CHAPTER VII

THE INTERPRETATION AND ENFORCEMENT OF CONSt.i.tUTIONAL LIMITATIONS NECESSARILY A FUNCTION OF THE JUDICIARY

Under our federal and state form of government the question naturally arises where should be lodged the power to determine whether in a given instance either department has encroached on the proper field of any other department, and whether either department has encroached on the const.i.tutional rights of the individual citizen. It should be evident that neither the executive nor the legislative department is a fit depositary of such power. Both these, from the nature of their powers, are aggressive. They act of their own volition. They initiate proceedings and measures to carry out policies. In their activities they are apt, consciously or unconsciously, to overstep the boundary lines between the departments and also the limits set for the protection of the citizen against such activities. Again, questions may and often do arise between the government and the individual citizen that are not political questions, but are questions of private right, the right of the individual against the government. The disputants are the individual citizen or group of citizens on the one hand, and the government on the other whether that government be a monarchy, a republican or representative government, or a pure democracy. In such case it would seem clear that one party should not have the power to decide the question. It is an axiom that neither party to a controversy should be the judge in the matter. The legislature that enacts a statute claimed by a citizen to be beyond its powers and to deprive him of some right guaranteed to him by the const.i.tution, should not be the judge of the question any more than should the complaining citizen. So the executive should not be the judge where a citizen claims it has exceeded its powers to the detriment of his const.i.tutional or statutory rights. Even if a statute be enacted or ratified by the people directly, under the modern initiative and referendum, and a citizen claims that the statute deprives him of some right guaranteed by the const.i.tution, the people should not be the judge; much less should a majority. If the individual is left to be the judge of his const.i.tutional or legal right as against the government, the result would be anarchy. If the government, even the most popular government, is to be the judge, the result would often be tyranny. There would be occasions, as there have been, when an excited people or majority would tyrannize over the individual, indeed over the minority. To secure alike the people against anarchy and the individual against tyranny, power must be vested in some impartial, independent arbiter to determine authoritatively and finally the relative rights and duties of each under the const.i.tution.

The proper department to be made the depositary of this important power would seem to be the judicial. That department does not initiate, has no policies, does not act of its own volition, but acts only when its action is regularly invoked in some controversy and then only to end that controversy. It may seem unnecessary even to state, much less defend, the proposition, but as its logical result is that the judiciary when invoked by the individual must refuse effect, so far as he is concerned, to a legislative act which deprives him of some right guaranteed by the const.i.tution, and must thus disappoint those who procured the pa.s.sage of the act, the proposition has been, is still being, denied. The action of the courts in exercising that power has been and is even now denounced as usurpation. Though the proposition is now long established, these attacks justify some repet.i.tion of the argument in its support. The logic of Chief Justice Marshall in _Marbury_ v. _Madison_, 1 _Cranch_ 137 _at p. 176_, seems to me irresistible and worthy of frequent quotation despite the attacks upon it. The Chief Justice said: "This original and supreme will (of a people) organizes the government and a.s.signs to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.... The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Const.i.tution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing if these limits may at any time be pa.s.sed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, either that the Const.i.tution controls any legislative act repugnant to it, or that the legislature may alter the Const.i.tution by an ordinary act.

Between these alternatives there is no middle ground. The Const.i.tution is either a superior, paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it....

Certainly all those who have framed written const.i.tutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the Const.i.tution is void."

In 1825 that eminent jurist, Chief Justice Gibson of Pennsylvania, in a dissenting opinion in _Eakin_ v. _Raub_, 12 _S. & R._ 330, insisted in an able, elaborate, and exhaustive argument that while the judiciary was bound to refuse effect to a state statute in conflict with the Federal Const.i.tution, it was bound to give it effect if repugnant only to the state const.i.tution. He frankly admitted the logical conclusion that in such case the only remedy the citizen had to enforce his const.i.tutional rights was that of revolution. When, however, his opinion in _Eakin_ v. _Raub_ was cited in 1845 in argument in _Norris_ v. _Clymer_, 2 _Pa. St._ 277, he said he had changed his opinion on that question, partly "from experience of the necessity of the case." In the later case, _De Chastellux_ v.

