites a desire to use it1 and it is an admitted characteristic of our human nature that those vested with power1 political or other1 are prone to exercise it unduly1 to abuse it4 ,men in authority are often said to be drunk with power4 ,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 limits4 ,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 there4 ,in later years1 however1 the superiority of our system is questioned1 and radical changes are urged1 and indeed some have been made1 in the federal system and in that of some of the states4 ,i feel1 therefore1 that ,i should make some defense of the system1 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 number1 or1 in other words1 best adapted to secure justice4 ,it has become a familiar maxim that the functions and powers of government may all be grouped in three classes or departments1 corresponding to the duties already named3 7#a7 that of determining what rules and regulations should be observed1 what restraints and duties should be imposed upon its subjects2 7#b7 that of determining whether in a given case any of these rules1 etc41 have been violated2 and 7#c7 that of punishing their violation and otherwise enforcing their observance4 ,these three groups have come to be called the three powers of government and to be designated as the legislative1 judicial1 and executive1 though they are usually named in another order as the executive1 legislative1 and judicial4 ,the most efficient form of government for good or evil1 and the quickest to act1 is undoubtedly that in which all of these powers are united in a single individual4 ,if that individual were always strong1 yet peace-loving1 self-controlled1 sagacious and exclusively devoted to the welfare of his subjects1 that form of government would perhaps secure them justice most surely and speedily4 ,such men1 however1 are rare and such governments have been found to be invariably and almost inevitably arbitrary in their dealings with their subjects1 and in the plenitude of their power to become oppressive4 ,while they may effectually protect their subjects from foreign aggression and domestic anarchy1 their tendency is to impose burdens and restrict individual liberty more than necessary1 and to disregard the innate desire of men for liberty or at least for equality of restraint4 ,this form of government has already largely disappeared and is further disappearing1 though it may again be resorted to for the restoration of order1 should the present forms of government fail to prevent violence and preserve the peace4 ,but other forms of government have not been and are not yet wholly free from the same objectionable tendency4 ,the vesting of all these governmental powers in a group or class of persons instead of one person has been followed by the same results4 ,aristocracies or oligarchies have the same tendency and even in a greater degree4 ,they have proved even more selfish and tyrannical than the single ruler4 ,they1 like all crowds1 are less sensitive in conscience1 less moved by appeals to reason1 than is the single individual4 ,they offend more the sentiment of equality4 ,the ,french ,revolution was not so much against the king as against the nobility1 who with their oppressive feudal exemptions had excited the resentment of the people at large4 ,it was not till after he had cast in his lot with the emigrs that the king was deposed and guillotined4 ,nor have pure democracies1 in the few instances where they have undertaken to exercise directly all the powers of government1 showed less tendency to be arbitrary and inconsiderate of individual freedom and desires4 ,the nearest approach to such a government was that of ancient ,athens where the populace sent into exile1 practically without trial1 ,aristides1 called the ,just1 ,miltiades1 the victor of ,marathon1 and ,themistocles1 the victor of ,salamis4 ,the excesses of the ,paris ,commune of #ahgj during its reign1 the lynchings of today by mobs of so-called respectable citizens who assume the power to accuse1 judge and execute all at once1 indicate how much regard unrestrained democracies would have for the rights of their individual members4 ,nevertheless1 despite the danger of more or less arbitrariness1 of more or less oppression of the individual1 any government must be made strong enough perfectly to maintain order and peace among its subjects4 ,order is earth's as well as heaven's first law4 ,the goddess ,themis in the early ,greek mythology was the goddess of order as well as the supplier of themistes or decisions4 ,she was present as the spirit of order in the councils of gods and men4 ,the government that cannot or will not maintain order and peace1 prevent violence and fraud1 enforce individual rights and redress individual wrongs completely and promptly1 is so far a failure and whatever its form should be reformed or overthrown4 ,even military despotism is better than disorder4 ,on the other hand1 there must be taken into account the tendency1 already mentioned1 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 control1 where not restrained by affection or like virtues4 ,under all governments there has been more or less friction between the persons governing and those governed2 more or less strife1 sometimes culminating in rebellion and even revolution4 ,if it be said that under a government by the people directly1 a pure democracy1 such as seems to be advocated at this day1 there would be no distinction between governors and governed1 that all would be governors and governed alike1 the answer is that in a pure democracy the governing power is and can be exercised by only a part of the people1 a majority it may be1 but still only a part4 ,this part are the governors4 ,the other part1 perhaps nearly as numerous1 are governed4 ,friction and even factious strife would still exist4 ,indeed1 a government by a pure democracy ruling directly would probably be more arbitrary than any other1 as was the case in ,athens4 ,the government by one1 or that by a few1 would be restrained to some extent by public opinion1 would refrain from extreme measures lest they excite effectual resistance1 but a majority would feel no such restraint4 ,it would itself constitute public opinion and it would be less likely to fear resistance4 ,it is evident1 therefore1 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 subjects4 ,i assume that no sane man would desire to live under any government where the wielders of the governmental power1 one or many1 are entirely without legal restraint4 ,we all desire normally1 not only order and peace1 but also personal liberty and equality of rights4 ,the problem1 then1 is how to order the frame of government so that it shall be strong enough to protect us individually as well as collectively1 but not left able to oppress us or any of us4 ,as said by ,alexander ,hamilton1 we must first enable the government to control the governed1 and in the next place oblige it to control itself4 ,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 powers1 entrusting each of the three to a different person or group of persons1 or1 in other words1 to a different department1 each restraining the other departments from exceeding their defined powers1 so that the government1 however democratic1 shall not run wild4 ,at this day1 however1 even this feature of our form of government is assailed as hampering the people and their government and greatly delaying desired reforms4 ,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 realization1 but1 on the other hand1 it is less liable to act too hastily1 less liable to act arbitrarily1 or to disregard individual rights and interests4 ,the idea of a division of governmental powers is not of recent origin4 ,aristotle argued that the judges should have no other political power1 should not themselves enforce their decisions4 ,in ,rome under the ,republic there was divided between the pretor and the judex the power to decide controversies4 ,the pretor had other duties1 but the judex was confined to the single duty to hear and determine4 ,the framers of our ,federal ,constitution and of our early state constitutions did not act hastily nor unadvisedly4 ,as heretofore stated1 the long controversy with ,great ,britain over the relations between that country and her ,colonies1 the arbitrary acts of the ,british ,king and ,parliament1 caused in the ,colonies a profound study of the nature of government3 what should be its purposes and how best to effect its purposes and avoid its abuses4 ,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 philosophers4 ,they were acquainted with the arguments of ,montesquieu and others that a separation of the powers of government and the vesting of each1 the executive1 legislative1 and judicial1 in different hands was essential to liberty4 ,they did not merely theorize1 however4 ,they had themselves lived and labored under governments not thus divided in functions or only partially so4 ,colonial governors had assumed legislative functions in the promulgation of ordinances1 and also judicial functions as judges of probate and in other ways4 ,the colonial legislatures did not hesitate to dictate to the courts in particular cases and often acted as a court of appeal4 ,in ,massachusetts ,bay the legislature came to be known as the ,general ,court and exercised judicial power freely1 sometimes calling in the judges to sit with them4 ,the same individual could at one and the same time fill an executive and a legislative or judicial office4 ,in colonial ,massachusetts ,william ,stoughton held the offices of military commander1 lieutenant governor1 and chief justice at the same time4 ,because of the frequent and prolonged absences of the titular governor he was often the acting governor4 ,as an inevitable consequence1 when sitting as a judge he was more a zealous prosecutor than an impartial judge4 ,his conduct in the witchcraft trials was comparable to that of ,jeffreys in the infamous ,bloody ,assizes4 ,hutchinson was also often acting governor while holding his commission as chief justice4 ,in view of their experience and deep study1 the opinions formed by the framers of the early constitutions of this country should be of great weight in