But who is to determine the matter? Who is to determine what degree of restraint or liberty is necessary to secure this order and harmony, this justice? Obviously it is society, or rather,individuals acting as a whole through society and not each individual acting for himself, that must determine such questions. Society has the responsibility. If it imposes too many restraints or imposes them unequally it excites, as said before, resentment and antagonism, sometimes to the extent of resistance. If it imposes no more restraints than are necessary and imposes them equally, order and harmony are secured. And when we have this equal freedom with equal and only necessary restraints we have order and harmony,—in other words, justice. Indeed, to repeat, justice in some of its aspects may be considered as the desired equilibrium between the needs of society and the interests of its individual members.
I have left out of the account various virtues,—pity, sympathy, philanthropy, generosity and the like. Though these make social life more agreeable and contribute much to the sum of human happiness, they are not essential to the existence of the race or society. Societyas an organization is not held together by these virtues, though many of its weaker members might suffer and perish if they were non-existent. Allow men as much freedom of thought and action as can be exercised without interference with like freedom of others, but restrain them from exercising any greater freedom, and they can and will live together in society though they may be wholly selfish in feeling and conduct. What is called the golden rule, that we should do to others as we would have them do to us, is a precept of philanthropy, of charity, not of justice. The rule enunciated by Confucius five hundred years before Christ, the rule that we should not do to others what we would not have them do to us, is sufficient for the existence of society. The French Convention of 1793 stated the proposition in these words: "Liberty is the power that belongs to man to do whatever is not injurious to the rights of others; it has nature for its principle, justice for its rule, law for its defense: its normal limit is the maxim, Donot to another that which you do not wish to be done to you."
This order and harmony, however, are not easily secured. Not only are there honest differences of opinion as to what restraints are necessary and how and on whom they should be imposed, but society is divided into groups or classes with interests conflicting, or thought to be conflicting, and each seeking to impose restraints on others while retaining freedom for themselves. While professing to demand more liberty and equality, they are often really insisting on greater restraint and inequality. The successful insistence of the trades-unions of England in securing from Parliament a statute exempting their funds from answering in damages for injuries caused by them is a conspicuous instance. Another and equally glaring example is the effort in this country to exempt from the law against combinations in restraint of trade, combinations to increase the cost of living by increasing the prices of agricultural productsand the prices to be paid for labor. The effort seems to be to compel men to compete in the use of their savings no matter how wasteful the competition, and to forbid men competing in the use of their labor, no matter what the idleness thereby caused. I think it a truism that whoever seeks to be exempted from the restrictions or liabilities he would impose on others, seeks not justice, but to do injustice.
Another hindrance arises out of the very virtues of pity and sympathy. These impel many to endeavor, not to persuade, but to compel the more efficient and prudent who have by their farsightedness, courage, industry and thrift made good provision for themselves and their offspring, to provide also for the inefficient and the improvident. To be asked to give to these does not offend any sense of right, but if one be told he must give he feels resentful at once. He feels he has a right to decide for himself to whom and to what extent he shall give of his savings. Society did not come into existence nor does itnow exist to correct the inequalities of nature, the inequalities of natural powers, nor to prevent the efficient and prudent receiving and enjoying the results of their efficiency and prudence. Nature itself makes no such effort. It rather tends to eliminate the less efficient and preserve the more efficient. Even if society may strive to preserve the inefficient and improvident, should it do so by hampering and restraining those wiser and more capable? We must expect nature to deal with society, with states and nations, as it does with individuals. If a state by its laws discourages the exercise to its full extent of the efficiency of the few and renders less severe the penalties for the inefficiency and imprudence of the many, it cannot long maintain any advantageous position among other nations. Whatever the precepts of religion, of philanthropy, or of other virtues may require, the precepts of justice do not require society to support men in idleness nor even to furnish them with employment. Neither do the precepts of justice require the state to furnish opportunities, nor even to establish equality of opportunity, but only equality of right to take advantage of opportunity. It is a saying, but not a fact, that opportunity knocks once at every man's door. Nature does not bring opportunities, much less equal opportunities, to men's doors. It requires men to go out and search for opportunities, or at least to be on the watch for them, as it requires men to search or watch for other things they desire; and he of the quickest perception and most farsighted will soonest see them, and when seen he does not feel any obligation to share them with others less vigilant or even less fortunate. Society does not support its members, they support it and must support it and themselves by their own exertions, find their own place, find employment for themselves, so far as the precepts of justice are concerned.
However prevalent the sentiment that more than equality of right to use his opportunitiesis due to any one, it is not an instinctive sentiment. The contrary is the fact. Unless we are dominated by some other sentiment than justice, we instinctively yield assent to Aristotle's proposition that the prize flute should be awarded to the best flute player whether opulent or indigent, literate or illiterate, citizen or slave. A group of small children exploring the fields and woods for wild flowers will concede to each what flowers he finds whether by his better eyes or better luck. So with groups of small boys fishing in the streams and brooks. In games of cards for stakes, the players do not expect to hold cards of equal value and they concede the stakes to the winner, whether won by his greater skill or superior cards.
Also there is an instinctive sentiment that the evil results of one's own conduct should be borne by him alone. If one suffers loss through his own misjudgment, incapacity, or want of care, then, whatever the precepts of other virtues may require, we do not feel that justice requires us to bear any part of that loss. On thecontrary, we feel instinctively that he should bear the loss alone, that it is the natural penalty for his lack of judgment, capacity, or care. If my neighbor neglects to insure his house and loses it by fire, I see no reason why he should not bear the loss alone.
In this connection, perhaps I should not omit to notice references often made to the rights of labor, the rights of capital, property rights, and personal rights, as if they were different in their nature and importance. I do not as yet see such difference. All rights are personal rights, and the right of each to control his labor, his savings, his person, and his property is the same. I am not yet convinced that the right of the laborer to make use of his labor is superior to that of the capitalist to make use of his capital; that, whatever his greater need, the right of one without property is superior to that of one who has property; that the right to get is superior to the right to save. It is also loudly proclaimed that "property rights" are of little importance compared with "human rights," unmindful of the truth that the right "of acquiring, possessing and defending property" is, as much as any other, a human right and, as such, necessary to be maintained if the race is to rise above its primitive condition of poverty. However, I do not see that the differences, if any, affect the general question of individual rights.
