Concerning Justice

Among these instincts or desires is the desire to live, the desire to serve each his own welfare and that of his offspring, and the desire to decide for himself what will best serve that welfare. As a corollary, he also has by birth the desire for freedom to exercise any and all of his talents and powers in such manner, to such extent, and in pursuit of such objects as he prefers, or to be idle if he prefers idleness. Further, he has the instinct of acquisitiveness, the desire to appropriate to himself and retain control of such material objects as he thinks may serve his welfare and that of his offspring, and especially does he have a natural instinct and desire to possess and control exclusively for himself whatever, much or little, he has wrenched from nature or otherwise obtained by the exercise of his various powers. This instinct is also observable in some animals. A dog will hide a bone for his own exclusive future use. Man also instinctively claims for his own the natural increase of what he has acquired, the young of his beasts, the fruits of his orchard.

This desire for control includes the desire to store up, to use, to consume, to transfer, and even to destroy at will. This desire is seen in young children, who will try to clutch and hold whatever attracts them, and who will hoard or break toys or throw them away as their whims may be. As they get older the desire to control grows stronger, for they destroy less and preserve more in order to have greater measure of control; but still they desire freedom to consume or destroy at their own will. So strong is this desire of control that men wish to direct what shall be done with their property after their death.

If one is balked or hindered in the gratification of any of these desires, there is excited in him a feeling of resentment against the cause, even if it be only some force of nature. There is a note of anger in the cries of a child over interference with his play, the deprivation of any toy or other thing he may have or desire. That the wind or the rain was the cause does not sooth him. In the mature man also, anger adds some force to the kick he gives even inanimate objects unexpectedly impeding him. Who of us has ever fallen over a chair in the dark without mentally, at least, consigning it to perdition? The old law of Deodand was an expression of this feeling of resentment against inanimate objects even. By that law, according to Blackstone, whatever chattel was the immediate cause of the death of a reasonable creature was forfeited to the crown, as when a cart ran over a man. By the laws of Draco whatever caused a man's death by falling upon him was to be destroyed or cast out of the community. Thus a statue having fallen upon a man, it was thrown into the sea. The Mosaic law savagely declared: "If an ox gore a man that he die, the ox shall be stoned and his flesh shall not be eaten."

Is not this instinctive feeling of resentment at interference with one's person, liberty, or property, the rudiment of a later developed idea, or sentiment, of rights possessed? Resentment is felt only when one is deprived of something he feels he is entitled to. Granting that nature has not endowed man with rights, it has imbued him with a belief that he has rights, and also with a disposition to defend them.

Man is also born into a material world of natural forces, and hence to gratify his desire to live and serve his own welfare and that of his offspring, he must adapt himself to his environment, fit himself to withstand heat and cold, provide himself with food and shelter. He not only desires to, but he must, exercise his powers of mind and body and hence should be free to exercise them to that extent at least. Nature does not feed, clothe and shelter man. It only provides the raw material which man must himself find, take, and convert by his labor, manual and intellectual, into food, clothing, shelter, and whatever else he desires.

But man is also born into association with other men, into some sort of social organization, and well for him that he is. It is not society, however ill organized, that has caused, or today causes, poverty. That is the primitive condition of the human race. It is only through some social organization ensuring to man freedom for his labor and security for his savings that he can escape poverty. If each individual by his own unaided efforts had to find the raw material, mold it to serve his needs and desires, and also defend it from attacks by others, his life would be one of dire poverty, scarcely above that of the higher animals.

Further, nature has so formed man that he not only needs but desires association with other men. Children instinctively flock together for common play, and this social instinct continues through life and extends to work as well as play. We find men everywhere in the civilized world voluntarily entering into associations for various purposes thought by the members to be of service to themselves or others. But there is over and surrounding these associations that larger association, racial or territorial, which we call society. This is the necessary association into which man is born and in which he must live if he desires other than mere animal life. This society must be maintained if the race of men, as men and not as mere animals, is to continue. Indeed, society itself has a sort of instinct for self-preservation. It is not a mere aggregation of individual units but is an association of sentient correlated beings with a resultant life and movement of its own.

Association, however, does not extinguish nor appreciably lessen the natural instincts, desires, feelings, sentiments, etc., of the individual, though they may be made less active by continued restraint. Association even extends the scope of man's individual desires and activities. He now desires freedom to make arrangements with other men of such nature and for such purposes as he and they may agree upon. If he is prevented by authority from making such arrangements he feels some resentment, feels that his right is infringed. He also comes to desire that those who have entered into arrangements or contracts with him should perform their part, and he instinctively feels resentment at their neglect or refusal to do so. He feels that he has a right to the performance of the contract.