forming our own4 ,it is worth while to cite the opinions of some4 ,thomas ,jefferson was not in his day1 nor has he been since1 regarded as opposed to popular government4 ,virginia had as early as #aggf declared in its first constitution that the three great departments should be kept separate4 ,jefferson1 who besides his other opportunities of observing the operation of government was himself chief magistrate of the state1 criticized that constitution as not making such separation effectual4 ,in his ,notes on ,virginia he wrote of it3 ,all the powers of government1 legislative1 executive and judiciary1 result to the legislative body4 ,the concentrating these in the same hands is precisely the definition of despotic government4 ,it will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one4 ,one hundred and seventy-three despots would surely be as oppressive as one4 ,let those who doubt it turn their eyes on the republic of ,venice4 ,as little will it avail us that they are chosen by ourselves4 ,an elective despotism was not the government we fought for1 but one which should not only be founded on free principles1 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 others4 ,for this reason the convention which passed the ordinance of government laid its foundation on this basis1 that the legislative1 executive and judiciary departments should be separate and distinct1 so that no person should exercise more than one of them at the same time4 ,but no barrier was provided between these several powers4 ,it was this defect1 this lack of barriers1 that ,jefferson lamented4 ,when the draft of the ,federal ,constitution of #aghg was submitted to the states1 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 distinct4 ,in reference to this objection ,madison wrote in the ,federalist3 ,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 founded4 ,the accumulation of all powers1 legislative1 executive1 and judiciary1 in the same hands1 whether of one1 few1 or many1 and whether hereditary1 self-appointed1 or elective1 may justly be pronounced the very definition of tyranny4 ,were the ,federal ,constitution therefore really chargeable with this accumulation of powers1 or with a mixture of powers having a dangerous tendency to such an accumulation1 no further argument would be necessary to inspire a universal reprobation of the system4 ,he elsewhere declared the maxim to be a fundamental article of liberty4 ,hamilton was apprehensive of danger to liberty from the legislative department and favored a strong executive to guard against it4 ,he declared in the ,federalist that the legislative department was everywhere extending the sphere of its activity and drawing all power into its impetuous vortex1--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 usurpation4 ,washington in his ,farewell ,address1 after much experience with1 and observation of1 legislative action1 said3 ,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 modern1 some of them in our own country and under our own eyes4 ,to preserve them must be as necessary as to institute them4 ,after having lived for generations under governments in which there was no effective division of powers1 the people of the various colonies in setting up their own governments at the time of the ,revolution very generally declared for such division1 in more or less explicit terms4 ,even in the few cases where the division was not expressly made1 it was implied in the constitution4 ,the provision in the constitution of ,massachusetts adopted in #aghj may be cited as an example of the strength of the conviction4 ,in the government of this ,commonwealth the legislative department shall never exercise the executive and judicial powers or either of them2 the executive shall never exercise the legislative and judicial powers or either of them2 the judicial shall never exercise the legislative and executive powers or either of them4 ,to this provision were appended1 as the reason for it1 the memorable words1 ,to the end that it may be a government of laws and not of men4 ,from #aggf to the present century as new states were formed their people in most instances have adopted similar provisions4 ,perhaps the people of ,maine when they separated from ,massachusetts in #ahbj 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 departments4 ,of course some exceptions to the rule are necessary and these are usually named in the constitution itself4 ,again the dividing line between the powers cannot always be precisely defined and1 further1 each department in the performance of its own proper functions may sometimes be obliged to exercise a power strictly pertaining to another department4 ,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 on4 ,it is true we should not fear to question the wisdom of our fathers1 but conclusions they have arrived at in matters of government after long study1 observation1 and actual experience should not be disregarded unless their error can be clearly demonstrated4 ,,chapter ,,vi ,,the ,,necessity ,,of ,,constitutional ,,limitations ,,upon ,,the ,,powers ,,of ,,the ,,government4 ,,bills ,,of ,,rights ,it should be evident that the division and distribution of governmental powers among different depositaries will not alone prevent encroachments by the governing power upon the liberty of the subject4 ,the executive department in performing only executive functions can1 in the absence of other checks1 act oppressively4 ,the legislative department1 especially1 without exceeding the legislative function1 can in many ways and in excessive degrees oppress the individual by unnecessary restrictions of personal liberty1 by unnecessary exactions1 by arbitrary discriminations4 ,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 interests1--who will regard themselves not as mere delegates or proxies1 but as representatives1 like the directors of a corporation1 to form and act upon their own judgment after investigation and reflection4 ,experience has shown1 however1 that members of the legislature do not always nor generally act upon that theory4 ,they seem to be inoculated with the bacillus of irrepressible activity1 the desire continually to be proposing new laws1 new restrictions1 new exactions4 ,if the laws enacted prove difficult of enforcement by reason of their interference with what individuals feel to be their rights1 then new and oppressive methods of enforcement are devised1 still further restricting liberty and equality4 ,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 proposed4 ,further1 the members of the legislature are beset by constituents and others to favor legislative measures for their own special benefit1 or that of their association1 or of their locality4 ,one result is that during every legislative session the ordinary citizen is dreading oppressive legislation and feels relieved when the session is over4 ,when we consider the wide1 almost unlimited range of the legislative function1 and the power and tendency of legislatures to push that function to the extreme1 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 action4 ,if it be said that public opinion is sufficient restraint1 the answer is that in a democracy1 or in a republic with universal suffrage1 the efficient public opinion is practically that of the majority of the electorate1 and it is an acknowledged truism that the unrestrained majority is even more likely than the few to be oppressive of the individual4 ,the opinion of the many is more variable than that of the few1 more likely to be swayed by sympathy1 prejudice1 and other emotions4 ,indeed1 public opinion sometimes induces legislatures to enact laws which they themselves feel to be unwise and tyrannical4 ,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 contrary1 then in order to secure justice those possessing the powers of government should be restrained from any acts infringing those liberties and rights2 for1 as already stated1 justice consists in the equilibrium between restrictions necessary for the welfare of the whole people without discrimination1 and the freedom of the individual to serve his own welfare4 ,i think there are such liberties and rights4 ,the subjects of ,king ,john in the #acth century thought so and compelled the king to guarantee by the ,magna ,charta that certain specified rights and liberties should not be infringed4 ,again1 the subjects of ,charles ,i in the #agth century had a similar conviction and expressed it in the ,petition of ,right1 which named some liberties and rights not to be infringed4 ,the king assented to that much limitation of the royal power4 ,in the same century1 upon the accession of ,william and ,mary1 a ,bill of ,rights was framed and enacted into law by ,king and ,parliament1 naming liberties and rights of the subject which ought not to be abridged4 ,succeeding ,kings and ,parliaments seem to have respected the provisions of this ,bill of ,rights in their legislation for ,british subjects4 ,had they conceded the claim of the people of the ,american ,colonies that they also were protected by its provisions1 the course of our political history might have been different4 ,as it was1 however1 the ,british government practically held that neither ,magna ,charta1 the ,petition of ,right1 nor the ,bill of ,rights restrained it in its dealings with the ,colonies1 and this in despite of the protests of some of its most eminent statesmen4 ,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 charters4 ,so bitter was their experience that1 when the people of the various ,colonies came to frame constitutions for a government of the people1 by the people1 and for the people independent of the ,british crown and all other external authority1 they very generally insisted that even such a government should have its powers defined and limited1 that some rights of the individual should be specified which the government should not infringe nor have the lawful power to infringe4 ,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 government4 ,the first step of the representatives of the people of ,virginia toward a declaration of independence of the ,british crown1 and the setting up an independent government1 was the adoption of a declaration