The conclusion I arrive at is this: Society, and with it the race, cannot survive unless it restrains to some extent individual freedom of action, nor can any particular society long survive if it carry that restraint too far. It should, therefore, ascertain and maintain the line, the equilibrium, between necessary freedom and necessary restraint. It is only by such action of society that justice can be established and the welfare of the race be advanced. This brings us to the question of how and by what instrumentalities society can best perform this momentous task, the securing of justice. This will be considered in the next chapter.
In the present state of civilization society cannot act effectively for determining and maintaining the line, the equilibrium, between necessary freedom and necessary restraint, or in short, justice, except through some governmental organization with power to define and enforce. Appeals to altruistic sentiments will not suffice. This truth was recognized by the framers of our federal and many state constitutions, in naming first among the purposes of government the establishment of justice.
Any government, however, or rather those entrusted with its administration, may through mistake or wilfulness do injustice to some of its subjects. It has often done so in the past andthe future is not free from the danger. The very possession of power excites a desire to use it, and it is an admitted characteristic of our human nature that those vested with power, political or other, are prone to exercise it unduly, to abuse it. Men in authority are often said to be "drunk with power." Hence to ensure justice the governmental organization should be such that the limits of the various powers of the government be carefully defined and its administrators be kept within those limits.
Some years ago I might have pointed to our own federal and state governments as the best in form and character for establishing justice and rested there. In later years, however, the superiority of our system is questioned, and radical changes are urged, and indeed some have been made, in the federal system and in that of some of the states. I feel, therefore, that I should make some defense of the system, believing as I do that in its general form and character it is best adapted to secure firmly as muchindividual liberty of action and equality of right as is consistent with the welfare of the whole number, or, in other words, best adapted to secure justice.
It has become a familiar maxim that the functions and powers of government may all be grouped in three classes or departments, corresponding to the duties already named: (1) that of determining what rules and regulations should be observed, what restraints and duties should be imposed upon its subjects; (2) that of determining whether in a given case any of these rules, etc., have been violated; and (3) that of punishing their violation and otherwise enforcing their observance. These three groups have come to be called the three powers of government and to be designated as the legislative, judicial, and executive, though they are usually named in another order as the executive, legislative, and judicial.
The most efficient form of government for good or evil, and the quickest to act, is undoubtedly that in which all of these powers are united in a single individual. If that individual were always strong, yet peace-loving, self-controlled, sagacious and exclusively devoted to the welfare of his subjects, that form of government would perhaps secure them justice most surely and speedily. Such men, however, are rare and such governments have been found to be invariably and almost inevitably arbitrary in their dealings with their subjects, and in the plenitude of their power to become oppressive. While they may effectually protect their subjects from foreign aggression and domestic anarchy, their tendency is to impose burdens and restrict individual liberty more than necessary, and to disregard the innate desire of men for liberty or at least for equality of restraint. This form of government has already largely disappeared and is further disappearing, though it may again be resorted to for the restoration of order, should the present forms of government fail to prevent violence and preserve the peace.
But other forms of government have not been and are not yet wholly free from the same objectionable tendency. The vesting of all these governmental powers in a group or class of persons instead of one person has been followed by the same results. Aristocracies or oligarchies have the same tendency and even in a greater degree. They have proved even more selfish and tyrannical than the single ruler. They, like all crowds, are less sensitive in conscience, less moved by appeals to reason, than is the single individual. They offend more the sentiment of equality. The French Revolution was not so much against the king as against the nobility, who with their oppressive feudal exemptions had excited the resentment of the people at large. It was not till after he had cast in his lot with the emigrés that the king was deposed and guillotined.
Nor have pure democracies, in the few instances where they have undertaken to exercise directly all the powers of government, showed less tendency to be arbitrary and inconsiderate of individual freedom and desires. The nearest approach to such a government was that of ancient Athens where the populace sent into exile, practically without trial, Aristides, called the Just, Miltiades, the victor of Marathon, and Themistocles, the victor of Salamis. The excesses of the Paris Commune of 1870 during its reign, the lynchings of today by mobs of so-called "respectable citizens" who assume the power to accuse, judge and execute all at once, indicate how much regard unrestrained democracies would have for the rights of their individual members.
Nevertheless, despite the danger of more or less arbitrariness, of more or less oppression of the individual, any government must be made strong enough perfectly to maintain order and peace among its subjects. Order is earth's as well as heaven's first law. The goddess Themis in the early Greek mythology was the goddess of order as well as the supplier ofthemistesor decisions. She was present as the spirit of order in the councils of gods and men. The government that cannot or will not maintain order and peace, prevent violence and fraud, enforce individual rights and redress individual wrongs completely and promptly, is so far a failure and whatever its form should be reformed or overthrown. Even military despotism is better than disorder.
On the other hand, there must be taken into account the tendency, already mentioned, of the possessor of unlimited power over others to use it for his own benefit or pleasure at the expense of those subject to his control, where not restrained by affection or like virtues. Under all governments there has been more or less friction between the persons governing and those governed; more or less strife, sometimes culminating in rebellion and even revolution. If it be said that under a government by the people directly, a pure democracy, such as seems to be advocated at this day, there would be no distinction between governors and governed, thatall would be governors and governed alike, the answer is that in a pure democracy the governing power is and can be exercised by only a part of the people, a majority it may be, but still only a part. This part are the governors. The other part, perhaps nearly as numerous, are governed. Friction and even factious strife would still exist. Indeed, a government by a pure democracy ruling directly would probably be more arbitrary than any other, as was the case in Athens. The government by one, or that by a few, would be restrained to some extent by public opinion, would refrain from extreme measures lest they excite effectual resistance, but a majority would feel no such restraint. It would itself constitute public opinion and it would be less likely to fear resistance.