_Fairchild_, 15 _Pa. St._ 18, he was emphatic in his declaration of the power and duty of the court to refuse effect to a state statute in conflict with the state const.i.tution. In delivering the opinion of the court he used this vigorous language: "It is idle to say the authority of each branch (of the government) is defined and limited in the const.i.tution, if there be not an independent power able and willing to enforce the limitations.... From its very position it is apparent that the conservative power is lodged with the judiciary, which in the exercise of its undoubted right is bound to meet every emergency."

The results of the contrary doctrine are well stated by the same court in _Perkins_ v. _Philadelphia_, 156 _Pa. St._ 554. "If laws in conflict with the const.i.tution be pa.s.sed by the legislature, approved by the governor and sustained by the court, that is revolution. It is no less revolution because accomplished without great violence. It matters little to the house owner whether the structure built to shelter him be blown up by dynamite, or the foundation be pried out stone by stone with a crowbar. In either case he is houseless."

One desirable result of this doctrine that the courts when regularly invoked can and should refuse effect to an unconst.i.tutional statute is that it ensures to every person, not in the military or naval service, the right to test in the judicial courts the authority of any official to interfere with his person, liberty, or property, whatever authority, executive or legislative, the official may plead. In France and other countries of continental Europe questions of the existence and extent of the authority of an official in his action against individuals are triable, at least at the pleasure of the executive, only in administrative tribunals, that is, courts pertaining to the executive department and inst.i.tuted to a.s.sist that department in the performance of its functions. The aggrieved individual can only apply to the superiors of the official complained of. Such tribunals naturally incline to uphold the authority claimed, and indeed can lawfully allow the plea that the act complained of was ordered in pursuance of some executive policy. A recent instance is that unhappy affair at Zabern in Alsace where an army officer in time of peace wantonly struck and wounded a peaceful crippled citizen with his sabre. The victim could only appeal to the officer's military superiors, who acquitted the offender on the ground that the dignity of the military must be protected. In the United Kingdom, while at present, as for centuries, the individual can appeal to the judicial courts against officials acting under any executive or legislative orders, Parliament, and even a majority of the House of Commons, can at any time deprive him of that right. In this country the executive and legislative departments combined have no such power. So long as our present system is maintained, questions between government officials and individuals must remain cognizable by the judicial courts where the private citizen is on a par with the highest official, and the single individual is on a par with the government itself. In contrast to the Zabern affair we may note that the striking copper miners of Michigan were not obliged to apply to higher military officials for redress of wrongs claimed to have been inflicted upon them by the military. They were free to apply, and did apply, to tribunals outside of and independent of the executive. They and such as they should be the most unwilling to degrade the courts or lessen their power. A similar instance is that of the striking miners in Colorado who so loudly complained of the acts of the militia. They were not obliged to appeal to military or executive officers for redress. The Judicial Courts were as open to them as to any others and there they would be upon an equality with the officials.

CHAPTER VIII

AN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR JUSTICE

For the judiciary to be in fact, as well as in theory, the protector of the const.i.tutional rights of the individual against the government, and of the legal rights of the individual against the aggressions of others, it should be made so far as possible free, impartial and independent. The judges should have such security of tenure, and such security and liberality of maintenance, that they will have no occasion nor disposition to court the favor, or fear the disfavor, of any individual or cla.s.s however powerful or numerous, not even the government itself. They should be made free to consider only what is the truth as to the existing law or fact in question, uninfluenced by any suggestions of what is demanded by prince, people, or individual, or by any suggestion of consequent good or evil to themselves. This proposition to my mind is so self-evident that quotations from eminent philosophers cannot strengthen it.