of rights in the individual which no government should infringe4 ,this was adopted and promulgated sometime before the constitution proper was framed4 ,the statement was declared to be necessary in order that the government might be effectually secured against maladministration4 ,similar limitations upon the powers of the government were imposed in the early constitutions of ,massachusetts1 ,new ,hampshire1 ,new ,jersey1 ,delaware1 ,pennsylvania1 ,maryland1 ,north ,carolina1 and ,south ,carolina2 also in the first constitution of ,connecticut in #ahah1 and in the first constitution of ,rhode ,island in #ahdb4 ,the people of ,new ,jersey in #ahdd made the limitations more definite1 and the people of ,maryland imposed additional limitations in #ahfd4 ,the people of ,new ,york did not in their first constitution of #aggg expressly in terms guarantee individual rights1 but they impliedly did so by making the ,declaration of ,independence the preamble1 and in their constitution of #ahba they incorporated an explicit statement of individual rights not to be infringed4 ,the example of the original states in this respect has been followed by most of the subsequent states of the ,union4 ,in #aggh a convention chosen to draft a constitution for ,massachusetts submitted a draft to the people1 who rejected it by a large majority mainly because it did not contain a ,bill of ,rights4 ,to quote from ,harry ,a4 ,cushing1 a writer on the ,history of ,commonwealth ,government in ,massachusetts1 ,no demand was more general than that for a ,bill of ,rights which should embody the best results of experience4 ,in #aghj a second convention submitted another draft of a constitution containing the famous ,massachusetts ,declaration of ,rights1 and this the people adopted by a majority of more than two to one4 ,the only objection urged against the ,declaration of ,rights was that it did not go far enough4 ,in the convention that drafted the ,federal ,constitution it was strongly urged that a ,bill of ,rights should be incorporated in the draft1 but it was deemed1 by the majority at least1 unnecessary and even dangerous to make a specific declaration of individual rights1 inasmuch as the federal government contemplated was in its very nature limited to such powers as were expressly1 or by necessary implication1 conferred by the ,constitution1 and hence to specify certain things the government should not do might be construed as permitting it to do anything not so specified4 ,this argument prevailed and the draft submitted to the states contained no ,bill of ,rights4 ,immediately1 however1 a storm of objections was raised against it because of the omission4 ,despite the arguments of ,hamilton and ,madison that a ,bill of ,rights was unnecessary1 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 government4 ,the necessary amendments1 therefore1 were submitted at the first session of the new ,congress and were unanimously adopted by the states4 ,other limitations have since been imposed1 notably those in the ,x,i,vth amendment1 assuring to every citizen equal consideration in legislation by the states4 ,by the ,federal ,constitution as it now stands the citizen1 in time of peace at least1 is guaranteed1 among other matters1 the protection of the writ of habeas corpus2 freedom from bills of attainder and ex post facto legislation2 freedom of religious belief and worship2 freedom of thought and its expression2 freedom peacefully to assemble with others and petition for redress of grievances2 freedom from unreasonable searches and seizure2 the right not to be prosecuted for infamous crimes except first accused by a grand jury2 the right in all criminal prosecutions to a speedy and public trial by an impartial jury1 to be confronted with the witnesses against him and to have assistance of counsel2 that he shall not be deprived of life1 liberty1 or property without due process of law2 that his private property shall not be taken from him even for public use without just compensation2 that the obligations accruing to him under lawful contracts shall not be impaired2 that he shall not be denied the equal protection of the laws4 ,the guarantees in the state constitutions are generally of the same nature4 ,it is difficult to see how any of these guaranties1 or such other guaranties as may be contained in the federal and state constitutions1 prevent legislative or executive action necessary for the welfare of the people generally4 ,there is certainly an ample field for such action without overstepping these boundaries4 ,nevertheless1 it is today urged by some impulsive persons1 eager to impose their theories on the people at once1 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 action4 ,others who do not go so far1 yet urge that the majority should be free to suspend these guaranties temporarily or in some particular classes of cases4 ,against this opinion ,i submit that after so many centuries of experience of the tendency of all governments to enlarge their powers over the subject1 and of struggles to limit the powers of government over private rights and to protect the individual from governmental oppression1 the burden of evidence and of argument is heavily on those who would now advocate unlimited powers even for the most democratic government4 ,a government directly by the people is of course in practice a government by a shifting and often narrow majority of the people4 ,it is not yet demonstrated by experience or reason that such a government1 unlimited1 would be as regardful of individual rights or welfare as a republican form of government with its checks and balances and constitutional restrictions4 ,the excesses of the unlimited democracies of ancient ,greece and of the unrestrained democracy of ,france during and after the revolution of #aghi and the lynchings in this country do not contribute to such demonstration4 ,it is not those who defend our present form of government with its constitutional guaranties1 who resist political action tending to weaken them1 that should be called unprogressive1 undemocratic1 or wanting in love of country4 ,those of our ancestors1 ,english and ,american1 who fought for these guaranties1 who obtained them only after years of strife1 who incorporated them in our federal and state constitutions and safeguarded them against the varying impulses of the populace1 were not unpatriotic nor unmindful of the welfare of the people1--were not indifferent to human liberties or human rights4 ,neither are they such who today strive to preserve those guaranties won at such expense of blood and treasure4 ,on the contrary1 it is those who would override these guaranties and revert to the old days of unlimited governmental power1 that are the reactionaries4 ,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 people1 but while action in violation of these limitations might benefit its sponsors it would necessarily be at the expense of others4 ,those who seek such legislation against others would quickly appeal to these limitations if legislation were directed against themselves4 ,the noisiest declaimers against these guaranties fall back for protection upon the constitutional guaranty of freedom of speech4 ,so long as these barriers are maintained every individual1 no matter how poor and feeble1 will be1 theoretically at least1 secure in some rights against the attacks of the many4 ,without such barriers every individual is at the mercy of an inconstant majority4 ,without such barriers justice cannot be said to be secured4 ,lord ,treasurer ,burleigh of ,queen ,elizabeth's time declared that ,england could never be ruined by its kings1 but only by its ,parliament4 ,if the safeguards of the federal and state constitutions are maintained1 neither ,congress nor the state legislatures can ruin ,america4 ,if the ,american people should ever consent to the removal of these safeguards they would give evidence of their want of self-restraint1 of their unwillingness and even incapacity to govern themselves1 and would pave the way for the man on horseback as the ,french ,revolution paved the way for ,napoleon4 ,to deprive a single one of his rightful liberty is to endanger the liberties of all4 ,,chapter ,,vii ,,the ,,interpretation ,,and ,,enforcement ,,of ,,constitutional ,,limitations ,,necessarily ,a ,,function ,,of ,,the ,,judiciary ,under our federal and state form of government the question naturally arises where should be lodged the power to determine whether in a given instance either department has encroached on the proper field of any other department1 and whether either department has encroached on the constitutional rights of the individual citizen4 ,it should be evident that neither the executive nor the legislative department is a fit depositary of such power4 ,both these1 from the nature of their powers1 are aggressive4 ,they act of their own volition4 ,they initiate proceedings and measures to carry out policies4 ,in their activities they are apt1 consciously or unconsciously1 to overstep the boundary lines between the departments and also the limits set for the protection of the citizen against such activities4 ,again1 questions may and often do arise between the government and the individual citizen that are not political questions1 but are questions of private right1 the right of the individual against the government4 ,the disputants are the individual citizen or group of citizens on the one hand1 and the government on the other whether that government be a monarchy1 a republican or representative government1 or a pure democracy4 ,in such case it would seem clear that one party should not have the power to decide the question4 ,it is an axiom that neither party to a controversy should be the judge in the matter4 ,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 constitution1 should not be the judge of the question any more than should the complaining citizen4 ,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 rights4 ,even if a statute be enacted or ratified by the people directly1 under the modern initiative and referendum1 and a citizen claims that the statute deprives him of some right guaranteed by the constitution1 the people should not be the judge2 much less