It is evident, therefore, that the frame of government should be such as to secure uniformity in its action so that it shall not act arbitrarily and unequally on its subjects. I assume that no sane man would desire to liveunder any government where the wielders of the governmental power, one or many, are entirely without legal restraint. We all desire normally, not only order and peace, but also personal liberty and equality of rights. The problem, then, is how to order the frame of government so that it shall be strong enough to protect us individually as well as collectively, but not left able to oppress us or any of us. As said by Alexander Hamilton, we "must first enable the government to control the governed, and in the next place oblige it to control itself."
One great step toward such a form of government was made in the establishment of our federal and state governments by giving effect to the theory of the tripartite nature of governmental powers, entrusting each of the three to a different person or group of persons, or, in other words, to a different department, each restraining the other departments from exceeding their defined powers, so that the government, however democratic, shall not run wild. At this day,however, even this feature of our form of government is assailed as hampering the people and their government and greatly delaying desired reforms. It may be admitted that a government with its powers thus separated in different departments is not able to act as quickly as desired by zealous persons confident of the excellence of their schemes and impatient for their realization, but, on the other hand, it is less liable to act too hastily, less liable to act arbitrarily, or to disregard individual rights and interests.
The idea of a division of governmental powers is not of recent origin. Aristotle argued that the judges should have no other political power, should not themselves enforce their decisions. In Rome under the Republic there was divided between the pretor and the judex the power to decide controversies. The pretor had other duties, but the judex was confined to the single duty to hear and determine. The framers of our Federal Constitution and of our early state constitutions did not act hastily nor unadvisedly.As heretofore stated, the long controversy with Great Britain over the relations between that country and her Colonies, the arbitrary acts of the British King and Parliament, caused in the Colonies a profound study of the nature of government: what should be its purposes and how best to effect its purposes and avoid its abuses. The principal men among them in each Colony were familiar with the history of governments and with the theories of government advanced by European lawyers and political philosophers. They were acquainted with the arguments of Montesquieu and others that a separation of the powers of government and the vesting of each, the executive, legislative, and judicial, in different hands was essential to liberty. They did not merely theorize, however. They had themselves lived and labored under governments not thus divided in functions or only partially so. Colonial governors had assumed legislative functions in the promulgation of ordinances, and also judicial functions as judges of probate and in other ways.The colonial legislatures did not hesitate to dictate to the courts in particular cases and often acted as a court of appeal. In Massachusetts Bay the legislature came to be known as the General Court and exercised judicial power freely, sometimes calling in the judges to sit with them. The same individual could at one and the same time fill an executive and a legislative or judicial office. In colonial Massachusetts William Stoughton held the offices of military commander, lieutenant governor, and chief justice at the same time. Because of the frequent and prolonged absences of the titular governor he was often the acting governor. As an inevitable consequence, when sitting as a judge he was more a zealous prosecutor than an impartial judge. His conduct in the witchcraft trials was comparable to that of Jeffreys in the infamous "Bloody Assizes." Hutchinson was also often acting governor while holding his commission as chief justice.
In view of their experience and deep study,the opinions formed by the framers of the early constitutions of this country should be of great weight in forming our own. It is worth while to cite the opinions of some. Thomas Jefferson was not in his day, nor has he been since, regarded as opposed to popular government. Virginia had as early as 1776 declared in its first constitution that the three great departments should be kept separate. Jefferson, who besides his other opportunities of observing the operation of government was himself chief magistrate of the state, criticized that constitution as not making such separation effectual. In his "Notes on Virginia" he wrote of it: "All the powers of government, legislative, executive and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those whodoubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others. For this reason the convention which passed the ordinance of government laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise more than one of them at the same time. But no barrier was provided between these several powers." It was this defect, this lack of barriers, that Jefferson lamented.
When the draft of the Federal Constitution of 1787 was submitted to the states, one of the principal objections urged against it was that in its structure sufficient regard was not paid tokeeping the three departments of government separate and distinct. In reference to this objection Madison wrote in the "Federalist": "No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which this objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the Federal Constitution therefore really chargeable with this accumulation of powers, or with a mixture of powers having a dangerous tendency to such an accumulation, no further argument would be necessary to inspire a universal reprobation of the system." He elsewhere declared the maxim to be a "fundamental article of liberty."
Hamilton was apprehensive of danger to liberty from the legislative department and favored a strong executive to guard against it. He declared in the "Federalist" that the legislative department was "everywhere extending the sphere of its activity and drawing all power into its impetuous vortex,"—that the people "never seem to have recollected the danger from legislative usurpation which by assembling all power in the same hands must lead to the same tyranny as is threatened by executive usurpation." Washington in his Farewell Address, after much experience with, and observation of, legislative action, said: "The necessity of reciprocal checks in the exercise of political power by dividing and distributing it in different depositaries and constituting each the guardian of the public weal against invasions by the others has been evinced by experiments ancient and modern, some of them in our own country and under our own eyes. To preserve them must be as necessary as to institute them."
After having lived for generations under governments in which there was no effective division of powers, the people of the variouscolonies in setting up their own governments at the time of the Revolution very generally declared for such division, in more or less explicit terms. Even in the few cases where the division was not expressly made, it was implied in the constitution. The provision in the constitution of Massachusetts adopted in 1780 may be cited as an example of the strength of the conviction. "In the government of this Commonwealth the legislative department shall never exercise the executive and judicial powers or either of them; the executive shall never exercise the legislative and judicial powers or either of them; the judicial shall never exercise the legislative and executive powers or either of them." To this provision were appended, as the reason for it, the memorable words, "To the end that it may be a government of laws and not of men."
From 1776 to the present century as new states were formed their people in most instances have adopted similar provisions. Perhaps the people of Maine when they separated fromMassachusetts in 1820 adopted the most stringent provision by prohibiting not only the departments but all the persons in either department from exercising any of the powers properly belonging to either of the other departments.
Of course some exceptions to the rule are necessary and these are usually named in the constitution itself. Again the dividing line between the powers cannot always be precisely defined and, further, each department in the performance of its own proper functions may sometimes be obliged to exercise a power strictly pertaining to another department. All that the maxim requires is that the three powers should be kept as distinct and separate as possible and have the government still go on.