Another desire is developed or given play by society, – the desire to equal one's fellows in the race for benefits, and, that accomplished, to excel them. He desires to win in every game, to be the victor in every contest of physical or mental powers, and in business as well as in sports. If he is held back he feels resentment against the power assuming to restrain him. He thus feels he has a right to equal and to excel if he can. Whether competition should be enforced or stimulated by society is a question in economics. What affects the question of rights and hence of justice is whether this desire to excel should be impeded.

In this association, however, each individual man finds himself in close contact all through life with other men having like instincts, desires, feelings, emotions, etc., as his own; and who also feel like resentments and have like notions of rights possessed. If each is left by society free to gratify these desires or to enforce his claims of rights in his own way unmindful how his action may affect others; if they be left free to "take who have the power" and only they may "keep who can," society could not exist and civilization, if not the race, would perish.

Society, therefore, must frame and enforce rules for the regulation and control of the conduct of its individual members, must even restrain them to some extent from the gratification of some of their desires. On the other hand, these instincts, desires, etc., must still be reckoned with. They cannot be wholly suppressed nor even very much reduced or impeded if society is to progress or even exist. There must be left to the individual some degree of liberty of choice and action. An eminent American jurist, James C. Carter, vividly stated this, though perhaps in the extreme, when he wrote that the sole function of law and legislation is to secure to each individual the utmost liberty which he can enjoy consistently with the preservation of the like liberty to all others. "Liberty (he wrote), the first of blessings, the aspiration of every human soul, is the supreme object. Every abridgment of it demands an excuse, and the only good excuse is the necessity of preserving it." (Carter's "Law. Its origin and growth," page 337.)

There must also be left to the individual some personal motives for labor and thrift, for, after all, it is the toil of individuals that supports society and its members. It is the surplus products, not consumed, but stored up by the economy of individuals that constitutes the energy of society. However it may be improved in the future, the nature of the average man today is such that he will not toil and deny himself without prospect of rewards to accrue to himself for his own personal use. He will not strive to earn and then conserve his earnings unless he can have them for his own, to control, use and dispose of at his pleasure. However it may be with a few unselfish, devoted souls, men as a rule are not yet so altruistic as to devote themselves exclusively to the good of others, of society. I think it evident that if the impelling natural desire to serve one's self be wholly or even largely disregarded by society, little would be produced or saved by voluntary labor and self-denial. The alternative would be the restoration of some system of enforced labor, of slavery, for the vast majority of men. At this day, after centuries of exhortation to practise the virtues of benevolence, of brotherly love, of self-sacrifice for the good of others, men do not from pure love of humanity voluntarily endure heat and cold, expend their labor and savings in working mines, in braving seas, in building and operating factories, railroads and steamships, in growing corn and cotton. Even those public offices, in which the altruist might find the best opportunities for serving the people, are not much sought for unless some personal honor or pecuniary profit be attached to them. Should society decree that the laborer, whether with hands or brain, should have no individual reward proportionate to the efficiency of his labor, but only his numerical proportion of the product of all laborers, I fear the efficiency of all classes of laborers, manual and mental, would fall to the "irreducible minimum."

The foregoing statements and inferences lead to the question, how far should society go in undertaking to regulate the conduct and restrict the freedom of the individual, – that freedom which would be his if he were alone in the world? It may be thought that this is a question of expediency for economists and sociologists, and so it is largely, but it is also a question of rights and hence of justice, since every action or non-action of society affects the freedom of the individual in the gratification of his desires or, in other words, in his pursuit of happiness.

CHAPTER IV

JUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE INDIVIDUAL AND THE SAFETY OF SOCIETY

The question stated at the close of the last chapter is most important and, in a sense, is perhaps the crux of the whole matter. Not only may error in the solution of the question injuriously affect the material interests of individuals and hence of society as a whole, but it may cause unhappiness far greater than that caused by any material loss, viz., a sense of injustice. As said by the English judge, "Injustice cuts to the bone."