should a majority4 ,if the individual is left to be the judge of his constitutional or legal right as against the government1 the result would be anarchy4 ,if the government1 even the most popular government1 is to be the judge1 the result would often be tyranny4 ,there would be occasions1 as there have been1 when an excited people or majority would tyrannize over the individual1 indeed over the minority4 ,to secure alike the people against anarchy and the individual against tyranny1 power must be vested in some impartial1 independent arbiter to determine authoritatively and finally the relative rights and duties of each under the constitution4 ,the proper department to be made the depositary of this important power would seem to be the judicial4 ,that department does not initiate1 has no policies1 does not act of its own volition1 but acts only when its action is regularly invoked in some controversy and then only to end that controversy4 ,it may seem unnecessary even to state1 much less defend1 the proposition1 but as its logical result is that the judiciary when invoked by the individual must refuse effect1 so far as he is concerned1 to a legislative act which deprives him of some right guaranteed by the constitution1 and must thus disappoint those who procured the passage of the act1 the proposition has been1 is still being1 denied4 ,the action of the courts in exercising that power has been and is even now denounced as usurpation4 ,though the proposition is now long established1 these attacks justify some repetition of the argument in its support4 ,the logic of ,chief ,justice ,marshall in ,marbury v4 ,madison1 #a ,cranch #acg at p4 #agf1 seems to me irresistible and worthy of frequent quotation despite the attacks upon it4 ,the ,chief ,justice said3 ,this original and supreme will 7of a people7 organizes the government and assigns to different departments their respective powers4 ,it may either stop here1 or establish certain limits not to be transcended by those departments4444 ,the government of the ,united ,states is of the latter description4 ,the powers of the legislature are defined and limited2 and that those limits may not be mistaken or forgotten1 the ,constitution is written4 ,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 restrained8 ,the distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed1 and if acts prohibited and acts allowed are of equal obligation4 ,it is a proposition too plain to be contested1 either that the ,constitution controls any legislative act repugnant to it1 or that the legislature may alter the ,constitution by an ordinary act4 ,between these alternatives there is no middle ground4 ,the ,constitution is either a superior1 paramount law unchangeable by ordinary means1 or it is on a level with ordinary legislative acts1 and1 like other acts1 is alterable when the legislature shall please to alter it4444 ,certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation1 and consequently the theory of every such government must be that an act of the legislature repugnant to the ,constitution is void4 ,in #ahbe that eminent jurist1 ,chief ,justice ,gibson of ,pennsylvania1 in a dissenting opinion in ,eakin v4 ,raub1 #ab ,s4 ,r4 #ccj1 insisted in an able1 elaborate1 and exhaustive argument that while the judiciary was bound to refuse effect to a state statute in conflict with the ,federal ,constitution1 it was bound to give it effect if repugnant only to the state constitution4 ,he frankly admitted the logical conclusion that in such case the only remedy the citizen had to enforce his constitutional rights was that of revolution4 ,when1 however1 his opinion in ,eakin v4 ,raub was cited in #ahde in argument in ,norris v4 ,clymer1 #b ,pa4 ,st4 #bgg1 he said he had changed his opinion on that question1 partly from experience of the necessity of the case4 ,in the later case1 ,de ,chastellux v4 ,fairchild1 #ae ,pa4 ,st4 #ah1 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 constitution4 ,in delivering the opinion of the court he used this vigorous language3 ,it is idle to say the authority of each branch 7of the government7 is defined and limited in the constitution1 if there be not an independent power able and willing to enforce the limitations4444 ,from its very position it is apparent that the conservative power is lodged with the judiciary1 which in the exercise of its undoubted right is bound to meet every emergency4 ,the results of the contrary doctrine are well stated by the same court in ,perkins v4 ,philadelphia1 #aef ,pa4 ,st4 #eed4 ,if laws in conflict with the constitution be passed by the legislature1 approved by the governor and sustained by the court1 that is revolution4 ,it is no less revolution because accomplished without great violence4 ,it matters little to the house owner whether the structure built to shelter him be blown up by dynamite1 or the foundation be pried out stone by stone with a crowbar4 ,in either case he is houseless4 ,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 person1 not in the military or naval service1 the right to test in the judicial courts the authority of any official to interfere with his person1 liberty1 or property1 whatever authority1 executive or legislative1 the official may plead4 ,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 triable1 at least at the pleasure of the executive1 only in administrative tribunals1 that is1 courts pertaining to the executive department and instituted to assist that department in the performance of its functions4 ,the aggrieved individual can only apply to the superiors of the official complained of4 ,such tribunals naturally incline to uphold the authority claimed1 and indeed can lawfully allow the plea that the act complained of was ordered in pursuance of some executive policy4 ,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 sabre4 ,the victim could only appeal to the officer's military superiors1 who acquitted the offender on the ground that the dignity of the military must be protected4 ,in the ,united ,kingdom1 while at present1 as for centuries1 the individual can appeal to the judicial courts against officials acting under any executive or legislative orders1 ,parliament1 and even a majority of the ,house of ,commons1 can at any time deprive him of that right4 ,in this country the executive and legislative departments combined have no such power4 ,so long as our present system is maintained1 questions between government officials and individuals must remain cognizable by the judicial courts where the private citizen is on a par with the highest official1 and the single individual is on a par with the government itself4 ,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 military4 ,they were free to apply1 and did apply1 to tribunals outside of and independent of the executive4 ,they and such as they should be the most unwilling to degrade the courts or lessen their power4 ,a similar instance is that of the striking miners in ,colorado who so loudly complained of the acts of the militia4 ,they were not obliged to appeal to military or executive officers for redress4 ,the ,judicial ,courts were as open to them as to any others and there they would be upon an equality with the officials4 ,,chapter ,,viii ,,an ,,independent ,,and ,,impartial ,,judiciary ,,essential ,,for ,,justice ,for the judiciary to be in fact1 as well as in theory1 the protector of the constitutional rights of the individual against the government1 and of the legal rights of the individual against the aggressions of others1 it should be made so far as possible free1 impartial and independent4 ,the judges should have such security of tenure1 and such security and liberality of maintenance1 that they will have no occasion nor disposition to court the favor1 or fear the disfavor1 of any individual or class however powerful or numerous1 not even the government itself4 ,they should be made free to consider only what is the truth as to the existing law or fact in question1 uninfluenced by any suggestions of what is demanded by prince1 people1 or individual1 or by any suggestion of consequent good or evil to themselves4 ,this proposition to my mind is so self-evident that quotations from eminent philosophers cannot strengthen it4 ,the necessity of some independent tribunal between the governors and the governed was recognized in republican ,rome1 where it was provided that the persons of the tribunes should be inviolate1 an immunity not granted to any other officials4 ,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 interests4 ,when1 however1 the empire supplanted the republic in ,rome1 and the free cities of ,italy were made subject to despotic domination1 the independence of these tribunals was lost4 ,history shows that those possessing the governmental power have always been unwilling to maintain an independent judiciary4 ,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 country4 ,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 crown4 ,charles ,i assented to the ,petition of ,right and promised to observe it1 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 ,petition4 ,consequently1 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 ,right1 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 thereof4 ,again1 the legality of the imposition by the king of the ship money tax without the consent of ,parliament was hopelessly questioned4 ,the king procured from the judges an opinion that he could lawfully impose such a tax without awaiting the assent of ,parliament1 when necessary for the defense of the kingdom1 and that he was the judge of the necessity and proper amount of the tax4 ,but this was not the opinion of an independent judiciary4 ,the judges at that time could be promoted1 removed1 or recalled at any time at the king's sole pleasure1 and they well knew the king's obstinate insistence in the matter4 ,their opinion simply gave expression to the king's will1 and hence inspired no respect4 ,finally1 for want of an independent tribunal empowered to determine authoritatively between king and subject the true intent of the ,petition of ,right1 the legal extent and limitation of the royal power1 the lawfulness of its exercise upon the subject