It is true we should not fear to question the wisdom of our fathers, but conclusions they have arrived at in matters of government after long study, observation, and actual experience should not be disregarded unless their error can be clearly demonstrated.
It should be evident that the division and distribution of governmental powers among different depositaries will not alone prevent encroachments by the governing power upon the liberty of the subject. The executive department in performing only executive functions can, in the absence of other checks, act oppressively. The legislative department, especially, without exceeding the legislative function, can in many ways and in excessive degrees oppress the individual by unnecessary restrictions of personal liberty, by unnecessary exactions, by arbitrary discriminations. The theory of representative government is that the legislature will be a body of men who will regard themselves as entrustedwith important powers to be exercised deliberately and wisely for the welfare of the whole commonwealth and not for any one or more classes or interests,—who will regard themselves not as mere delegates or proxies, but as representatives, like the directors of a corporation, to form and act upon their own judgment after investigation and reflection. Experience has shown, however, that members of the legislature do not always nor generally act upon that theory. They seem to be inoculated with the bacillus of irrepressible activity, the desire continually to be proposing new laws, new restrictions, new exactions. If the laws enacted prove difficult of enforcement by reason of their interference with what individuals feel to be their rights, then new and oppressive methods of enforcement are devised, still further restricting liberty and equality. I have seen it stated that in the first ten days of the session of the Massachusetts legislature this present year over a thousand laws were proposed. Further, the members ofthe legislature are beset by constituents and others to favor legislative measures for their own special benefit, or that of their association, or of their locality. One result is that during every legislative session the ordinary citizen is dreading oppressive legislation and feels relieved when the session is over.
When we consider the wide, almost unlimited range of the legislative function, and the power and tendency of legislatures to push that function to the extreme, it would seem that some check should be put upon the legislature to prevent its enacting discriminatory laws or otherwise depriving the individual of some accustomed and cherished freedom of action. If it be said that public opinion is sufficient restraint, the answer is that in a democracy, or in a republic with universal suffrage, the efficient public opinion is practically that of the majority of the electorate, and it is an acknowledged truism that the unrestrained majority is even more likely than the few to be oppressive of the individual. The opinion of the many is more variable than that of the few, more likely to be swayed by sympathy, prejudice, and other emotions. Indeed, public opinion sometimes induces legislatures to enact laws which they themselves feel to be unwise and tyrannical.
If history and reason show that the happiness of the people as a whole requires certain individual liberties and rights to be left undisturbed and that the safety of the people as a whole does not require the contrary, then in order to secure justice those possessing the powers of government should be restrained from any acts infringing those liberties and rights; for, as already stated, justice consists in the equilibrium between restrictions necessary for the welfare of the whole people without discrimination, and the freedom of the individual to serve his own welfare.
I think there are such liberties and rights. The subjects of King John in the 13th century thought so and compelled the king to guaranteeby the Magna Charta that certain specified rights and liberties should not be infringed. Again, the subjects of Charles I in the 17th century had a similar conviction and expressed it in the Petition of Right, which named some liberties and rights not to be infringed. The king assented to that much limitation of the royal power. In the same century, upon the accession of William and Mary, a Bill of Rights was framed and enacted into law by King and Parliament, naming liberties and rights of the subject which ought not to be abridged. Succeeding Kings and Parliaments seem to have respected the provisions of this Bill of Rights in their legislation for British subjects. Had they conceded the claim of the people of the American Colonies that they also were protected by its provisions, the course of our political history might have been different. As it was, however, the British government practically held that neither Magna Charta, the Petition of Right, nor the Bill of Rights restrained it in its dealings withthe Colonies, and this in despite of the protests of some of its most eminent statesmen. The resolutions of the various Colonial legislatures and the formal Declaration of Independence recite many grievous instances of arbitrary action by the government in disregard of the doctrines of those charters.
So bitter was their experience that, when the people of the various Colonies came to frame constitutions for "a government of the people, by the people, and for the people" independent of the British crown and all other external authority, they very generally insisted that even such a government should have its powers defined and limited, that some rights of the individual should be specified which the government should not infringe nor have the lawful power to infringe. From their own experience the people were convinced that such definitions and limitations were necessary for the security of the individual even under a popular government.
The first step of the representatives of the people of Virginia toward a declaration of independence of the British crown, and the setting up an independent government, was the adoption of a declaration of rights in the individual which no government should infringe. This was adopted and promulgated sometime before the constitution proper was framed. The statement was declared to be necessary in order that the government might be "effectually secured against maladministration." Similar limitations upon the powers of the government were imposed in the early constitutions of Massachusetts, New Hampshire, New Jersey, Delaware, Pennsylvania, Maryland, North Carolina, and South Carolina; also in the first constitution of Connecticut in 1818, and in the first constitution of Rhode Island in 1842. The people of New Jersey in 1844 made the limitations more definite, and the people of Maryland imposed additional limitations in 1864. The people of New York did not in their first constitution of 1777 expresslyin terms guarantee individual rights, but they impliedly did so by making the Declaration of Independence the preamble, and in their constitution of 1821 they incorporated an explicit statement of individual rights not to be infringed. The example of the original states in this respect has been followed by most of the subsequent states of the Union.
In 1778 a convention chosen to draft a constitution for Massachusetts submitted a draft to the people, who rejected it by a large majority mainly because it did not contain a "Bill of Rights." To quote from Harry A. Cushing, a writer on the History of Commonwealth Government in Massachusetts, "No demand was more general than that for a Bill of Rights which should embody the best results of experience." In 1780 a second convention submitted another draft of a constitution containing the famous Massachusetts Declaration of Rights, and this the people adopted by a majority of more than two to one. The only objection urged againstthe Declaration of Rights was that it did not go far enough.
