Concerning Justice Part 2

Another hindrance arises out of the very virtues of pity and sympathy.

These impel many to endeavor, not to persuade, but to compel the more efficient and prudent who have by their farsightedness, courage, industry and thrift made good provision for themselves and their offspring, to provide also for the inefficient and the improvident. To be asked to give to these does not offend any sense of right, but if one be told he must give he feels resentful at once. He feels he has a right to decide for himself to whom and to what extent he shall give of his savings. Society did not come into existence nor does it now exist to correct the inequalities of nature, the inequalities of natural powers, nor to prevent the efficient and prudent receiving and enjoying the results of their efficiency and prudence. Nature itself makes no such effort. It rather tends to eliminate the less efficient and preserve the more efficient. Even if society may strive to preserve the inefficient and improvident, should it do so by hampering and restraining those wiser and more capable? We must expect nature to deal with society, with states and nations, as it does with individuals. If a state by its laws discourages the exercise to its full extent of the efficiency of the few and renders less severe the penalties for the inefficiency and imprudence of the many, it cannot long maintain any advantageous position among other nations. Whatever the precepts of religion, of philanthropy, or of other virtues may require, the precepts of justice do not require society to support men in idleness nor even to furnish them with employment. Neither do the precepts of justice require the state to furnish opportunities, nor even to establish equality of opportunity, but only equality of right to take advantage of opportunity. It is a saying, but not a fact, that opportunity knocks once at every man's door. Nature does not bring opportunities, much less equal opportunities, to men's doors. It requires men to go out and search for opportunities, or at least to be on the watch for them, as it requires men to search or watch for other things they desire; and he of the quickest perception and most farsighted will soonest see them, and when seen he does not feel any obligation to share them with others less vigilant or even less fortunate. Society does not support its members, they support it and must support it and themselves by their own exertions, find their own place, find employment for themselves, so far as the precepts of justice are concerned.

However prevalent the sentiment that more than equality of right to use his opportunities is due to any one, it is not an instinctive sentiment. The contrary is the fact. Unless we are dominated by some other sentiment than justice, we instinctively yield a.s.sent to Aristotle's proposition that the prize flute should be awarded to the best flute player whether opulent or indigent, literate or illiterate, citizen or slave. A group of small children exploring the fields and woods for wild flowers will concede to each what flowers he finds whether by his better eyes or better luck. So with groups of small boys fishing in the streams and brooks. In games of cards for stakes, the players do not expect to hold cards of equal value and they concede the stakes to the winner, whether won by his greater skill or superior cards.

Also there is an instinctive sentiment that the evil results of one's own conduct should be borne by him alone. If one suffers loss through his own misjudgment, incapacity, or want of care, then, whatever the precepts of other virtues may require, we do not feel that justice requires us to bear any part of that loss. On the contrary, we feel instinctively that he should bear the loss alone, that it is the natural penalty for his lack of judgment, capacity, or care. If my neighbor neglects to insure his house and loses it by fire, I see no reason why he should not bear the loss alone.

In this connection, perhaps I should not omit to notice references often made to the rights of labor, the rights of capital, property rights, and personal rights, as if they were different in their nature and importance. I do not as yet see such difference. All rights are personal rights, and the right of each to control his labor, his savings, his person, and his property is the same. I am not yet convinced that the right of the laborer to make use of his labor is superior to that of the capitalist to make use of his capital; that, whatever his greater need, the right of one without property is superior to that of one who has property; that the right to get is superior to the right to save. It is also loudly proclaimed that "property rights" are of little importance compared with "human rights," unmindful of the truth that the right "of acquiring, possessing and defending property" is, as much as any other, a human right and, as such, necessary to be maintained if the race is to rise above its primitive condition of poverty. However, I do not see that the differences, if any, affect the general question of individual 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.

CHAPTER V

JUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL ACTION. THE BEST FORM OF GOVERNMENT

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 const.i.tutions, in naming first among the purposes of government the establishment of justice.

Any government, however, or rather those entrusted with its administration, may through mistake or wilfulness do injustice to some of its subjects. It has often done so in the past and the future is not free from the danger. The very possession of power excites a desire to use it, and it is an admitted characteristic of our human nature that those vested with power, political or other, are p.r.o.ne to exercise it unduly, to abuse it. Men in authority are often said to be "drunk with power." Hence to ensure justice the governmental organization should be such that the limits of the various powers of the government be carefully defined and its administrators be kept within those limits.

Some years ago I might have pointed to our own federal and state governments as the best in form and character for establishing justice and rested there. In later years, however, the superiority of our system is questioned, and radical changes are urged, and indeed some have been made, in the federal system and in that of some of the states. I feel, therefore, that I should make some defense of the system, believing as I do that in its general form and character it is best adapted to secure firmly as much individual liberty of action and equality of right as is consistent with the welfare of the whole number, or, in other words, best adapted to secure justice.