At the outset I accept Herbert Spencer's theory that the idea of justice contains two sentiments, positive and negative; the one the sentiment of the individual that he has the right by nature to the unimpeded use of his faculties and to the benefits he acquires by such use; the other the consciousness that the presence of other individuals with similar claims of rights necessitates some limitation of his own claims. Out of those two sentiments is evolved, I think, the idea of justice or injustice according as they are or are not in equilibrium. They suggest the definition that justice is the equilibrium between the full freedom of the individual and the restrictions thereon necessary for the safety of society. The restraint of personal conduct within too narrow limits, the necessity of which cannot be made clear, excites resentment, stimulates angry passions, and hence causes unhappiness through a sense of injustice. Restraint within necessary limits only, the necessity of which can be seen, arouses no resentment; on the contrary, it satisfies the individual, favors harmonious cooperation, profits society and increases the happiness of its members, through the appreciation of that necessity.

But for the fixing of the boundary line between necessary and unnecessary restraints upon personal conduct, some other matters still are to be considered. I have said that man instinctively feels resentment at interference with whatever he may think is his right to do, or get, or keep. If this interference is from any of his fellow men his resentment is greater than when it is from natural forces. There arises the desire for vengeance, the desire to "get even," – to use a common phrase, – by inflicting a corresponding injury on the offender. An eye for an eye, a tooth for a tooth, is instinctively demanded now as of old. If unable to inflict a corresponding injury there is the desire to inflict an equivalent injury. To paraphrase Bacon, revenge is justice running wild.

This instinct should be heeded by society. If it be necessary for its own preservation that society restrain this instinct, prohibit private vengeance, then it must itself provide for satisfaction of the instinct; the offender must be compelled to make full compensation or else be made to suffer in turn some deprivation of rights claimed by him that shall be commensurate with the offense. This should be done speedily and gratuitously so far as possible. Delay and expense cause resentment in the suitor for justice and so cause injustice. In doing this, society not only protects itself but it restores an equilibrium of rights disturbed by the offender. This restoration of equilibrium is an essential element in the concept of justice. Of course, as society progresses and human nature improves, this desire of the injured for vengeance on the offender becomes weaker. The virtues of mercy, forgiveness, or willingness to forego the demand for punishment, come into play and society is allowed to attempt to reform rather than to punish, or is allowed to pardon altogether. These virtues, however, are not part of the concept of justice. If the punishment seems inadequate, or the pardon seems undeserved, there remains, or is again excited, the feeling of resentment. The equilibrium is not restored.

Another sentiment or feeling is to be reckoned with in order to secure this equilibrium in society. The young, untrained child is impatient of all restraint. It is only by experience that he learns he must submit to restraint if he would have any sort of association with his fellows. He learns that he must submit to the rules of the game if he would have a part in the game. As he comes to maturity he becomes conscious that society must impose restraint upon him and hence feels no resentment against all restraint, as does the untrained child. He does, however, feel resentment if restraints are imposed upon him in his pursuit of happiness which are not imposed upon others in their pursuit. Similarly he feels resentment if exemptions from restraint are allowed some others and not allowed him also. Furthermore, he is quick to note any discrimination against himself and prone to imagine it when in fact there is none.

Almost as soon as the average child is placed with others under a common authority, as in a public school, he begins to complain of the teacher's partiality to other pupils. He will stay in no game where the rules operate unequally against him. He insists on an even chance with his fellow players. When later in life he engages in business he resents any favoritism shown by the government of his state or town to others in the same or a similar business. This feeling is especially noticeable in the matter of taxation. If one believes the taxes imposed by the government are unnecessarily heavy he may feel some resentment, but his resentment is much greater if he believes he is overtaxed in comparison with his fellows, that they are escaping their proportionate share of the burden, or that taxes are imposed on his products in order to favor the products of others, as when oleomargarine was taxed to handicap it in its competition with butter.

This feeling of resentment at inequality of restraints and burdens imposed and exemptions granted is not ignoble, is not a feeling to be suppressed or even concealed. It is far different from the feeling of envy. If I can only afford to ride in a trolley car I may envy the man who can afford to ride in a luxurious motor car and yet not feel wronged. But if I am excluded from a public street car to which he is admitted I have a different feeling, that of resentment. I may be perfectly willing that all others, rich or poor, shall use the streets to the full extent that I do, but if it be proposed that my use shall be limited in order that some others may for their private purposes have more than an equal use with me, my feeling is not one of envy but of indignation. So I can appreciate that if I wilfully or through carelessness injure another I should make full compensation, and hence can cheerfully submit to the law compelling me to do so; but if the law undertakes to exempt any other person from a similar liability, I feel a keen sense of wrong. Conversely, the most strict disciplinarian, the martinet even, if otherwise competent receives ready obedience and respect if it is seen that he treats alike, according to their merits, all subject to his authority. This feeling is natural. Nature is impartial in the application of its laws. It allows no exemption. Its fires burn the weak as well as the strong, the child as well as the man, the poor as well as the rich. One star differs from another star in glory, but no one of all the millions of stars is exempt from any of the laws set by nature for stars.

