things. Prolixity is also the easy path for tired and uncertain minds. To a judge with whom I am most familiar it came from a disposition to pedantry. Early in his judicial career he determined that in writing opinions he would pursue the legal principles involved to their upper reaches, even to their fountain heads, and also survey the country roundabout so that, besides some little personal renown, no subsequent traveler could lose his. way. He found his industry was not appreciated and that where the work went beyond the needs it was frequently inaccurate. And then one day he read of the functionaries in India who wrote "thirty page judgments on fifty rupee cases," and, the author added, "both sides perjured to the gullet." But prolixity had become almost a fastened habit.

All candid men will agree that for reproach our criminal procedure is in a class by itself. It would be humorous were it not tragic. Some of us flatter ourselves that our procedural eccentricities are due to a tender solicitude for life and liberty and that it is better that the many escape justice than that the one innocent suffer, forgetting the while the rational tests and standards; and that society, having its rights also, has admonished by the frequency with which it has roughly shown distrust of criminal justice judicially administered.

All of us have heard these things, and others, in various forms. To ignore them is neither wise nor consistent with duty. To be rid of such as have real foundation would make for happiness. To the glory of the profession which has in charge so much of the temporal interests of men the baser charge of infidelity to trust is never made against it. That is the important thing; all else are merely curios gathered on the voyage. Its members have charity, too, for they do not question the clean right of the stone throwers, as perhaps they might.







Liberty or oppression, happiness or misery, prosperity or poverty, national progress or decay, the security of person and property are, in a large degree, the results of the law under which a people live. Civil liberty cannot be defined without a reference to the law. The greatest of our American judges has said, that its very essence consists in the right of every individual to claim the protection of the laws whenever he receives an injury; and the laws determine when the injury has been committed, and point out the method by which it may be redressed.

It is, therefore, simply impossible to overstate the extent and value of the services which the Bench and Bar have rendered to our people. The system of common law, which our ancestors brought with them to the new world, lies at the basis of our jurisprudence, and is inseparably interwoven with the fabric of our liberty. The whole complex system has been developed, enlarged, improved, and preserved, mainly by the lawyers and judges of England and America. Magna Charta, the Bill of Rights, the Petition of Rights, the law of contracts and of torts, the great body of equity jurisprudence, the science of pleading and practice-all have been moulded and fashioned by the Bench and Bar. To the constructive power of the Bench and Bar we are largely indebted for our popular institutions, for habeas corpus, and the right of trial by jury-the great safeguards of personal liberty-for the rule of equal law and equal opportunity under the law. They have contributed more than any other instrumentality in creating what has been called "our jurisprudence of liberty, which guards our person from

violence, and our goods from plunder, and which forbids the whole power of the state to take the ewe lamb, or to trample upon a blade of grass of the humblest citizen; which makes every dwelling large enough to shelter a human life its owner's castle, which the winds and rains might enter, but which the government cannot; which has come to walk in brightness by the weary plowman's side; and whispers in his ear that the harvest which the frost and mildew and canker worm shall spare, the government shall spare also."

On the 4th of March, 1789, the Constitution, formed by the wisdom of the fathers and embodying the principles to which we have heretofore been attached, became the supreme, organic law of the land. On the 30th of April following, in Federal Hall, in the city of New York, George Washington took the oath of office as the first President of the United States.

Twenty-seven men have succeeded Washington in the presidential office, and today, a little more than one hundred and twenty-four years after the inauguration of the government, the legal profession, which has ever been distinguished for its firm and fearless support of popular rights, re-examines our jurisprudence of liberty. Has it failed? Is it inherently defective and inadequate? What are the evils and abuses that have crept into the administration of the government and how may they be remedied?

It has not failed. Time has demonstrated its wisdom, and the shock of four wars, one of which "in the number of men engaged in it, in the capacity of the weapons and instruments of destruction brought into operation, and in the importance of the results to humanity at large, must be esteemed the greatest war that the history of the world presents," has shaken it more firmly into place, and fixed its principles more immovably in the affections of the great body of the people. We are in the possession and the enjoyment of the fruits of a law which God has implanted in the hearts of His children for the development and perfection of the race. I mean the law of social progress.

This is the people's century, and across "tottering thrones and drooping sceptres" and plutocratic power and special privilege

streams the bright rays of a masterful democracy, glorying in the achievements of the past, and able and determined to redress the wrongs of the present.

To the Pagan, whether the Greek, or Roman, or Asiatic, man was a means to the well being, the growth and aggrandizement of the state-the difference between them being that the Greek and the Roman set up the state as the personified ideal, while the Asiatic embodied it in the ruler. Christianity brought a new concept of the inherent dignity that pertains to every individual that possesses a rational nature-a concept unknown before its advent, except to the Hebrew people, whose grasp of it, however, was national and racial. The state, accordingly, is not a something abstracted and distinct from, and elevated above the people that compose it; nor an individual who, by a divine right, comprises in his sole person sovereign power; but it is the people collectively taken and politically organized for the social purposes of its citizens, as exhibited by the natural impulses that impelled man to form civil society. Its final purpose is not itself, but the temporal well being of those who compose it. Now, the conviction today is deep seated in the hearts of men that every child on whom life has dawned acquires thereby those rights without which life itself would be a mockery and a cheat. This conviction has taken on the cogency of an intuition. We hold, as a basic principle of our civilization and as the fundamental law of social institutions, that every rational being, because he is a rational being, has a right to live, to the means of subsistence and self-development and to the opportunity for the reasonable exercise of his activities therefor. Whatever may be the origin of our belief, or the present grounds of our assent to it, we attribute to human personality a dignity which we conceive confers rights prior to any rights bestowed by the state or arising from any fact supervening on existence-rights that are connatural, primordial and paramount, and which it is the state's duty to protect. Furthermore, it is essential to the actuation of these connatural rights, that man should have equitable access to the means of living, that is to say, to the material goods by which life is sustained. These are, therefore, the common pat-.

rimony of all men. Some of them, as the air we breathe, the sunlight we enjoy, are of such a character that they may not be appropriated. Others have no utility unless they are appropriated by an individual or by a community. Nature leaves their appropriation to be determined by the exigencies of life and the dictates of reason. It simply indicates that they are for the use of all men, and that whatever distribution of them is made should be regulated by the connatural right of all men to share in the means of subsistence, and to have fair opportunity to acquire what the needs of life demand.

Economically, the society of today is at war. The combatants are on one side: excessive individualism, which looks on ownership as a purely personal affair, having no other-regarding aspects, no social duties and no relations to the ideal purpose of material things, and on the other Socialism, which, so far as it is a definable theory, would transfer to the community ownership of productive goods and deny personal ownership to man in the fruits of his lawful industry.

The institution of property "is based on the application of moral principles to the facts of human nature as manifested in history." Its origin is, therefore, jural and historical. The jural principles are: First, every man, as a person, has a connatural right to the means of providing for himself, for those to whom he has been the author of existence, and for those who are dependent on him. This is not a transient right valid only for the time of need. Man is capable of foresight. Unlike the beast, he is by nature mindful of the morrow. As he rises above the savage he is fettered by a sense of the future. His faculty of prevision entails his right of provision. Secondly, every one has a right to the fruits of his own industry, his skill and intelligence. His labor, whether manual or mental, whether employed in the service of others or of the public, is not a mere market commodity, nor is it like the hire of an animal. It is a distinctly personal possession, destined primarily for his own utility. Its net product is exclusively his by the same right that his producing bodily or mental faculties are his. Lastly, as a social being, he has social duties the duty of exercising his right of acquisition so

« ForrigeFortsett »