It has become a familiar maxim that the functions and powers of government may all be grouped in three cla.s.ses 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 cla.s.s 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 n.o.bility, 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 emigres 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 a.s.sume 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 G.o.ddess Themis in the early Greek mythology was the G.o.ddess of order as well as the supplier of _themistes_ or decisions. She was present as the spirit of order in the councils of G.o.ds and men. The government that cannot or will not maintain order and peace, prevent violence and fraud, enforce individual rights and redress individual wrongs completely and promptly, is so far a failure and whatever its form should be reformed or overthrown. Even military despotism is better than disorder.

On the other hand, there must be taken into account the tendency, already mentioned, of the possessor of unlimited power over others to use it for his own benefit or pleasure at the expense of those subject to his control, where not restrained by affection or like virtues.

Under all governments there has been more or less friction between the persons governing and those governed; more or less strife, sometimes culminating in rebellion and even revolution. If it be said that under a government by the people directly, a pure democracy, such as seems to be advocated at this day, there would be no distinction between governors and governed, that all would be governors and governed alike, the answer is that in a pure democracy the governing power is and can be exercised by only a part of the people, a majority it may be, but still only a part. This part are the governors. The other part, perhaps nearly as numerous, are governed. Friction and even factious strife would still exist. Indeed, a government by a pure democracy ruling directly would probably be more arbitrary than any other, as was the case in Athens. The government by one, or that by a few, would be restrained to some extent by public opinion, would refrain from extreme measures lest they excite effectual resistance, but a majority would feel no such restraint. It would itself const.i.tute 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 a.s.sume that no sane man would desire to live under any government where the wielders of the governmental power, one or many, are entirely without legal restraint.

We all desire normally, not only order and peace, but also personal liberty and equality of rights. The problem, then, is how to order the frame of government so that it shall be strong enough to protect us individually as well as collectively, but not left able to oppress us or any of us. As said by Alexander Hamilton, we "must first enable the government to control the governed, and in the next place oblige it to control itself."

One great step toward such a form of government was made in the establishment of our federal and state governments by giving effect to the theory of the tripart.i.te 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 a.s.sailed 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 Const.i.tution and of our early state const.i.tutions 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 princ.i.p.al 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 a.s.sumed 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 Ma.s.sachusetts 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 Ma.s.sachusetts 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 t.i.tular 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 "b.l.o.o.d.y a.s.sizes."

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 const.i.tutions 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 const.i.tution 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 const.i.tution as not making such separation effectual. In his "Notes on Virginia" he wrote of it: "All the powers of government, legislative, executive and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others. For this reason the convention which pa.s.sed 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 Const.i.tution of 1787 was submitted to the states, one of the princ.i.p.al objections urged against it was that in its structure sufficient regard was not paid to keeping the three departments of government separate and distinct. In reference to this objection Madison wrote in the "Federalist": "No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which this objection is founded. The acc.u.mulation 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 p.r.o.nounced the very definition of tyranny. Were the Federal Const.i.tution therefore really chargeable with this acc.u.mulation of powers, or with a mixture of powers having a dangerous tendency to such an acc.u.mulation, 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 a.s.sembling 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 const.i.tuting 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 inst.i.tute them."

After having lived for generations under governments in which there was no effective division of powers, the people of the various colonies in setting up their own governments at the time of the Revolution very generally declared for such division, in more or less explicit terms. Even in the few cases where the division was not expressly made, it was implied in the const.i.tution. The provision in the const.i.tution of Ma.s.sachusetts adopted in 1780 may be cited as an example of the strength of the conviction. "In the government of this Commonwealth the legislative department shall never exercise the executive and judicial powers or either of them; the executive shall never exercise the legislative and judicial powers or either of them; the judicial shall never exercise the legislative and executive powers or either of them." To this provision were appended, as the reason for it, the memorable words, "To the end that it may be a government of laws and not of men."

From 1776 to the present century as new states were formed their people in most instances have adopted similar provisions. Perhaps the people of Maine when they separated from Ma.s.sachusetts 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 const.i.tution itself. Again the dividing line between the powers cannot always be precisely defined and, further, each department in the performance of its own proper functions may sometimes be obliged to exercise a power strictly pertaining to another department. All that the maxim requires is that the three powers should be kept as distinct and separate as possible and have the government still go on.

It is true we should not fear to question the wisdom of our fathers, but conclusions they have arrived at in matters of government after long study, observation, and actual experience should not be disregarded unless their error can be clearly demonstrated.