In the convention that drafted the Federal Constitution it was strongly urged that a Bill of Rights should be incorporated in the draft, but it was deemed, by the majority at least, unnecessary and even dangerous to make a specific declaration of individual rights, inasmuch as the federal government contemplated was in its very nature limited to such powers as were expressly, or by necessary implication, conferred by the Constitution, and hence to specify certain things the government should not do might be construed as permitting it to do anything not so specified. This argument prevailed and the draft submitted to the states contained no Bill of Rights. Immediately, however, a storm of objections was raised against it because of the omission. Despite the arguments of Hamilton and Madison that a Bill of Rights was unnecessary, ratification was finally obtained only by a general assurance and understanding that a sufficient Bill of Rightsshould be added immediately upon the organization of the new government. The necessary amendments, therefore, were submitted at the first session of the new Congress and were unanimously adopted by the states. Other limitations have since been imposed, notably those in the XIVth amendment, assuring to every citizen equal consideration in legislation by the states.
By the Federal Constitution as it now stands the citizen, in time of peace at least, is guaranteed, among other matters, the protection of the writ of habeas corpus; freedom from bills of attainder and ex post facto legislation; freedom of religious belief and worship; freedom of thought and its expression; freedom peacefully to assemble with others and petition for redress of grievances; freedom from unreasonable searches and seizure; the right not to be prosecuted for infamous crimes except first accused by a grand jury; the right in all criminal prosecutions to a speedy and public trial by an impartial jury, to be confronted with the witnesses against him and to haveassistance of counsel; that he shall not be deprived of life, liberty, or property without due process of law; that his private property shall not be taken from him even for public use without just compensation; that the obligations accruing to him under lawful contracts shall not be impaired; that he shall not be denied the equal protection of the laws. The guarantees in the state constitutions are generally of the same nature.
It is difficult to see how any of these guaranties, or such other guaranties as may be contained in the federal and state constitutions, prevent legislative or executive action necessary for the welfare of the people generally. There is certainly an ample field for such action without overstepping these boundaries. Nevertheless, it is today urged by some impulsive persons, eager to impose their theories on the people at once, that all or many of these limitations upon the powers of government should be removed or disregarded and the majority of the people allowed unrestricted sway in all matters of governmentalaction. Others who do not go so far, yet urge that the majority should be free to suspend these guaranties temporarily or in some particular classes of cases. Against this opinion I submit that after so many centuries of experience of the tendency of all governments to enlarge their powers over the subject, and of struggles to limit the powers of government over private rights and to protect the individual from governmental oppression, the burden of evidence and of argument is heavily on those who would now advocate unlimited powers even for the most democratic government. A government directly by the people is of course in practice a government by a shifting and often narrow majority of the people. It is not yet demonstrated by experience or reason that such a government, unlimited, would be as regardful of individual rights or welfare as a republican form of government with its checks and balances and constitutional restrictions. The excesses of the unlimited democracies of ancient Greece and of the unrestrained democracy of France during and after the revolution of 1789 and the lynchings in this country do not contribute to such demonstration.
It is not those who defend our present form of government with its constitutional guaranties, who resist political action tending to weaken them, that should be called unprogressive, undemocratic, or wanting in love of country. Those of our ancestors, English and American, who fought for these guaranties, who obtained them only after years of strife, who incorporated them in our federal and state constitutions and safeguarded them against the varying impulses of the populace, were not unpatriotic nor unmindful of the welfare of the people,—were not indifferent to human liberties or human rights. Neither are they such who today strive to preserve those guaranties won at such expense of blood and treasure. On the contrary, it is those who would override these guaranties and revert to the old days of unlimited governmental power, that are the reactionaries.
It may be admitted that some of these limitations if enforced do now and then impede and even prevent some governmental action desired by some group or section of the people, but while action in violation of these limitations might benefit its sponsors it would necessarily be at the expense of others. Those who seek such legislation against others would quickly appeal to these limitations if legislation were directed against themselves. The noisiest declaimers against these guaranties fall back for protection upon the constitutional guaranty of freedom of speech. So long as these barriers are maintained every individual, no matter how poor and feeble, will be, theoretically at least, secure in some rights against the attacks of the many. Without such barriers every individual is at the mercy of an inconstant majority. Without such barriers justice cannot be said to be secured. Lord Treasurer Burleigh of Queen Elizabeth's time declared that England could never be ruined by its kings, but only by itsParliament. If the safeguards of the federal and state constitutions are maintained, neither Congress nor the state legislatures can ruin America. If the American people should ever consent to the removal of these safeguards they would give evidence of their want of self-restraint, of their unwillingness and even incapacity to govern themselves, and would pave the way for the man on horseback as the French Revolution paved the way for Napoleon. To deprive a single one of his rightful liberty is to endanger the liberties of all.
Under our federal and state form of government the question naturally arises where should be lodged the power to determine whether in a given instance either department has encroached on the proper field of any other department, and whether either department has encroached on the constitutional rights of the individual citizen. It should be evident that neither the executive nor the legislative department is a fit depositary of such power. Both these, from the nature of their powers, are aggressive. They act of their own volition. They initiate proceedings and measures to carry out policies. In their activities they are apt, consciously or unconsciously, to overstep the boundary lines between the departments and also the limits set for the protection of the citizen against such activities. Again, questions may and often do arise between the government and the individual citizen that are not political questions, but are questions of private right, the right of the individual against the government. The disputants are the individual citizen or group of citizens on the one hand, and the government on the other whether that government be a monarchy, a republican or representative government, or a pure democracy. In such case it would seem clear that one party should not have the power to decide the question. It is an axiom that neither party to a controversy should be the judge in the matter. The legislature that enacts a statute claimed by a citizen to be beyond its powers and to deprive him of some right guaranteed to him by the constitution, should not be the judge of the question any more than should the complaining citizen. So theexecutive should not be the judge where a citizen claims it has exceeded its powers to the detriment of his constitutional or statutory rights. Even if a statute be enacted or ratified by the people directly, under the modern initiative and referendum, and a citizen claims that the statute deprives him of some right guaranteed by the constitution, the people should not be the judge; much less should a majority. If the individual is left to be the judge of his constitutional or legal right as against the government, the result would be anarchy. If the government, even the most popular government, is to be the judge, the result would often be tyranny. There would be occasions, as there have been, when an excited people or majority would tyrannize over the individual, indeed over the minority. To secure alike the people against anarchy and the individual against tyranny, power must be vested in some impartial, independent arbiter to determine authoritatively and finally the relative rights and duties of each under the constitution.