This feeling of right to impartiality of treatment had some faint expression in the Massachusetts "Body of Liberties" of 1641, in which it was declared that the liberties, etc., therein enumerated should be enjoyed "impartially" by all persons within the jurisdiction of the colony. It was more distinctly recognized in the Connecticut Declaration of 1818 and a part of the Connecticut Bill of Rights today, "That all men when they form a social compact are equal in rights and that no man or set of men are entitled to exclusive public emoluments or privileges from the community." Again it appears in the federal and some state constitutions in the provision against the granting of titles of nobility. It seems to be at least impliedly recognized in the XIVth amendment to the United States Constitution in the clause that no state "shall deny any person within its jurisdiction the equal protection of the laws," since "the equal protection of the laws" necessarily implies protection against unequal laws, laws favoring some at the expense of others or of the whole. If the state favors one more than another it does deny that other equal protection. I do not subscribe to the doctrine that "the greatest good of the greatest number" is to be sought. The only legitimate search is for the good of the whole number without discrimination for or against any one. This sentiment found expression in the once popular slogan, "Equal rights for all. Special privileges for none." I say once popular, for today it would seem not popular in practice. True, special privileges are still loudly denounced, but under the name of special exemptions, they are still demanded by those who denounce them most loudly.

It is not inequality of natural powers of body or mind, nor inequality in natural conditions, that excites this feeling of resentment I have noted. The man of feeble natural powers may envy him of strong natural powers, but he can see that society, that law, is not responsible for that inequality. If one finds himself from lack of natural ability or adaptiveness unable to accomplish what others of superior ability or adaptiveness easily accomplish, and hence he fails to receive the prize they so easily win, he may feel great disappointment and regret, but if honest with himself will not attribute his failure to the injustice of society.

It is not essential to the preservation of society and the race that such inequalities should be removed, that all men should be reduced to a dead level of capacity, that human nature should be ignored. It is strongly felt, however, that society should not itself create artificial inequalities, should not allow one man or set of men a liberty it will not allow to others, should not impose burdens on one man or set of men to be borne by them alone while others are exempt; or if it does undertake to do so it should be able to demonstrate that such artificial inequality is necessary for the safety of all. The intensity of this feeling against artificial inequalities is so great that men sometimes prefer equality before the law even to liberty. When the British ambassador said to Madam De Stael that Frenchmen had no more liberty after the Revolution than before, she answered that they had acquired equality before the law and they preferred that to more liberty. This sentiment was tersely and well expressed in the French Declaration of Rights of 1795. "Equality consists in this, that the law is the same for all whether it protects or punishes."

Of course, no assertion of rights can be carried to the extent of the dictum, "Fiat Justitia ruat Respublica," for if the state fall, all hopes of justice fall with it. When the alternative is the conquest of the particular society by invasion or its disorganization by rebellion or rioting or otherwise, some of its members must submit to the sacrifice of some or all of their rights. Nature will sacrifice individuals for the preservation of the race. Society must sometimes do the same. "Inter arma silent leges." But such times are exceptional and not within the scope of our inquiry.

To sum up the matter, justice is the according to every one his right, and that right is such freedom of action in gratifying one's desires as can be exercised in harmony with like freedom by others. In other words, it is equal freedom, equal restraint. It is order and harmony. Plato and Aristotle were right in teaching that order is an essential element of justice.

But who is to determine the matter? Who is to determine what degree of restraint or liberty is necessary to secure this order and harmony, this justice? Obviously it is society, or rather, individuals acting as a whole through society and not each individual acting for himself, that must determine such questions. Society has the responsibility. If it imposes too many restraints or imposes them unequally it excites, as said before, resentment and antagonism, sometimes to the extent of resistance. If it imposes no more restraints than are necessary and imposes them equally, order and harmony are secured. And when we have this equal freedom with equal and only necessary restraints we have order and harmony, – in other words, justice. Indeed, to repeat, justice in some of its aspects may be considered as the desired equilibrium between the needs of society and the interests of its individual members.