in a given case1 the issues between them had to be submitted to the arbitrament of civil war1 with the result that the monarchical system of government was overthrown4 ,its successor1 an unchecked parliament1 was no less arbitrary in many of its acts1 and was in turn overthrown and the monarchy restored4 ,the restored dynasty1 however1 obeying the impulse of all possessors of governmental powers1 soon began again to claim and exercise autocratic power1 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 resistance1 and also to suspend the operation of the laws at his pleasure4 ,unfortunately again there was as yet no impartial1 independent tribunal in ,england to determine authoritatively the line between the royal power and the specified rights of the subject4 ,the judges were still removable at the king's sole pleasure4 ,james ,,ii did not hesitate to use this power to obtain such opinions and decisions as he desired4 ,preparatory to the trial of the ,quo ,warranto case against the ,city of ,london to procure the forfeiture of its charter1 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 ,bench4 ,the case of the city was thereby made hopeless and the city itself helpless4 ,in the case of the ,seven ,bishops1 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 ,indulgence1 he seems to have felt tolerably sure of the court as it was already constituted4 ,two able and learned justices1 however1 ,holloway and ,powell1 ventured the opinion that the petition was not libelous4 ,they were both promptly recalled4 ,again force had to be used to free the subject and maintain his rights and liberties against the sovereign4 ,james ,,ii was driven from the country and ,william of ,orange called to the throne4 ,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 liberties4 ,in a new instrument1 this time called a ,declaration instead of a ,petition1 they reiterated the rights of the subject as twice before they had been formally asserted in the ,magna ,charta and the ,petition of ,right4 ,this instrument1 known as the ,declaration of ,rights of #afhh1 was presented to ,william and ,mary1 who solemnly engaged to observe and maintain its provisions4 ,further still 7and this was the new and effective guaranty of the subject's rights71 in the ,act for the settlement of the crown it was enacted by king1 lords1 and commons that thereafter the judicial tenure of the judges of the courts should be during good behavior4 ,since that time for more than two centuries the true intent of the laws has been determined1 not by king or parliament or people1 but by a judiciary made strong and independent4 ,there has been no need to resort to force to defend the legal rights of the subject4 ,but this security for individual rights and liberties was not extended to ,british subjects in ,america4 ,after the ,colonies had so increased in population and wealth that they were deemed worth exploitation1 the government1 among other means of controlling them1 took over the appointment of their judges1 in many instances with a tenure during the government's pleasure only4 ,in the circular letter of ,massachusetts ,bay ,colony to the other ,colonies in #agfh 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 subjects4 ,one of the counts in the indictment of ,july #d1 #aggf1 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 salaries4 ,as a consequence of this experience with a judiciary dependent on the governing power for the tenure and maintenance of its judges1 the ,colonies when they set up independent governments of their own provided a fixed tenure for their judges in every instance but one4 ,connecticut in its first constitution made the tenure during good behavior1 as did ,delaware1 ,maryland1 ,massachusetts1 ,new ,hampshire1 ,north ,carolina1 ,south ,carolina1 and ,virginia4 ,pennsylvania at first fixed the tenure at seven years1 but in #agij changed it to good behavior4 ,the same tenure was fixed for the federal judges in the ,federal ,constitution4 ,in some instances also1 further provision was made for the independence of the judges by forbidding the diminishing of their salaries during their term of office4 ,the people of ,massachusetts1 which had been the most harried of the ,colonies1 declared emphatically the necessity for an independent judiciary4 ,article ,,xxix of the ,massachusetts ,declaration of ,rights adopted in #aghj is as follows3 ,it is essential to the preservation of every individual1 his life1 liberty and property and character that there be an impartial interpretation of the laws1 and administration of justice4 ,it is the right of every citizen to be tried by judges as free1 impartial and independent as the lot of humanity will admit4 ,it is1 therefore1 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 well2 and that they should have honorable salaries ascertained and established by standing laws4 ,new ,hampshire1 with a similar experience1 adopted the same language in ,art4 ,,xxxv of her ,bill of ,rights4 ,the ,maryland ,declaration of ,rights of #aggf contains this article3 ,art4 ,,xxx4 ,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 people2 wherefore the chancellor and judges ought to hold commissions during good behavior4 ,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 years4 ,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 individual4 ,majorities as well as absolute kings like their own way4 ,the change where made may have given majorities greater freedom to enforce their will upon individuals1 but it has not increased confidence in the integrity of the judges nor made them more firm to ascertain and declare only the truth4 ,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 legislature1 as was the practice in the early days of the republic4 ,i cannot think this has tended to secure better judges1 though it may have secured judges more subservient to majorities4 ,effectually to guard the constitutional and legal rights of all alike1 the judges should possess what is called the legal mind and the judicial temperament4 ,they should be able and learned that they may appreciate the real meaning1 purpose1 and scope of the constitution and statutes2 calm and equable in temperament that they may not be influenced by sympathy1 prejudice1 or other emotions2 strong and courageous in character that they may resist all pressure other than fair argument4 ,to find the men possessing these qualities requires extensive and protracted inquiry and patient consideration1 such as are not and cannot be exercised by the people directly4 ,the task should be deputed in the first instance to the head of the state1 the chief executive4 ,he has the best means of ascertaining who possesses the requisite qualifications in the greatest degree4 ,he would feel that he alone was responsible for a proper selection1 and that feeling of responsibility would tend to make him deliberate and painstaking in his choice4 ,on the other hand1 if the original selection be entrusted to the legislature or left with the people acting directly1 individual members would have a much lower sense of personal responsibility and the individual members of the electorate scarcely any at all4 ,true1 in those states where the judges are elected by the people directly1 excellent judges are often and perhaps ordinarily chosen1 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 weight4 ,such courts are certainly a greater protection to those guilty of no wrong1 but who have been so unfortunate as to incur the displeasure of an excited community4 ,nevertheless1 despite the lessons of history and the reasons contra1 it is proposed in this twentieth century that the tenure of the judges shall again be during pleasure only1--this time during the pleasure of the majority of the electorate4 ,the proposition is not stated so baldly by its proposers4 ,they phrase it as the right of the people to remove or recall unsatisfactory public servants1 whether judges1 or governors1 or other officials4 ,they propose that at the request of a certain small percentage of the electorate1 setting forth their dissatisfaction with a judge1 he may be removed by a majority of the voters4 ,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 ,parliament1 and to similar provisions in many of our state constitutions4 ,of course1 there should be lodged somewhere the power to remove judges proven to be unworthy of their high office1 or incapable of performing its high duties1 but it should be lodged in a body of men before whom the accused judge can appear in person or by counsel1 hear the complaints and face the witnesses against him1 and adduce evidence and argument in reply1--and who can on their part see the witnesses and hear the arguments before deciding4 ,that was the opinion of the ,british ,parliament in the few cases presented to them1 and the state legislatures in this country have generally entertained the same opinion4 ,it was also held by ,parliament that the address for removal should state the reasons therefor4 ,in #ahee ,governor ,gardner of ,massachusetts declined to remove a judge of probate on address by the legislature because no sufficient grounds were stated in the address4 ,he said that in every instance then on record full reasons for removal had accompanied the address4 ,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 legislature1 but that he might be removed for corruption1 neglect of duty1 incapacity1 immorality1 or other disgraceful conduct1 after notice1 hearing1 and deliberation4 ,for the executive and legislature1 or even the majority of the people1 to remove a judge because they do not like his opinions as to what the constitution requires or forbids them to do1 would destroy the independence of the judges and thus deprive the citizen of all security for his rights and liberties under the constitution1--would be despotism4 ,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 of4 ,the argument has little or no foundation in fact4 ,perhaps among the hundreds1 if not thousands1 of cases of holding a statute unconstitutional a few may seem to have been so decided because the judges thought them unwise and oppressive4 ,some expressions in judicial opinions have been unfortunate in that respect1 but