The necessity of some independent tribunal between the governors and the governed was recognized in republican Rome, where it was provided that the persons of the tribunes should be inviolate, an immunity not granted to any other officials. The medieval cities of Italy frequently selected their judges from some other city that they might be free from any connection with different local factions or interests. When, however, the empire supplanted the republic in Rome, and the free cities of Italy were made subject to despotic domination, the independence of these tribunals was lost. History shows that those possessing the governmental power have always been unwilling to maintain an independent judiciary. The only countries today possessing a judiciary with any considerable degree of independence are the United Kingdom and some of its "Dominions beyond the seas" and our own country. The need of it was seen in the experience of the people of England and of the English Colonies in America under a judiciary liable to be deprived of office or salary if its opinions were displeasing to the crown.

Charles I a.s.sented to the Pet.i.tion of Right and promised to observe it, but no provision was made for any tribunal independent of the king to determine whether his acts were in violation of any article of the Pet.i.tion. Consequently, when afterward in the matter of the tonnage and poundage tax Parliament remonstrated against the imposition of the tax as a violation of the royal promise in a.s.senting to the Pet.i.tion of Right, the king abruptly ended the session and in his speech of prorogation denied the right of Parliament to interpret the Pet.i.tion and a.s.serted that it was for him alone to determine "the true intent thereof." Again, the legality of the imposition by the king of the "ship money" tax without the consent of Parliament was hopelessly questioned. The king procured from the judges an opinion that he could lawfully impose such a tax without awaiting the a.s.sent of Parliament, when necessary for the defense of the kingdom, and that he was the judge of the necessity and proper amount of the tax. But this was not the opinion of an independent judiciary. The judges at that time could be promoted, removed, or "recalled" at any time at the king's sole pleasure, and they well knew the king's obstinate insistence in the matter. Their opinion simply gave expression to the king's will, and hence inspired no respect.

Finally, for want of an independent tribunal empowered to determine authoritatively between king and subject "the true intent" of the Pet.i.tion of Right, the legal extent and limitation of the royal power, the lawfulness of its exercise upon the subject in a given case, the issues between them had to be submitted to the arbitrament of civil war, with the result that the monarchical system of government was overthrown. Its successor, an unchecked parliament, was no less arbitrary in many of its acts, and was in turn overthrown and the monarchy restored. The restored dynasty, however, obeying the impulse of all possessors of governmental powers, soon began again to claim and exercise autocratic power, to encroach upon the rights and liberties thought to have been secured to the subject by the royal a.s.sent to the Pet.i.tion of Right and vindicated by successful resistance, and also to suspend the operation of the laws at his pleasure. Unfortunately again there was as yet no impartial, independent tribunal in England to determine authoritatively the line between the royal power and the specified rights of the subject. The judges were still removable at the king's sole pleasure. James II did not hesitate to use this power to obtain such opinions and decisions as he desired. Preparatory to the trial of the Quo Warranto case against the City of London to procure the forfeiture of its charter, the king removed Chief Justice Pemberton and appointed in his place the servile Saunders who had drawn the writ in the case and had conducted all the proceedings in behalf of the crown as its counsel to the stage where the case was ready for argument in the Court of King's Bench. The case of the city was thereby made hopeless and the city itself helpless. In the case of the "Seven Bishops," prosecuted for libel in presenting to the king a pet.i.tion for him to recall his order for the reading in the churches his Declaration of Indulgence, he seems to have felt tolerably sure of the court as it was already const.i.tuted. Two able and learned justices, however, Holloway and Powell, ventured the opinion that the pet.i.tion was not libelous. They were both promptly "recalled."

Again force had to be used to free the subject and maintain his "rights and liberties" against the sovereign. James II was driven from the country and William of Orange called to the throne. This time the people in settling the new government through parliamentary action went farther than before in the way of restraint upon the government and took the necessary step to secure their rights and liberties. In a new instrument, this time called a Declaration instead of a Pet.i.tion, they reiterated the rights of the subject as twice before they had been formally a.s.serted in the Magna Charta and the Pet.i.tion of Right.

This instrument, known as the Declaration of Rights of 1688, was presented to William and Mary, who solemnly engaged to observe and maintain its provisions. Further still (and this was the new and effective guaranty of the subject's rights), in the Act for the settlement of the crown it was enacted by king, lords, and commons that thereafter the judicial tenure of the judges of the courts should be during good behavior. Since that time for more than two centuries "the true intent" of the laws has been determined, not by king or parliament or people, but by a judiciary made strong and independent.