I have left out of the account various virtues, – pity, sympathy, philanthropy, generosity and the like. Though these make social life more agreeable and contribute much to the sum of human happiness, they are not essential to the existence of the race or society. Society as an organization is not held together by these virtues, though many of its weaker members might suffer and perish if they were non-existent. Allow men as much freedom of thought and action as can be exercised without interference with like freedom of others, but restrain them from exercising any greater freedom, and they can and will live together in society though they may be wholly selfish in feeling and conduct. What is called the golden rule, that we should do to others as we would have them do to us, is a precept of philanthropy, of charity, not of justice. The rule enunciated by Confucius five hundred years before Christ, the rule that we should not do to others what we would not have them do to us, is sufficient for the existence of society. The French Convention of 1793 stated the proposition in these words: "Liberty is the power that belongs to man to do whatever is not injurious to the rights of others; it has nature for its principle, justice for its rule, law for its defense: its normal limit is the maxim, Do not to another that which you do not wish to be done to 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 products and the prices to be paid for labor. The effort seems to be to compel men to compete in the use of their savings no matter how wasteful the competition, and to forbid men competing in the use of their labor, no matter what the idleness thereby caused. I think it a truism that whoever seeks to be exempted from the restrictions or liabilities he would impose on others, seeks not justice, but to do injustice.

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

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

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

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

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

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

It has become a familiar maxim that the functions and powers of government may all be grouped in three classes or departments, corresponding to the duties already named: (1) that of determining what rules and regulations should be observed, what restraints and duties should be imposed upon its subjects; (2) that of determining whether in a given case any of these rules, etc., have been violated; and (3) that of punishing their violation and otherwise enforcing their observance. These three groups have come to be called the three powers of government and to be designated as the legislative, judicial, and executive, though they are usually named in another order as the executive, legislative, and judicial.

The most efficient form of government for good or evil, and the quickest to act, is undoubtedly that in which all of these powers are united in a single individual. If that individual were always strong, yet peace-loving, self-controlled, sagacious and exclusively devoted to the welfare of his subjects, that form of government would perhaps secure them justice most surely and speedily. Such men, however, are rare and such governments have been found to be invariably and almost inevitably arbitrary in their dealings with their subjects, and in the plenitude of their power to become oppressive. While they may effectually protect their subjects from foreign aggression and domestic anarchy, their tendency is to impose burdens and restrict individual liberty more than necessary, and to disregard the innate desire of men for liberty or at least for equality of restraint. This form of government has already largely disappeared and is further disappearing, though it may again be resorted to for the restoration of order, should the present forms of government fail to prevent violence and preserve the peace.

But other forms of government have not been and are not yet wholly free from the same objectionable tendency. The vesting of all these governmental powers in a group or class of persons instead of one person has been followed by the same results. Aristocracies or oligarchies have the same tendency and even in a greater degree. They have proved even more selfish and tyrannical than the single ruler. They, like all crowds, are less sensitive in conscience, less moved by appeals to reason, than is the single individual. They offend more the sentiment of equality. The French Revolution was not so much against the king as against the nobility, who with their oppressive feudal exemptions had excited the resentment of the people at large. It was not till after he had cast in his lot with the emigrés that the king was deposed and guillotined.

Nor have pure democracies, in the few instances where they have undertaken to exercise directly all the powers of government, showed less tendency to be arbitrary and inconsiderate of individual freedom and desires. The nearest approach to such a government was that of ancient Athens where the populace sent into exile, practically without trial, Aristides, called the Just, Miltiades, the victor of Marathon, and Themistocles, the victor of Salamis. The excesses of the Paris Commune of 1870 during its reign, the lynchings of today by mobs of so-called "respectable citizens" who assume the power to accuse, judge and execute all at once, indicate how much regard unrestrained democracies would have for the rights of their individual members.

Nevertheless, despite the danger of more or less arbitrariness, of more or less oppression of the individual, any government must be made strong enough perfectly to maintain order and peace among its subjects. Order is earth's as well as heaven's first law. The goddess Themis in the early Greek mythology was the goddess of order as well as the supplier of themistes or decisions. She was present as the spirit of order in the councils of gods and men. The government that cannot or will not maintain order and peace, prevent violence and fraud, enforce individual rights and redress individual wrongs completely and promptly, is so far a failure and whatever its form should be reformed or overthrown. Even military despotism is better than disorder.