The proper department to be made the depositary of this important power would seem to be the judicial. That department does not initiate, has no policies, does not act of its own volition, but acts only when its action is regularly invoked in some controversy and then only to end that controversy. It may seem unnecessary even to state, much less defend, the proposition, but as its logical result is that the judiciary when invoked by the individual must refuse effect, so far as he is concerned, to a legislative act which deprives him of some right guaranteed by the constitution, and must thus disappoint those who procured the passage of the act, the proposition has been, is still being, denied. The action of the courts in exercising that power has been and is even now denounced as usurpation. Though the proposition is now long established, these attacks justify some repetition of the argument in its support. The logic of Chief Justice Marshall inMarburyv.Madison, 1Cranch137at p.176, seems to me irresistible andworthy of frequent quotation despite the attacks upon it. The Chief Justice said: "This original and supreme will (of a people) organizes the government and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.... The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, either that the Constitution controls any legislative act repugnant to it, or that thelegislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.... Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the Constitution is void."
In 1825 that eminent jurist, Chief Justice Gibson of Pennsylvania, in a dissenting opinion inEakinv.Raub, 12S. & R.330, insisted in an able, elaborate, and exhaustive argument that while the judiciary was bound to refuse effect to a state statute in conflict with the Federal Constitution, it was bound to give it effect if repugnant only to the state constitution. He frankly admitted the logical conclusion that in such case the only remedy the citizen had to enforce his constitutional rights was that of revolution. When, however, his opinion inEakinv.Raubwas cited in 1845 in argument inNorrisv.Clymer, 2Pa. St.277, he said he had changed his opinion on that question, partly "from experience of the necessity of the case." In the later case,De Chastelluxv.Fairchild, 15Pa. St.18, he was emphatic in his declaration of the power and duty of the court to refuse effect to a state statute in conflict with the state constitution. In delivering the opinion of the court he used this vigorous language: "It is idle to say the authority of each branch (of the government) is defined and limited in the constitution, if there be not an independent power able and willing to enforce the limitations.... From its very position it is apparent that the conservative power is lodged with the judiciary, which in the exercise of its undoubted right is bound to meet every emergency."
The results of the contrary doctrine are well stated by the same court inPerkinsv.Philadelphia, 156Pa. St.554. "If laws in conflict with the constitution be passed by the legislature, approved by the governor and sustained by the court, that is revolution. It is no less revolution because accomplished without great violence. It matters little to the house owner whether the structure built to shelter him be blown up by dynamite, or the foundation be pried out stone by stone with a crowbar. In either case he is houseless."
One desirable result of this doctrine that the courts when regularly invoked can and should refuse effect to an unconstitutional statute is that it ensures to every person, not in the military or naval service, the right to test in the judicial courts the authority of any official to interfere with his person, liberty, or property, whatever authority, executive or legislative, the official may plead. In France and other countries of continental Europe questions of the existenceand extent of the authority of an official in his action against individuals are triable, at least at the pleasure of the executive, only in administrative tribunals, that is, courts pertaining to the executive department and instituted to assist that department in the performance of its functions. The aggrieved individual can only apply to the superiors of the official complained of. Such tribunals naturally incline to uphold the authority claimed, and indeed can lawfully allow the plea that the act complained of was ordered in pursuance of some executive policy. A recent instance is that unhappy affair at Zabern in Alsace where an army officer in time of peace wantonly struck and wounded a peaceful crippled citizen with his sabre. The victim could only appeal to the officer's military superiors, who acquitted the offender on the ground that the dignity of the military must be protected. In the United Kingdom, while at present, as for centuries, the individual can appeal to the judicial courts against officials acting under any executive or legislative orders, Parliament, and even a majority of the House of Commons, can at any time deprive him of that right. In this country the executive and legislative departments combined have no such power. So long as our present system is maintained, questions between government officials and individuals must remain cognizable by the judicial courts where the private citizen is on a par with the highest official, and the single individual is on a par with the government itself. In contrast to the Zabern affair we may note that the striking copper miners of Michigan were not obliged to apply to higher military officials for redress of wrongs claimed to have been inflicted upon them by the military. They were free to apply, and did apply, to tribunals outside of and independent of the executive. They and such as they should be the most unwilling to degrade the courts or lessen their power. A similar instance is that of the striking miners in Colorado who so loudly complained of the acts of the militia. They were not obliged to appealto military or executive officers for redress. The Judicial Courts were as open to them as to any others and there they would be upon an equality with the officials.
For the judiciary to be in fact, as well as in theory, the protector of the constitutional rights of the individual against the government, and of the legal rights of the individual against the aggressions of others, it should be made so far as possible free, impartial and independent. The judges should have such security of tenure, and such security and liberality of maintenance, that they will have no occasion nor disposition to court the favor, or fear the disfavor, of any individual or class however powerful or numerous, not even the government itself. They should be made free to consider only what is the truth as to the existing law or fact in question, uninfluenced by any suggestions of what is demanded by prince, people, or individual, or byany suggestion of consequent good or evil to themselves. This proposition to my mind is so self-evident that quotations from eminent philosophers cannot strengthen it.
The necessity of some independent tribunal between the governors and the governed was recognized in republican Rome, where it was provided that the persons of the tribunes should be inviolate, an immunity not granted to any other officials. The medieval cities of Italy frequently selected their judges from some other city that they might be free from any connection with different local factions or interests. When, however, the empire supplanted the republic in Rome, and the free cities of Italy were made subject to despotic domination, the independence of these tribunals was lost. History shows that those possessing the governmental power have always been unwilling to maintain an independent judiciary. The only countries today possessing a judiciary with any considerable degree of independence are the United Kingdomand some of its "Dominions beyond the seas" and our own country. The need of it was seen in the experience of the people of England and of the English Colonies in America under a judiciary liable to be deprived of office or salary if its opinions were displeasing to the crown.