There has been no need to resort to force to defend the legal rights of the subject.

But this security for individual rights and liberties was not extended to British subjects in America. After the Colonies had so increased in population and wealth that they were deemed worth exploitation, the government, among other means of controlling them, took over the appointment of their judges, in many instances with a tenure during the government's pleasure only. In the circular letter of Ma.s.sachusetts Bay Colony to the other Colonies in 1768 they are asked to consider whether for the judges of the land not to hold their commissions during good behavior and to have their salaries appointed for them by the crown did not have a tendency to "endanger the happiness and security of the subjects." One of the counts in the indictment of July 4, 1776, against the king's government was that it had made the colonial judges dependent on the king's will alone for the tenure of their offices and the amount and payment of their salaries.

As a consequence of this experience with a judiciary dependent on the governing power for the tenure and maintenance of its judges, the Colonies when they set up independent governments of their own provided a fixed tenure for their judges in every instance but one.

Connecticut in its first const.i.tution made the tenure during good behavior, as did Delaware, Maryland, Ma.s.sachusetts, New Hampshire, North Carolina, South Carolina, and Virginia. Pennsylvania at first fixed the tenure at seven years, but in 1790 changed it to good behavior. The same tenure was fixed for the federal judges in the Federal Const.i.tution. In some instances also, further provision was made for the independence of the judges by forbidding the diminishing of their salaries during their term of office.

The people of Ma.s.sachusetts, which had been the most harried of the Colonies, declared emphatically the necessity for an independent judiciary. Article XXIX of the Ma.s.sachusetts Declaration of Rights adopted in 1780 is as follows: "It is essential to the preservation of every individual, his life, liberty and property and character that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is, therefore, not only the best policy but for the security of the rights of the people and of every citizen that the judges of the supreme judicial court should hold their offices so long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws." New Hampshire, with a similar experience, adopted the same language in Art. x.x.xV of her Bill of Rights. The Maryland Declaration of Rights of 1776 contains this article: "Art. x.x.x. That the independency and uprightness of the judges are essential to the impartial administration of justice and a great security to the rights and liberties of the people; wherefore the chancellor and judges ought to hold commissions during good behavior."

It is true that in most of the states the official tenure of the judges has since been reduced to a more or less brief term of years.

This fact is only another instance of the tendency of the governing power to lower if not remove all barriers set up against it for the protection of the individual. Majorities as well as absolute kings like their own way. The change where made may have given majorities greater freedom to enforce their will upon individuals, but it has not increased confidence in the integrity of the judges nor made them more firm to ascertain and declare only the truth.

It is true also that in most states now the people have taken to themselves directly the task of selecting men suitable for judges instead of entrusting that important duty to the governor or legislature, as was the practice in the early days of the republic.

I cannot think this has tended to secure better judges, though it may have secured judges more subservient to majorities. Effectually to guard the const.i.tutional and legal rights of all alike, the judges should possess what is called the legal mind and the judicial temperament. They should be able and learned that they may appreciate the real meaning, purpose, and scope of the const.i.tution and statutes; calm and equable in temperament that they may not be influenced by sympathy, prejudice, or other emotions; strong and courageous in character that they may resist all pressure other than fair argument.

To find the men possessing these qualities requires extensive and protracted inquiry and patient consideration, such as are not and cannot be exercised by the people directly. The task should be deputed in the first instance to the head of the state, the chief executive.

He has the best means of ascertaining who possesses the requisite qualifications in the greatest degree. He would feel that he alone was responsible for a proper selection, and that feeling of responsibility would tend to make him deliberate and painstaking in his choice. On the other hand, if the original selection be entrusted to the legislature or left with the people acting directly, individual members would have a much lower sense of personal responsibility and the individual members of the electorate scarcely any at all. True, in those states where the judges are elected by the people directly, excellent judges are often and perhaps ordinarily chosen, but I think I state a truth in stating that upon the whole those courts composed of judges with a long tenure and appointed by the executive stand higher in public estimation and their opinions have greater weight.