the courts everywhere in this country1 now if not at first1 disclaim any such power4 ,the same ,chief ,justice ,marshall1 who had so convincingly stated the duty of the judiciary to refuse effect to unconstitutional statutes1 later in ,mc,culloch v4 ,maryland1 #d ,wheat4 #caf1 disclaimed for the courts all pretensions to any power to inquire into the necessity of any statute1 or in any way to interfere with the discretion of the legislature4 ,in strong and explicit language other courts have disclaimed such pretensions4 ,the ,minnesota court in ,state v4 ,corbett1 #eg ,minn4 #cde1 held that courts were not at liberty to declare a statute unconstitutional because it is thought by them to be unjust or oppressive1 or to violate some natural1 social1 or political right of the citizen1 unless it can be shown that such injustice is prohibited1 or such rights protected1 by the constitution4 ,the ,pennsylvania court in ,com4 v4 ,moir1 #aii ,pa4 ,st4 #ecd1 used this language3 ,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 passage4 ,with these we have nothing to do4 ,they are beyond our province and are considerations to be adduced solely to the legislature4 ,the court of ,west ,virginia in ,slack v4 ,jacob1 #h ,w4 ,va4 #fab1 said3 ,that the judges are convinced that a statute is contrary to natural right1 absolute justice1 or sound morality does not authorize them to refuse it effect4 ,the court of ,washington in ,fishing ,co4 v4 ,george1 #bh ,wash4 #bjj1 held that a statute cannot be ignored by the courts because leading in its application to absurd1 incongruous1 or mischievous results4 ,a few cases may also be cited showing how relentlessly this disclaimer is applied4 ,the court of ,new ,york in ,kittinger v4 ,buffalo ,traction ,co41 #afj ,n4 ,y4 #cgg1 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 motives4 ,the ,pennsylvania court in ,sunbury ,r4,r4 ,co4 v4 ,people1 #cc ,pa4 ,st4 #bgh1 had urged upon it the argument that the statute in question had been passed in fraud of the rights of the people4 ,the court held that1 if true1 that fact would not authorize it to refuse it effect4 ,the ,tennessee court in ,lynn v4 ,polk1 #gf ,tenn4 ,st4 #aba1 was asked to declare a statute ineffective because its enactment was procured by bribing members of the legislature4 ,the court held it could not do so4 ,the ,missouri court in ,slate v4 ,clarke1 #ed ,mo4 #ag1 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 morals4 ,the court held it had no such power4 ,the ,justices of the ,maine ,supreme ,court in an opinion reported in #ajc ,maine #ejh stated the principle as follows3 ,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 people2 and however inconvenienced1 restricted1 or even damaged particular persons and corporations may be1 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 them4 ,further1 it is a maxim of the judiciary1 from the beginning and now1 that no statute should be refused effect unless clearly contrary to some provision of the constitution1--unless the conflict is evident beyond a reasonable doubt4 ,this is a maxim1 a canon of interpretation1 that courts always have in mind and apply in considering the question of the constitutionality of a statute4 ,thus scrupulous are the courts to keep within their proper sphere1 to respect the limits of their powers4 ,if the legislatures would be equally scrupulous1 would themselves refrain from infringing on those rights and liberties of the citizen guaranteed by the constitution1 there would be less restriction1 less friction1 less turmoil1 less need of the judicial check1 less injustice4 ,but the complaints against the courts are not all because of their holding statutes unconstitutional4 ,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 active1 interested minorities more insistent than the inert majority4 ,the decision of the ,united ,states ,supreme ,court in the ,charles ,river ,bridge case1 #aa ,peters #dbj1 was mourned by such men as ,webster1 ,kent1 ,story1 and others as breaking down the safeguards of the constitution4 ,the decision in the ,slaughter ,house cases was regarded by many able jurists as ignoring that provision of the ,x,i,vth amendment to the ,federal ,constitution forbidding any denial to any one of the equal protection of the laws4 ,the ,elevator cases1 holding that elevators were public utilities and therefore subject to public control as to charges for service1 though the owners had no special franchise1 no part of public power1 are even now thought to have made a wide breach in the constitutional barriers against the invasion of private rights4 ,the decision in the ,chinese ,deportation cases1 #adi ,u4 ,s4 #fih1 shocked the sense of justice of many4 ,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 trial1 unless he could affirmatively prove to the satisfaction of a single judge 7to be selected by the executive71 and by a specified kind of evidence only1 that he was not guilty1 however ample and probative other evidence might be adduced and however impossible to produce the specified evidence4 ,justices ,fuller1 ,field1 and ,brewer vigorously dissented on the ground that such action by the executive1 though under the authority of ,congress1 was in violation of the constitutional guaranties against arrest without judicial warrant1 against deprivation of liberty without trial by jury and due process of law4 ,justice ,brewer after quoting ,madison1 that banishment is among the severest of punishments1 went on to say3 ,but punishment implies a trial4 ',no person shall be deprived of life1 liberty or property without due process of law4' ,due process of law requires that a man be heard before he is condemned1 and both heard and condemned in the due and orderly procedure as recognized by the common law from time immemorial4 ,in my research ,i have found more cases where it has seemed to me the courts have construed constitutional guaranties too strictly1 than where they have construed them too liberally4 ,the tendency has been rather away from the enforcement of constitutional guaranties and to allow legislative encroachments upon them4 ,i regard this as a very dangerous tendency4 ,perhaps the encroachments have not been at first perceived1 but ,i think courts should be vigilantly on the watch for them1 otherwise individual rights guaranteed to the people by the constitution may be gradually weakened and finally destroyed4 ,this duty of the courts was declared in the case of ,boyd v4 ,united ,states1 #aaf ,u4 ,s4 #faf at page #fda--where in refusing effect to a statute requiring the production of his books and papers by a defendant in proceedings for forfeiture1 the court said3 ,though the proceeding in question is devested of the aggravating effects of actual search and seizure1 yet it contains their substance and essence1 and effects their substantial purpose4 ,it may be that it is the obnoxious thing in its mildest and least repulsive form2 but illegitimate and unconstitutional practices get their first footing in that way1 namely1 by silent approaches and slight deviations from legal modes of procedure4 ,this can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed4 ,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 substance4 ,it is the duty of courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon4 ,their motto should be obsta principiis4 ,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 expediency1 of the general welfare1 or even of justice1 the judges rarely if ever oppose their opinion to that of the legislators4 ,the courts do not obstruct the current of progress2 they only keep it from overflowing its banks to the devastation of the constitutional rights of the people4 ,,chapter ,,ix ,,the ,,necessity ,,of ,,maintaining ,,undiminished ,,the ,,constitutional ,,limitations ,,and ,,the ,,power ,,of ,,the ,,courts ,,to ,,enforce ,,them4--,,conclusion ,despite the lessons of history showing the need of specified limitations upon the legislative power to ensure personal liberty and justice1 it is still urged by the impatient that this check upon legislative action should be removed1 or at least that the legislature should itself be the judge of the constitutionality of its acts1 and that the legislatures as the representatives of the people may be trusted to observe constitutional requirements and limitations4 ,from the beginning1 however1 the people of this country have not fully trusted their legislatures4 ,they have not only set bounds to legislative power1 but within those bounds they have imposed in most instances the check of an executive veto4 ,they have also complained of their legislatures far more loudly than they have of their courts1 and latterly have subjected them to the initiative and referendum and in some instances to the recall4 ,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 itself4 ,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 legislature4 ,it is common knowledge that1 in the past at least1 both law and fact have often been over-ridden for partisan advantage4 ,as an illustration of how far a legislature will sometimes go in this direction ,i may cite a recent instance in ,maine4 ,the constitution of that state provides 7,art4 ,,iv1 ,pt4 #c1 ,sec4 #aa7 that no person holding any office under the ,united ,states 7post officers excepted7 shall have a seat in either house of the legislature during his continuing in such office4 ,this provision was in the original constitution of #ahba1 and until the legislative session of #aiac 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 question4 ,in #aiac1 however1 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 state1 though no such officer had ever held a seat in the legislature4 ,that legislatures are prone to disregard constitutional provisions is also manifest in the vast amount of special legislation enacted despite constitutional prohibitions of such legislation4 ,there are also numerous instances where legislatures while perfunctorily heeding the letter of the constitution consciously violate its spirit and evade its requirements4 ,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 emergency1 which emergency1 however1 is to be declared in the act itself4 ,this provision1 of course1 