On the other hand, there must be taken into account the tendency, already mentioned, of the possessor of unlimited power over others to use it for his own benefit or pleasure at the expense of those subject to his control, where not restrained by affection or like virtues. Under all governments there has been more or less friction between the persons governing and those governed; more or less strife, sometimes culminating in rebellion and even revolution. If it be said that under a government by the people directly, a pure democracy, such as seems to be advocated at this day, there would be no distinction between governors and governed, that all would be governors and governed alike, the answer is that in a pure democracy the governing power is and can be exercised by only a part of the people, a majority it may be, but still only a part. This part are the governors. The other part, perhaps nearly as numerous, are governed. Friction and even factious strife would still exist. Indeed, a government by a pure democracy ruling directly would probably be more arbitrary than any other, as was the case in Athens. The government by one, or that by a few, would be restrained to some extent by public opinion, would refrain from extreme measures lest they excite effectual resistance, but a majority would feel no such restraint. It would itself constitute public opinion and it would be less likely to fear 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 live under any government where the wielders of the governmental power, one or many, are entirely without legal restraint. We all desire normally, not only order and peace, but also personal liberty and equality of rights. The problem, then, is how to order the frame of government so that it shall be strong enough to protect us individually as well as collectively, but not left able to oppress us or any of us. As said by Alexander Hamilton, we "must first enable the government to control the governed, and in the next place oblige it to control itself."

One great step toward such a form of government was made in the establishment of our federal and state governments by giving effect to the theory of the tripartite nature of governmental powers, entrusting each of the three to a different person or group of persons, or, in other words, to a different department, each restraining the other departments from exceeding their defined powers, so that the government, however democratic, shall not run wild. At this day, however, even this feature of our form of government is assailed as hampering the people and their government and greatly delaying desired reforms. It may be admitted that a government with its powers thus separated in different departments is not able to act as quickly as desired by zealous persons confident of the excellence of their schemes and impatient for their realization, but, on the other hand, it is less liable to act too hastily, less liable to act arbitrarily, or to disregard individual rights and interests.

The idea of a division of governmental powers is not of recent origin. Aristotle argued that the judges should have no other political power, should not themselves enforce their decisions. In Rome under the Republic there was divided between the pretor and the judex the power to decide controversies. The pretor had other duties, but the judex was confined to the single duty to hear and determine. The framers of our Federal Constitution and of our early state constitutions did not act hastily nor unadvisedly. As heretofore stated, the long controversy with Great Britain over the relations between that country and her Colonies, the arbitrary acts of the British King and Parliament, caused in the Colonies a profound study of the nature of government: what should be its purposes and how best to effect its purposes and avoid its abuses. The principal men among them in each Colony were familiar with the history of governments and with the theories of government advanced by European lawyers and political philosophers. They were acquainted with the arguments of Montesquieu and others that a separation of the powers of government and the vesting of each, the executive, legislative, and judicial, in different hands was essential to liberty. They did not merely theorize, however. They had themselves lived and labored under governments not thus divided in functions or only partially so. Colonial governors had assumed legislative functions in the promulgation of ordinances, and also judicial functions as judges of probate and in other ways. The colonial legislatures did not hesitate to dictate to the courts in particular cases and often acted as a court of appeal. In Massachusetts Bay the legislature came to be known as the General Court and exercised judicial power freely, sometimes calling in the judges to sit with them. The same individual could at one and the same time fill an executive and a legislative or judicial office. In colonial Massachusetts William Stoughton held the offices of military commander, lieutenant governor, and chief justice at the same time. Because of the frequent and prolonged absences of the titular governor he was often the acting governor. As an inevitable consequence, when sitting as a judge he was more a zealous prosecutor than an impartial judge. His conduct in the witchcraft trials was comparable to that of Jeffreys in the infamous "Bloody Assizes." Hutchinson was also often acting governor while holding his commission as chief justice.

In view of their experience and deep study, the opinions formed by the framers of the early constitutions of this country should be of great weight in forming our own. It is worth while to cite the opinions of some. Thomas Jefferson was not in his day, nor has he been since, regarded as opposed to popular government. Virginia had as early as 1776 declared in its first constitution that the three great departments should be kept separate. Jefferson, who besides his other opportunities of observing the operation of government was himself chief magistrate of the state, criticized that constitution as not making such separation effectual. In his "Notes on Virginia" he wrote of it: "All the powers of government, legislative, executive and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others. For this reason the convention which passed the ordinance of government laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise more than one of them at the same time. But no barrier was provided between these several powers." It was this defect, this lack of barriers, that Jefferson lamented.