Such courts are certainly a greater protection to those guilty of no wrong, but who have been so unfortunate as to incur the displeasure of an excited community.

Nevertheless, despite the lessons of history and the reasons contra, it is proposed in this twentieth century that the tenure of the judges shall again be during pleasure only,--this time during the pleasure of the majority of the electorate. The proposition is not stated so baldly by its proposers. They phrase it as the right of the people to remove or recall unsatisfactory public servants, whether judges, or governors, or other officials. They propose that at the request of a certain small percentage of the electorate, setting forth their dissatisfaction with a judge, he may be removed by a majority of the voters. As precedents for their proposal they point triumphantly to the provision of the British Act of Settlement that judges should be removable by the crown upon the request of both Houses of Parliament, and to similar provisions in many of our state const.i.tutions.

Of course, there should be lodged somewhere the power to remove judges proven to be unworthy of their high office, or incapable of performing its high duties, but it should be lodged in a body of men before whom the accused judge can appear in person or by counsel, hear the complaints and face the witnesses against him, and adduce evidence and argument in reply,--and who can on their part see the witnesses and hear the arguments before deciding. That was the opinion of the British Parliament in the few cases presented to them, and the state legislatures in this country have generally entertained the same opinion. It was also held by Parliament that the address for removal should state the reasons therefor. In 1855 Governor Gardner of Ma.s.sachusetts declined to remove a judge of probate on address by the legislature because no sufficient grounds were stated in the address.

He said that in every instance then on record full reasons for removal had accompanied the address.

The const.i.tutional provision for removal by address evidently was not designed to lessen the impartiality and independence of the judge by subjecting him to removal at the mere will of the executive and legislature, but that he might be removed for corruption, neglect of duty, incapacity, immorality, or other disgraceful conduct, after notice, hearing, and deliberation. For the executive and legislature, or even the majority of the people, to remove a judge because they do not like his opinions as to what the const.i.tution requires or forbids them to do, would destroy the independence of the judges and thus deprive the citizen of all security for his rights and liberties under the const.i.tution,--would be despotism.

The princ.i.p.al argument for lessening the independence of the judges and making them more subservient to the inconstant majority seems to be that otherwise the judges will misuse their power and impede the operation of statutes they do not themselves approve of. The argument has little or no foundation in fact. Perhaps among the hundreds, if not thousands, of cases of holding a statute unconst.i.tutional a few may seem to have been so decided because the judges thought them unwise and oppressive. Some expressions in judicial opinions have been unfortunate in that respect, but the courts everywhere in this country, now if not at first, disclaim any such power. The same Chief Justice Marshall, who had so convincingly stated the duty of the judiciary to refuse effect to unconst.i.tutional statutes, later in _McCulloch_ v. _Maryland_, 4 _Wheat._ 316, disclaimed for the courts all pretensions to any power to inquire into the necessity of any statute, or in any way to interfere with the discretion of the legislature. In strong and explicit language other courts have disclaimed such pretensions. The Minnesota court in _State_ v.

_Corbett_, 57 _Minn._ 345, held that courts were not at liberty to declare a statute unconst.i.tutional because it is thought by them to be unjust or oppressive, or to violate some natural, social, or political right of the citizen, unless it can be shown that such injustice is prohibited, or such rights protected, by the const.i.tution. The Pennsylvania court in _Com._ v. _Moir_, 199 _Pa. St._ 534, used this language: "Much of the argument and nearly all the specific objections advanced are to the wisdom and propriety and to the justice of the statute and the motives supposed to have inspired its pa.s.sage. With these we have nothing to do. They are beyond our province and are considerations to be adduced solely to the legislature." The court of West Virginia in _Slack_ v. _Jacob_, 8 _W. Va._ 612, said: "That the judges are convinced that a statute is contrary to natural right, absolute justice, or sound morality does not authorize them to refuse it effect." The court of Washington in _Fishing Co._ v. _George_, 28 _Wash._ 200, held that "a statute cannot be ignored by the courts because leading in its application to absurd, incongruous, or mischievous results." A few cases may also be cited showing how relentlessly this disclaimer is applied. The court of New York in _Kittinger_ v. _Buffalo Traction Co._, 160 _N. Y._ 377, held that the courts had no power to inquire into the motives inducing legislation and could not impute to the legislature any other than public motives.