is to give the people time to understand the statute and prepare to obey it4 ,the word emergency in the exception implies a sudden1 unexpected happening4 ,it is defined in ,webster as a pressing necessity2 an unforeseen occurrence or combination of circumstances which calls for immediate action or remedy4 ,in ,indiana in one legislative session1 out of #bjj acts1 #aee were made to take effect at once by a recital that an emergency existed therefor4 ,in ,illinois a two-thirds vote of all the members elected to each house is required for the adoption of the emergency clause4 ,among the acts of the last session containing the emergency clause was one appropriating #fjj for printing the report of a monument association4 ,in ,tennessee the exception was of cases where the public welfare required an earlier date4 ,out of #bfe laws passed at one session #bcj contained the declaration that the public welfare required their going into effect immediately4 ,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 thereon1 but that in cases of imperative public necessity four-fifths of the house may suspend the rule4 ,out of #aah laws passed at one session all but five contained the statement that imperative public necessity required suspension of the rule4 ,legislatures also seem prone to disregard the constitutional provision for the referendum despite the strong1 explicit language of that provision4 ,in ,california the constitutional provision is as follows3 ,no act shall go into effect until ninety days after the adjournment of the legislature which passed such act 444 except urgency measures necessary for the immediate preservation of the public peace1 health or safety1 passed by a two-thirds vote of all the members elected to each house4 ,surely the language of the exception is strong and forceful4 ,two-thirds of all the members elected to each house must hold that the measure is urgent1 not admitting of delay1 that the public peace1 health or safety1 not the mere interests or convenience of individuals or localities1 is threatened and that the danger is imminent1 requiring immediate action4 ,among other instances1 the legislature of ,california at its special session of #aiaa adjudged an act to validate certain defective registrations of voters in some municipalities to be an urgency measure within the language of the exception2 also an act to change the boundaries in a ,reclamation ,district4 ,oregon has a similar constitutional requirement and exception which its legislature does not always observe4 ,at the session of #aiaa1 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 exception2 also an act dividing a road district2 but an act appropriating money to guard against the bubonic plague was not declared to be within the exception4 ,in ,oklahoma with a similar constitutional provision and exception1 the legislature seems to have run riot4 ,at the session of #aiaj a very large proportion1 if not a majority1 of the statutes were adjudged to be within the exception4 ,among them was an act to pay the mileage and per diem of the members2 an act providing stenographers for the ,supreme ,court2 an act authorizing the sale of four tracts of land at public sale2 an act to pay ,j4 ,j4 ,o',rourke #bch4aj for room rent4 ,on the other hand1 an act to reimburse the ,governor #ejjj expended by him for state purposes1 and an act to reimburse a sheriff #djjj expended by him in the support of state prisoners were not so considered4 ,true1 ,oklahoma is a new and radical state1 but let us turn to the extreme east1 to ,maine with its heritage of law-abiding traditions from the parent state of ,massachusetts4 ,maine has also adopted the referendum in language similar to that in the ,california constitution1 including the exception4 ,the state had got along quite comfortably without making ,lincoln's birthday a legal holiday1 but in #aiji the legislature awoke to the imminent danger to the public peace1 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 review4 ,the town of ,eden1 in which is situated ,bar ,harbor1 a summer resort1 had by vote for sometime excluded automobiles without any apparent danger to the public peace1 health or safety1 but at its last session in #aiac the legislature by a two-thirds vote of all the members elected to each house adjudged that the public peace1 health or safety would be imperiled by postponing for ninety days the operation of an act authorizing a repeal of the vote4 ,in all the instances cited1 which are but few out of many1 it is difficult to see how the ninety days' postponement of the operation of the acts cited could imperil the peace1 health or safety of the public1 however much it might inconvenience or annoy individuals or localities4 ,these instances should1 however1 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 judiciary4 ,i have somewhere seen the statement that during recent years upwards of #ejj acts of federal and state legislation have been held by the courts to be in violation of some constitutional provision1 and that this fact should arouse the people to put some check on such exercise of the judicial power4 ,on the contrary1 it should arouse the people to insist on the retention of that power1 and to elect wiser legislators who will more faithfully respect their oaths to observe constitutional limitations4 ,but another and different proposition is urged upon us4 ,it is not to leave the legislature without check upon the tendency to disregard constitutional limitations upon its power1 but to subject the judicial check itself to reversal by a majority of that part of the electorate choosing to act on the matter4 ,it is proposed that whenever a court of last resort shall adjudge that a statute trespasses upon the reserved constitutional rights of the individual1 an appeal may be taken direct to the electorate1 and that if a majority of those choosing to vote on the question desire the statute to stand1 the constitution shall thereafter be held to be amended to that extent4 ,it is submitted that such a procedure would destroy all constitutional guaranties1 no matter what safeguards are attempted4 ,is there any assurance that such a majority would be more considerate of the individual's right to life1 liberty1 and property than their representatives whom they have selected or should have selected for their virtue and wisdom1 and who are sworn1 as well as the judges1 to respect constitutional guaranties8 ,under the present procedure for amendment to constitutions1 propositions for amendment are first considered and debated face to face in a legislature or constitutional convention by representatives of the people1 and cannot be submitted to the people until after opportunity for full and free discussion by their representatives1 and the people themselves have thereby been more or less prepared for its consideration4 ,even under this procedure1 amendments have been adopted that the people have afterward regretted4 ,there is now much agitation for the short ballot1 for restoring to the chief executive the power of appointment of important officials1 a power at first possessed by him1 but taken away by later constitutional amendments4 ,the adoption of the initiative and referendum has not produced the beneficial results expected4 ,it is found that the initiative sometimes produces defective1 unworkable statutes1 and that the referendum can be used to delay and even veto expedient legislation4 ,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 examination1 debate and approval by their chosen representatives1 and this often1 if not always1 in times of popular excitement4 ,with such a procedure ,i can see no more stability of right1 no more security for justice1 than under any unlimited1 absolute government4 ,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 fervor1 and in the lesser and very recent example of the voters of the city of ,seattle1 who elected a mayor1 then soon recalled him1 and but little later re-elected him by a larger majority than before4 ,constitutions to be of any value as bulwarks of liberty should not be immediately changeable with the popular sentiment of the day1 but slowly and only after long reflection and discussion4 ,they should contain only the results of long thought and long experience4 ,legislation is ever active1 ever moving this way and that way1 ever experimenting1 enacting new statutes and amending and repealing old ones1 now imposing fetters on individual liberty1 now striking them off and perhaps imposing others4 ,even in ,england and ,america1 where personal liberty of action is most prized1 time was when statutes were enacted almost putting people and business in strait-jackets4 ,in ,english ,norfolk as late as ,henry ,,viii's time no one was to dye1 shear or calender cloth except in the town of ,norwich2 and no one in the northern counties was to make worsted coverlets except in the city of ,york4 ,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 fish4 ,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 #ahbd4 ,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 employment4 ,the statutes against forestalling1 regrating1 and engrossing were not formally repealed until #ahdd4 ,in early times in ,new ,england also1 statutory attempts were made to fix the price of various commodities and the wages of various kinds of workmen4 ,men were fined for accepting higher than the prescribed wages4 ,the ,sunday laws in some places forbade walking about on ,sunday except reverently to go to and return from meeting4 ,everywhere was the ever present tendency of the legislative power to invade and direct every function of society1--social1 religious1 political1 and economical4 ,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 judiciary4 ,though from time to time many restrictive statutes have been modified and many repealed1 other restrictive statutes have been enacted4 ,today the same process is going on4 ,while now and then restrictions and embargoes of longer or shorter standing are removed1 there is still the same tendency to enact other restrictions and prohibitions4 ,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 occupation1 in his pursuit of happiness4 ,demands are being made upon the legislative