CHAPTER VI

THE NECESSITY OF CONSt.i.tUTIONAL LIMITATIONS UPON THE POWERS OF THE GOVERNMENT. BILLS OF RIGHTS

It should be evident that the division and distribution of governmental powers among different depositaries will not alone prevent encroachments by the governing power upon the liberty of the subject. The executive department in performing only executive functions can, in the absence of other checks, act oppressively. The legislative department, especially, without exceeding the legislative function, can in many ways and in excessive degrees oppress the individual by unnecessary restrictions of personal liberty, by unnecessary exactions, by arbitrary discriminations. The theory of representative government is that the legislature will be a body of men who will regard themselves as entrusted with important powers to be exercised deliberately and wisely for the welfare of the whole commonwealth and not for any one or more cla.s.ses 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 Ma.s.sachusetts legislature this present year over a thousand laws were proposed. Further, the members of the legislature are beset by const.i.tuents and others to favor legislative measures for their own special benefit, or that of their a.s.sociation, or of their locality. One result is that during every legislative session the ordinary citizen is dreading oppressive legislation and feels relieved when the session is over.

When we consider the wide, almost unlimited range of the legislative function, and the power and tendency of legislatures to push that function to the extreme, it would seem that some check should be put upon the legislature to prevent its enacting discriminatory laws or otherwise depriving the individual of some accustomed and cherished freedom of action. If it be said that public opinion is sufficient restraint, the answer is that in a democracy, or in a republic with universal suffrage, the efficient public opinion is practically that of the majority of the electorate, and it is an acknowledged truism that the unrestrained majority is even more likely than the few to be oppressive of the individual. The opinion of the many is more variable than that of the few, more likely to be swayed by sympathy, prejudice, and other emotions. Indeed, public opinion sometimes induces legislatures to enact laws which they themselves feel to be unwise and tyrannical.

If history and reason show that the happiness of the people as a whole requires certain individual liberties and rights to be left undisturbed and that the safety of the people as a whole does not require the contrary, then in order to secure justice those possessing the powers of government should be restrained from any acts infringing those liberties and rights; for, as already stated, justice consists in the equilibrium between restrictions necessary for the welfare of the whole people without discrimination, and the freedom of the individual to serve his own welfare.

I think there are such liberties and rights. The subjects of King John in the 13th century thought so and compelled the king to guarantee by the Magna Charta that certain specified rights and liberties should not be infringed. Again, the subjects of Charles I in the 17th century had a similar conviction and expressed it in the Pet.i.tion of Right, which named some liberties and rights not to be infringed. The king a.s.sented 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 Pet.i.tion of Right, nor the Bill of Rights restrained it in its dealings with the Colonies, and this in despite of the protests of some of its most eminent statesmen. The resolutions of the various Colonial legislatures and the formal Declaration of Independence recite many grievous instances of arbitrary action by the government in disregard of the doctrines of those charters.

So bitter was their experience that, when the people of the various Colonies came to frame const.i.tutions 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 const.i.tution 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 const.i.tutions of Ma.s.sachusetts, New Hampshire, New Jersey, Delaware, Pennsylvania, Maryland, North Carolina, and South Carolina; also in the first const.i.tution of Connecticut in 1818, and in the first const.i.tution 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 const.i.tution of 1777 expressly in terms guarantee individual rights, but they impliedly did so by making the Declaration of Independence the preamble, and in their const.i.tution 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 const.i.tution for Ma.s.sachusetts 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 Ma.s.sachusetts, "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 const.i.tution containing the famous Ma.s.sachusetts Declaration of Rights, and this the people adopted by a majority of more than two to one. The only objection urged against the Declaration of Rights was that it did not go far enough.

In the convention that drafted the Federal Const.i.tution 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 Const.i.tution, 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 a.s.surance and understanding that a sufficient Bill of Rights should be added immediately upon the organization of the new government. The necessary amendments, therefore, were submitted at the first session of the new Congress and were unanimously adopted by the states. Other limitations have since been imposed, notably those in the XIVth amendment, a.s.suring to every citizen equal consideration in legislation by the states.

By the Federal Const.i.tution 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 a.s.semble with others and pet.i.tion for redress of grievances; freedom from unreasonable searches and seizure; the right not to be prosecuted for infamous crimes except first accused by a grand jury; the right in all criminal prosecutions to a speedy and public trial by an impartial jury, to be confronted with the witnesses against him and to have a.s.sistance 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 const.i.tutions 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 const.i.tutions, prevent legislative or executive action necessary for the welfare of the people generally. There is certainly an ample field for such action without overstepping these boundaries. Nevertheless, it is today urged by some impulsive persons, eager to impose their theories on the people at once, that all or many of these limitations upon the powers of government should be removed or disregarded and the majority of the people allowed unrestricted sway in all matters of governmental action. Others who do not go so far, yet urge that the majority should be free to suspend these guaranties temporarily or in some particular cla.s.ses 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 const.i.tutional 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 const.i.tutional 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 const.i.tutions 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 const.i.tutional guaranty of freedom of speech. So long as these barriers are maintained every individual, no matter how poor and feeble, will be, theoretically at least, secure in some rights against the attacks of the many. Without such barriers every individual is at the mercy of an inconstant majority. Without such barriers justice cannot be said to be secured.

Lord Treasurer Burleigh of Queen Elizabeth's time declared that England could never be ruined by its kings, but only by its Parliament. If the safeguards of the federal and state const.i.tutions 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.