The Pennsylvania court in _Sunbury R.R. Co._ v. _People_, 33 _Pa. St._ 278, had urged upon it the argument that the statute in question had been "pa.s.sed in fraud of the rights of the people." The court held that, if true, that fact would not authorize it to refuse it effect.

The Tennessee court in _Lynn_ v. _Polk_, 76 _Tenn. St._ 121, was asked to declare a statute ineffective because its enactment was procured by bribing members of the legislature. The court held it could not do so.

The Missouri court in _Slate_ v. _Clarke_, 54 _Mo._ 17, had before it a statute authorizing the licensing of bawdy houses and was urged to declare it unconst.i.tutional because against public policy and destructive of good morals. The court held it had no such power. The Justices of the Maine Supreme Court in an opinion reported in 103 _Maine_ 508 stated the principle as follows: "It is for the legislature to determine from time to time the occasion and what laws are necessary or expedient for the defense and benefit of the people; and however inconvenienced, restricted, or even damaged particular persons and corporations may be, such general laws are to be held valid unless there can be pointed out some provision in the State or United States Const.i.tution which clearly prohibits them."

Further, it is a maxim of the judiciary, from the beginning and now, that no statute should be refused effect unless clearly contrary to some provision of the const.i.tution,--unless the conflict is evident beyond a reasonable doubt. This is a maxim, a canon of interpretation, that courts always have in mind and apply in considering the question of the const.i.tutionality of a statute.

Thus scrupulous are the courts to keep within their proper sphere, to respect the limits of their powers. If the legislatures would be equally scrupulous, would themselves refrain from infringing on those rights and liberties of the citizen guaranteed by the const.i.tution, there would be less restriction, less friction, less turmoil, less need of the judicial check, less injustice.

But the complaints against the courts are not all because of their holding statutes unconst.i.tutional. Many have felt that courts sometimes erred in having too much respect for the legislative power and because of that respect have allowed const.i.tutional rights and liberties to be sacrificed at the behest of majorities and often at the behest of active, interested minorities more insistent than the inert majority. The decision of the United States Supreme Court in the _Charles River Bridge_ case, 11 _Peters_ 420, was mourned by such men as Webster, Kent, Story, and others as breaking down the safeguards of the const.i.tution. The decision in the _Slaughter House_ cases was regarded by many able jurists as ignoring that provision of the XIVth amendment to the Federal Const.i.tution forbidding any denial to any one of the equal protection of the laws. The _Elevator_ cases, holding that elevators were public utilities and therefore subject to public control as to charges for service, though the owners had no special franchise, no part of public power, are even now thought to have made a wide breach in the const.i.tutional barriers against the invasion of private rights. The decision in the _Chinese Deportation_ cases, 149 U. S. 698, shocked the sense of justice of many. It was to the effect that Congress could empower the executive to arrest upon its own warrant any person it claimed to be an alien unlawfully residing in the United States and to deport him without trial, unless he could affirmatively prove to the satisfaction of a single judge (to be selected by the executive), and by a specified kind of evidence only, that he was not guilty, however ample and probative other evidence might be adduced and however impossible to produce the specified evidence. Justices Fuller, Field, and Brewer vigorously dissented on the ground that such action by the executive, though under the authority of Congress, was in violation of the const.i.tutional guaranties against arrest without judicial warrant, against deprivation of liberty without trial by jury and due process of law.

Justice Brewer after quoting Madison, that banishment is among the severest of punishments, went on to say: "But punishment implies a trial. 'No person shall be deprived of life, liberty or property without due process of law.' Due process of law requires that a man be heard before he is condemned, and both heard and condemned in the due and orderly procedure as recognized by the common law from time immemorial."