department by one class or interest for legislation to restrain other classes or interests1 but for exemption for itself4 ,in earlier times there were statutes fixing a maximum wage for labor1 and though these proved ineffectual it is now proposed to fix a minimum wage1 even though it should prove to be much more than the labor is worth4 ,there are also proposed1 and in many instances enacted1 statutes restricting the freedom of the workman as to his output1 of the employer as to his direction of his business4 ,the natural activities of men are sought to be hampered and handicapped in vexatious ways4 ,in illustration1 ,i quote the following from the ,boston ,herald of ,june #e1 #aiad3 ,twenty-five states and the ,united ,states itself forbid any discrimination by an employer against union men4 ,utah alone has a law to protect the non-union men from organized discrimination of union labor to drive him from his trade4 ,several of our states require that all public printing shall bear the union label4 ,one extends that rule to all stationery4 ,twelve states require employers advertising for help to mention in the advertisement the existence of a strike4 ,the ,minnesota statute provides that1 per contra1 no employer shall require any statement from a person seeking employment as to his participation in a strike4 ,eight states have enacted statutes exempting labor organizations from their respective anti-trust laws4 ,the unscrupulous employer may yet find the labor union the best means of throttling his competitors and securing a monopoly4 ,there seems at times to be a frenzy for such legislation4 ,only a vivid imagination can adequately picture what might result if ,congress and the state legislatures1 or the inconstant majority of the electorate1 were freed from all constitutional limitations or from the check of an independent judiciary4 ,though ,great ,britain1 our mother country1 has no written constitution and no judiciary empowered to enforce its limitations1 it is the happy possessor of a practically homogeneous people of the ,anglo-,saxon race1 little affected by immigration1 and imbued for centuries with a deep regard for personal liberty and private rights4 ,yet1 even there today1 statutes are demanded and sometimes enacted in derogation of them4 ,in this country the population as the result of great immigration is more heterogeneous4 ,it comprises races and peoples of diverse temperaments1 of diverse experiences1 of diverse traditions1 many unschooled in self-government and lacking in that traditional reverence for liberty and order so characteristic of the ,teutonic races4 ,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 benefit4 ,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 right4 ,with such a population with its universal suffrage1 were it not for our written constitutions with their ,bills of ,rights and with an independent judiciary to guard them1 there would be no security here for personal liberty and rights4 ,we should be in the condition of the people of ,france as depicted by ,wm4 ,s4 ,lilly in his recent book1 ,the ,new ,france4 ,he wrote3 ,it is now more than a century since the principles of #aghi were formulated there4 ,but in no country1 not even in ,russia1 is individual freedom less4 ,the state is as ubiquitous and as autocratic as under the worst ,bourbon or ,oriental despots4 ,nowhere is its hand so heavy upon the subject in every department of human life4 ,nowhere is the negation of the value and of the rights of personal independence more absolute1 more complete1 and more effective4 ,yet ,france is a republic with manhood suffrage and with an elective legislature4 ,but its courts are not vested with any power to conserve any rights of the people against legislative caprice4 ,,conclusion ,the thesis ,i have endeavored to support in these lectures1 so far as ,i have a thesis1 is this3 7#a7 that1 after all1 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 individuals1 and with such restrictions only as are necessary for the welfare of society as a whole without discrimination for or against any individual2 and 7#b7 that that justice is more firmly secured by a government with a division of powers1 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 all2 and 7#c7 finally with an independent judiciary to defend those rights when assailed1 as they often have been1 and will be1 by impatient and changeable majorities4 ,it may be admitted that the courts sometimes err in their interpretation of the constitution and the laws1 since judges1 however carefully selected1 are but men2 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 laws4 ,does earlier history or later experience point to any better equipped1 more stable1 more safe tribunal8 ,should not the people endeavor to raise rather than lower the position of the courts2 to conserve rather than impair that freedom1 impartiality1 and independence of the judges declared by the people of ,massachusetts in their ,declaration of ,rights1 after years of galling experience of the contrary1 to be essential to the preservation of every individual1 his life1 liberty1 property and character8 ,are not they the reactionaries who1 despite the lessons of history1 would revert to the days of a dependent1 recallable1 and hence timid judiciary8 ,but justice is not fully and certainly secured by the maintenance of particular political institutions1 however excellent4 ,political institutions are not self-acting4 ,they are only instrumentalities for the action of society4 ,they are not only to be established and maintained2 they are to be administered1 and the best institutions may be maladministered4 ,even under such a system of government as ,i have endeavored to show to be the best yet devised to secure justice1 injustice is still often suffered by the individual or by society4 ,oppressive statutes within the legislative power are too readily enacted4 ,abuses in administration are too long permitted to exist4 ,the only remedy for these is a more enlightened public opinion1 a wider diffusion of the spirit of impartiality1 a greater realization of the right and need of every person to life1 liberty1 and the results of his industry and economy4 ,nor are the judgments of our courts always righteous4 ,some of the instances of unrighteous judgments result from failure to ascertain and apply the truth as to the facts of the case2 some from errors in judgment2 some from lack of firmness in judges in enforcing the known rights of the individual on the one hand1 or those of society on the other2 and perhaps a very few from incompetency or corruption4 ,these causes can be removed to a large extent1 by a more rigid insistence on skill1 ability1 industry1 learning1 and courage on the part of those assuming to administer justice as attorneys and counselors4 ,the same insistence in the selection of judges will lessen the injustice resulting from their errors in judgment and from their lack of firmness4 ,there is yet another cause of injustice1 the delay and expense in obtaining even righteous judgments4 ,it is an axiom1 that justice delayed is justice denied4 ,this delay and expense are often charged against the courts and judges1 as if they had full control over judicial procedure4 ,it is not the judges but the legislature that shapes the judicial system and prescribes the judicial procedure1 so far as they are not fixed by the constitution4 ,it is not the courts but the legislatures that provide for so many appeals and allow so many stays and consequent delays4 ,judges and lawyers the country over are urging a more simplified1 a more speedy1 and less expensive procedure4 ,they are also urging the establishment of more courts with more judges to cope with the constantly increasing litigation1 in order that the wrongs against the individual and the wrongs against society may be redressed with a minimum of delay and cost4 ,it is the legislatures that hesitate and often it is the legislatures that tie the hands of the judges4 ,in some states it is sought to deprive the judges of their proper influence in jury trials4 ,in some states it is even sought to prevent them from saying more than yes or no to proposed instructions to a jury4 ,in many states nearly the whole matter of procedure1 its various steps1 are fixed by statute and become difficult of improvement4 ,if courts could have more power and the legislatures would interfere less in matters of procedure1 ,i am sure the cause of justice would be better served4 ,in conclusion1 perfect justice may not be attainable by us imperfect men4 ,as said by ,addison1 omniscience and omnipotence are requisite for its full attainment4 ,yet it is our duty and especially the duty of those of the legal profession to attain to such approximation as may be possible4 ,no more noble work can engage our powers2 no greater service can be rendered mankind4 ,i do not except the endowment of schools1 colleges1 libraries1 and the like1 nor the endowment of hospitals and other charitable institutions4 ,great as are the virtues of charity1 benevolence1 philanthropy1 piety and the like1 justice is a yet greater virtue4 ,to quote ,addison again1 ,there is no virtue so truly great and godlike as justice2 and in the words of ,daniel ,webster's eulogy3 ,whoever labors on this edifice of justice1 clears its foundations1 strengthens its pillars1 adorns its entablatures1 or contributes to raise its august dome still higher in the skies1 connects himself in name1 fame1 and character with that which is1 and must be1 as durable as the frame of human society4 ,,published ,,on ,,the ,,foundation ,,established ,,in ,,memory ,,of ,,henry ,,weldon ,,barnes ,,of ,,the ,,class ,,of #ahhb1 ,,yale ,,college ,,storrs ,,lectures ,published by ,yale ,university ,press ,,the ,,reform ,,of ,,legal ,,procedure4 ,by ,,moorfield ,,storey4 ,price #a4ce net delivered4 ,,the ,,judiciary ,,and ,,the ,,people4 ,by ,,frederick ,n4 ,,judson4 ,price #a4ce net delivered4 ,,concerning ,,justice4 ,by ,,lucilius ,a4 ,,emery4 ,price #a4ae net delivered4 ,uniform in style with the ,storrs ,lectures ,,international ,,arbitration ,,and ,,procedure4 ,by ,,robert ,c4 ,,morris1 with a foreword by ,,president ,,taft4 ,price #a4ce net delivered4