Charles I assented to the Petition of Right and promised to observe it, but no provision was made for any tribunal independent of the king to determine whether his acts were in violation of any article of the Petition. Consequently, when afterward in the matter of the tonnage and poundage tax Parliament remonstrated against the imposition of the tax as a violation of the royal promise in assenting to the Petition of Right, the king abruptly ended the session and in his speech of prorogation denied the right of Parliament to interpret the Petition and asserted that it was for him alone to determine "the true intent thereof." Again, the legality of the imposition by the king of the "ship money" tax without the consent of Parliament washopelessly questioned. The king procured from the judges an opinion that he could lawfully impose such a tax without awaiting the assent of Parliament, when necessary for the defense of the kingdom, and that he was the judge of the necessity and proper amount of the tax. But this was not the opinion of an independent judiciary. The judges at that time could be promoted, removed, or "recalled" at any time at the king's sole pleasure, and they well knew the king's obstinate insistence in the matter. Their opinion simply gave expression to the king's will, and hence inspired no respect.
Finally, for want of an independent tribunal empowered to determine authoritatively between king and subject "the true intent" of the Petition of Right, the legal extent and limitation of the royal power, the lawfulness of its exercise upon the subject in a given case, the issues between them had to be submitted to the arbitrament of civil war, with the result that the monarchical system of government was overthrown. Itssuccessor, an unchecked parliament, was no less arbitrary in many of its acts, and was in turn overthrown and the monarchy restored. The restored dynasty, however, obeying the impulse of all possessors of governmental powers, soon began again to claim and exercise autocratic power, to encroach upon the rights and liberties thought to have been secured to the subject by the royal assent to the Petition of Right and vindicated by successful resistance, and also to suspend the operation of the laws at his pleasure. Unfortunately again there was as yet no impartial, independent tribunal in England to determine authoritatively the line between the royal power and the specified rights of the subject. The judges were still removable at the king's sole pleasure. James II did not hesitate to use this power to obtain such opinions and decisions as he desired. Preparatory to the trial of the Quo Warranto case against the City of London to procure the forfeiture of its charter, the king removed Chief Justice Pemberton and appointedin his place the servile Saunders who had drawn the writ in the case and had conducted all the proceedings in behalf of the crown as its counsel to the stage where the case was ready for argument in the Court of King's Bench. The case of the city was thereby made hopeless and the city itself helpless. In the case of the "Seven Bishops," prosecuted for libel in presenting to the king a petition for him to recall his order for the reading in the churches his Declaration of Indulgence, he seems to have felt tolerably sure of the court as it was already constituted. Two able and learned justices, however, Holloway and Powell, ventured the opinion that the petition was not libelous. They were both promptly "recalled."
Again force had to be used to free the subject and maintain his "rights and liberties" against the sovereign. James II was driven from the country and William of Orange called to the throne. This time the people in settling the new government through parliamentary action wentfarther than before in the way of restraint upon the government and took the necessary step to secure their rights and liberties. In a new instrument, this time called a Declaration instead of a Petition, they reiterated the rights of the subject as twice before they had been formally asserted in the Magna Charta and the Petition of Right. This instrument, known as the Declaration of Rights of 1688, was presented to William and Mary, who solemnly engaged to observe and maintain its provisions. Further still (and this was the new and effective guaranty of the subject's rights), in the Act for the settlement of the crown it was enacted by king, lords, and commons that thereafter the judicial tenure of the judges of the courts should be during good behavior. Since that time for more than two centuries "the true intent" of the laws has been determined, not by king or parliament or people, but by a judiciary made strong and independent. There has been no need to resort to force to defend the legal rights of the subject.
But this security for individual rights and liberties was not extended to British subjects in America. After the Colonies had so increased in population and wealth that they were deemed worth exploitation, the government, among other means of controlling them, took over the appointment of their judges, in many instances with a tenure during the government's pleasure only. In the circular letter of Massachusetts Bay Colony to the other Colonies in 1768 they are asked to consider whether for the judges of the land not to hold their commissions during good behavior and to have their salaries appointed for them by the crown did not have a tendency to "endanger the happiness and security of the subjects." One of the counts in the indictment of July 4, 1776, against the king's government was that it had made the colonial judges dependent on the king's will alone for the tenure of their offices and the amount and payment of their salaries.
As a consequence of this experience with ajudiciary dependent on the governing power for the tenure and maintenance of its judges, the Colonies when they set up independent governments of their own provided a fixed tenure for their judges in every instance but one. Connecticut in its first constitution made the tenure during good behavior, as did Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, South Carolina, and Virginia. Pennsylvania at first fixed the tenure at seven years, but in 1790 changed it to good behavior. The same tenure was fixed for the federal judges in the Federal Constitution. In some instances also, further provision was made for the independence of the judges by forbidding the diminishing of their salaries during their term of office.
The people of Massachusetts, which had been the most harried of the Colonies, declared emphatically the necessity for an independent judiciary. Article XXIX of the Massachusetts Declaration of Rights adopted in 1780 is as follows: "It is essential to the preservation ofevery individual, his life, liberty and property and character that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is, therefore, not only the best policy but for the security of the rights of the people and of every citizen that the judges of the supreme judicial court should hold their offices so long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws." New Hampshire, with a similar experience, adopted the same language in Art. XXXV of her Bill of Rights. The Maryland Declaration of Rights of 1776 contains this article: "Art. XXX. That the independency and uprightness of the judges are essential to the impartial administration of justice and a great security to the rights and liberties of the people; wherefore the chancellor and judges ought to hold commissions during good behavior."
It is true that in most of the states the official tenure of the judges has since been reduced to a more or less brief term of years. This fact is only another instance of the tendency of the governing power to lower if not remove all barriers set up against it for the protection of the individual. Majorities as well as absolute kings like their own way. The change where made may have given majorities greater freedom to enforce their will upon individuals, but it has not increased confidence in the integrity of the judges nor made them more firm to ascertain and declare only the truth.