In my research I have found more cases where it has seemed to me the courts have construed const.i.tutional guaranties too strictly, than where they have construed them too liberally. The tendency has been rather away from the enforcement of const.i.tutional guaranties and to allow legislative encroachments upon them. I regard this as a very dangerous tendency. Perhaps the encroachments have not been at first perceived, but I think courts should be vigilantly on the watch for them, otherwise individual rights guaranteed to the people by the const.i.tution may be gradually weakened and finally destroyed. This duty of the courts was declared in the case of _Boyd_ v. _United States_, 116 _U. S._ 616 at page 641--where in refusing effect to a statute requiring the production of his books and papers by a defendant in proceedings for forfeiture, the court said: "Though the proceeding in question is devested of the aggravating effects of actual search and seizure, yet it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconst.i.tutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that const.i.tutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the const.i.tutional rights of the citizen and against any stealthy encroachments thereon. Their motto should be _obsta principiis_."

A review of the cases in which the courts have been called upon to decide whether a statute breaks over the const.i.tutional limitation will demonstrate to any dispa.s.sionate person that upon questions of expediency, of the general welfare, or even of justice, the judges rarely if ever oppose their opinion to that of the legislators. The courts do not obstruct the current of progress; they only keep it from overflowing its banks to the devastation of the const.i.tutional rights of the people.

CHAPTER IX

THE NECESSITY OF MAINTAINING UNDIMINISHED THE CONSt.i.tUTIONAL LIMITATIONS AND THE POWER OF THE COURTS TO ENFORCE THEM.--CONCLUSION

Despite the lessons of history showing the need of specified limitations upon the legislative power to ensure personal liberty and justice, it is still urged by the impatient that this check upon legislative action should be removed, or at least that the legislature should itself be the judge of the const.i.tutionality of its acts, and that the legislatures as the representatives of the people may be trusted to observe const.i.tutional requirements and limitations. From the beginning, however, the people of this country have not fully trusted their legislatures. They have not only set bounds to legislative power, but within those bounds they have imposed in most instances the check of an executive veto. They have also complained of their legislatures far more loudly than they have of their courts, and latterly have subjected them to the initiative and referendum and in some instances to the recall.

Perhaps the judgment of those urging that the legislature should be trusted not to trespa.s.s on the const.i.tutional rights of the people may be enlightened by recalling some instances of legislative action upon const.i.tutional questions left to its decision by the const.i.tution itself. It is hardly necessary to cite instances of the abuse of this power in the matter of determining who are ent.i.tled to seats in the legislature. It is common knowledge that, in the past at least, both law and fact have often been over-ridden for partisan advantage. As an ill.u.s.tration of how far a legislature will sometimes go in this direction I may cite a recent instance in Maine. The const.i.tution of that state provides (Art. IV, Pt. 3, Sec. 11) that "no person holding any office under the United States (post officers excepted) shall have a seat in either house of the legislature during his continuing in such office." This provision was in the original const.i.tution of 1821, and until the legislative session of 1913 the exception of "post officers" was understood to refer to officers in the postal service and such officers often held seats in the legislature without question. In 1913, however, the House of Representatives held for awhile that the exception referred only to military officers of the United States stationed at military posts within the state, though no such officer had ever held a seat in the legislature.

That legislatures are p.r.o.ne to disregard const.i.tutional provisions is also manifest in the vast amount of special legislation enacted despite const.i.tutional prohibitions of such legislation. There are also numerous instances where legislatures while perfunctorily heeding the letter of the const.i.tution consciously violate its spirit and evade its requirements. In many states there is a const.i.tutional provision that no legislative act shall become effective until after a specified time has elapsed from its enactment "except in cases of emergency," which emergency, however, is to be declared in the act itself. This provision, of course, is to give the people time to understand the statute and prepare to obey it. The word "emergency" in the exception implies a sudden, unexpected happening. It is defined in Webster as a "pressing necessity; an unforeseen occurrence or combination of circ.u.mstances which calls for immediate action or remedy." In Indiana in one legislative session, out of 200 acts, 155 were made to take effect at once by a recital that an emergency existed therefor. In Illinois a two-thirds vote of all the members elected to each house is required for the adoption of the emergency clause. Among the acts of the last session containing the emergency clause was one appropriating $600 for printing the report of a monument a.s.sociation. In Tennessee the exception was of cases where "the public welfare" required an earlier date. Out of 265 laws pa.s.sed at one session 230 contained the declaration that the public welfare required their going into effect immediately. In Texas the const.i.tution provides that no bill shall be pa.s.sed until it has been read on three several days in each house and free discussion allowed thereon, but that "in cases of imperative public necessity four-fifths of the house may suspend the rule." Out of 118 laws pa.s.sed at one session all but five contained the statement that "imperative public necessity" required suspension of the rule.

Legislatures also seem p.r.o.ne to disregard the const.i.tutional provision for the referendum despite the strong, explicit language of that provision. In California the const.i.tutional provision is as follows: "No act shall go into effect until ninety days after the adjournment of the legislature which pa.s.sed such act ... except urgency measures necessary for the immediate preservation of the public peace, health or safety, pa.s.sed by a two-thirds vote of all the members elected to each house." Surely the language of the exception is strong and forceful. Two-thirds of all the members elected to each house must hold that the measure is urgent, not admitting of delay, that the public peace, health or safety, not the mere interests or convenience of individuals or localities, is threatened and that the danger is imminent, requiring immediate action. Among other instances, the legislature of California at its special session of 1911 adjudged an act to validate certain defective registrations of voters in some munic.i.p.alities to be an urgency measure within the language of the exception; also an act to change the boundaries in a Reclamation District. Oregon has a similar const.i.tutional requirement and exception which its legislature does not always observe. At the session of 1911, among other cases the legislature adjudged an act authorizing a county to levy a tax for advertising the county's resources to be within the exception; also an act dividing a road district; but an act appropriating money to guard against the bubonic plague was not declared to be within the exception. In Oklahoma with a similar const.i.tutional provision and exception, the legislature seems to have run riot. At the session of 1910 a very large proportion, if not a majority, of the statutes were adjudged to be within the exception. Among them was an act to pay the mileage and per diem of the members; an act providing stenographers for the Supreme Court; an act authorizing the sale of four tracts of land at public sale; an act to pay J. J. O'Rourke $238.10 for room rent. On the other hand, an act to reimburse the Governor $5000 expended by him for state purposes, and an act to reimburse a sheriff $4000 expended by him in the support of state prisoners were not so considered.

True, Oklahoma is a new and radical state, but let us turn to the extreme east, to Maine with its heritage of law-abiding traditions from the parent state of Ma.s.sachusetts. Maine has also adopted the referendum in language similar to that in the California const.i.tution, including the exception. The state had got along quite comfortably without making Lincoln's birthday a legal holiday, but in 1909 the legislature awoke to the imminent danger to the public peace, health or safety of the state in longer delay and so established such a holiday at once without according to the people their right of review. The town of Eden, in which is situated Bar Harbor, a summer resort, had by vote for sometime excluded automobiles without any apparent danger to the public peace, health or safety, but at its last session in 1913 the legislature by a two-thirds vote of all the members elected to each house adjudged that the public peace, health or safety would be imperiled by postponing for ninety days the operation of an act authorizing a repeal of the vote.

In all the instances cited, which are but few out of many, it is difficult to see how the ninety days' postponement of the operation of the acts cited could imperil the peace, health or safety of the public, however much it might inconvenience or annoy individuals or localities. These instances should, however, throw considerable doubt upon the proposition that the const.i.tutional rights of the people are safe in the hands of the legislative department without the check of the judiciary. I have somewhere seen the statement that during recent years upwards of 500 acts of federal and state legislation have been held by the courts to be in violation of some const.i.tutional provision, and that this fact should arouse the people to put some check on such exercise of the judicial power. On the contrary, it should arouse the people to insist on the retention of that power, and to elect wiser legislators who will more faithfully respect their oaths to observe const.i.tutional limitations.