It is true also that in most states now the people have taken to themselves directly the task of selecting men suitable for judges instead of entrusting that important duty to the governor or legislature, as was the practice in the early days of the republic. I cannot think this has tended to secure better judges, though it may have secured judges more subservient to majorities. Effectually to guard the constitutionaland legal rights of all alike, the judges should possess what is called the legal mind and the judicial temperament. They should be able and learned that they may appreciate the real meaning, purpose, and scope of the constitution and statutes; calm and equable in temperament that they may not be influenced by sympathy, prejudice, or other emotions; strong and courageous in character that they may resist all pressure other than fair argument. To find the men possessing these qualities requires extensive and protracted inquiry and patient consideration, such as are not and cannot be exercised by the people directly. The task should be deputed in the first instance to the head of the state, the chief executive. He has the best means of ascertaining who possesses the requisite qualifications in the greatest degree. He would feel that he alone was responsible for a proper selection, and that feeling of responsibility would tend to make him deliberate and painstaking in his choice. On the other hand,if the original selection be entrusted to the legislature or left with the people acting directly, individual members would have a much lower sense of personal responsibility and the individual members of the electorate scarcely any at all. True, in those states where the judges are elected by the people directly, excellent judges are often and perhaps ordinarily chosen, but I think I state a truth in stating that upon the whole those courts composed of judges with a long tenure and appointed by the executive stand higher in public estimation and their opinions have greater weight. Such courts are certainly a greater protection to those guilty of no wrong, but who have been so unfortunate as to incur the displeasure of an excited community.
Nevertheless, despite the lessons of history and the reasons contra, it is proposed in this twentieth century that the tenure of the judges shall again be during pleasure only,—this time during the pleasure of the majority of the electorate. The proposition is not stated so baldlyby its proposers. They phrase it as the right of the people to remove or recall unsatisfactory public servants, whether judges, or governors, or other officials. They propose that at the request of a certain small percentage of the electorate, setting forth their dissatisfaction with a judge, he may be removed by a majority of the voters. As precedents for their proposal they point triumphantly to the provision of the British Act of Settlement that judges should be removable by the crown upon the request of both Houses of Parliament, and to similar provisions in many of our state constitutions.
Of course, there should be lodged somewhere the power to remove judges proven to be unworthy of their high office, or incapable of performing its high duties, but it should be lodged in a body of men before whom the accused judge can appear in person or by counsel, hear the complaints and face the witnesses against him, and adduce evidence and argument in reply,—and who can on their part see the witnesses andhear the arguments before deciding. That was the opinion of the British Parliament in the few cases presented to them, and the state legislatures in this country have generally entertained the same opinion. It was also held by Parliament that the address for removal should state the reasons therefor. In 1855 Governor Gardner of Massachusetts declined to remove a judge of probate on address by the legislature because no sufficient grounds were stated in the address. He said that in every instance then on record full reasons for removal had accompanied the address.
The constitutional provision for removal by address evidently was not designed to lessen the impartiality and independence of the judge by subjecting him to removal at the mere will of the executive and legislature, but that he might be removed for corruption, neglect of duty, incapacity, immorality, or other disgraceful conduct, after notice, hearing, and deliberation. For the executive and legislature, or even the majority of the people, to remove a judge because theydo not like his opinions as to what the constitution requires or forbids them to do, would destroy the independence of the judges and thus deprive the citizen of all security for his rights and liberties under the constitution,—would be despotism.
The principal argument for lessening the independence of the judges and making them more subservient to the inconstant majority seems to be that otherwise the judges will misuse their power and impede the operation of statutes they do not themselves approve of. The argument has little or no foundation in fact. Perhaps among the hundreds, if not thousands, of cases of holding a statute unconstitutional a few may seem to have been so decided because the judges thought them unwise and oppressive. Some expressions in judicial opinions have been unfortunate in that respect, but the courts everywhere in this country, now if not at first, disclaim any such power. The same Chief Justice Marshall, who had so convincingly stated the duty of thejudiciary to refuse effect to unconstitutional statutes, later inMcCullochv.Maryland, 4Wheat.316, disclaimed for the courts all pretensions to any power to inquire into the necessity of any statute, or in any way to interfere with the discretion of the legislature. In strong and explicit language other courts have disclaimed such pretensions. The Minnesota court inStatev.Corbett, 57Minn.345, held that courts were not at liberty to declare a statute unconstitutional because it is thought by them to be unjust or oppressive, or to violate some natural, social, or political right of the citizen, unless it can be shown that such injustice is prohibited, or such rights protected, by the constitution. The Pennsylvania court inCom.v.Moir, 199Pa. St.534, used this language: "Much of the argument and nearly all the specific objections advanced are to the wisdom and propriety and to the justice of the statute and the motives supposed to have inspired its passage. With these we have nothing to do. They are beyond our province and areconsiderations to be adduced solely to the legislature." The court of West Virginia inSlackv.Jacob, 8W. Va.612, said: "That the judges are convinced that a statute is contrary to natural right, absolute justice, or sound morality does not authorize them to refuse it effect." The court of Washington inFishing Co.v.George, 28Wash.200, held that "a statute cannot be ignored by the courts because leading in its application to absurd, incongruous, or mischievous results." A few cases may also be cited showing how relentlessly this disclaimer is applied. The court of New York inKittingerv.Buffalo Traction Co., 160N. Y.377, held that the courts had no power to inquire into the motives inducing legislation and could not impute to the legislature any other than public motives. The Pennsylvania court inSunbury R.R. Co.v.People, 33Pa. St.278, had urged upon it the argument that the statute in question had been "passed in fraud of the rights of the people." The court held that, if true, that fact would not authorize it torefuse it effect. The Tennessee court inLynnv.Polk, 76Tenn. St.121, was asked to declare a statute ineffective because its enactment was procured by bribing members of the legislature. The court held it could not do so. The Missouri court inSlatev.Clarke, 54Mo.17, had before it a statute authorizing the licensing of bawdy houses and was urged to declare it unconstitutional because against public policy and destructive of good morals. The court held it had no such power. The Justices of the Maine Supreme Court in an opinion reported in 103Maine508 stated the principle as follows: "It is for the legislature to determine from time to time the occasion and what laws are necessary or expedient for the defense and benefit of the people; and however inconvenienced, restricted, or even damaged particular persons and corporations may be, such general laws are to be held valid unless there can be pointed out some provision in the State or United States Constitution which clearly prohibits them."