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                          CONCERNING JUSTICE

                                  BY
                          LUCILIUS A. EMERY


                   NEW HAVEN: YALE UNIVERSITY PRESS
                      LONDON: HUMPHREY MILFORD
                       OXFORD UNIVERSITY PRESS
                              MDCCCCXIV




                           COPYRIGHT, 1914
                       BY YALE UNIVERSITY PRESS

               First printed August, 1914, 1000 copies




                            TO MY CHILDREN

                          HENRY CROSBY EMERY
                      ANNE CROSBY EMERY ALLINSON




        THE ADDRESSES CONTAINED IN THIS BOOK WERE DELIVERED IN
        THE WILLIAM L. STORRS LECTURE SERIES, 1914, BEFORE THE
        LAW SCHOOL OF YALE UNIVERSITY, NEW HAVEN, CONNECTICUT.




                               CONTENTS


  CHAPTER                                                       PAGE
     I. THE PROBLEM STATED. THEORIES AS TO THE SOURCE OF
        JUSTICE. DEFINITIONS OF JUSTICE                            3

    II. THE PROBLEM OF RIGHTS. DIFFERENT THEORIES AS TO THE
        SOURCE OF RIGHTS                                          31

   III. THE PROBLEM OF RIGHTS CONTINUED. THE NEED OF LIBERTY
        OF ACTION FOR THE INDIVIDUAL                              43

    IV. JUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE
        INDIVIDUAL AND THE SAFETY OF SOCIETY                      56

     V. JUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL
        ACTION. THE BEST FORM OF GOVERNMENT                       77

    VI. THE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE
        POWERS OF THE GOVERNMENT. BILLS OF RIGHTS                 95

   VII. THE INTERPRETATION AND ENFORCEMENT OF CONSTITUTIONAL
        LIMITATIONS NECESSARILY A FUNCTION OF THE JUDICIARY      110

  VIII. AN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR
        JUSTICE                                                  121

    IX. THE NECESSITY OF MAINTAINING UNDIMINISHED THE
        CONSTITUTIONAL LIMITATIONS AND THE POWER OF THE
        COURTS TO ENFORCE THEM.--CONCLUSION                      146




CONCERNING JUSTICE




CHAPTER I

THE PROBLEM STATED. THEORIES AS TO THE SOURCE OF JUSTICE. DEFINITIONS
OF JUSTICE


For centuries now much has been written and proclaimed concerning
justice and today the word seems to be more than ever upon the lips of
men, more than ever used, but not always appositely, in arguments for
proposed political action. Hence it may not be inappropriate to the
time and occasion to venture, not answers to, but some observations
upon the questions, what is justice, and how can it be secured. It was
declared by the Roman jurist Ulpian, centuries ago, that students of
law should also be students of justice.

By way of prelude, however, and in the hope of accentuating the main
question and presenting the subject more vividly by comparison and
contrast, I would recall to your minds another and even more
fundamental question asked twenty centuries ago in a judicial
proceeding in distant Judea. It is related that when Jesus, upon his
accusation before Pilate, claimed in defense that he had "come into
the world to bear witness unto the truth," Pilate inquired of him
"What is truth?"; but it is further related that when Pilate "had said
this he went out again unto the Jews." Apparently he did not wait for
an answer. Perhaps he repented of his question as soon as asked and
went out to escape an answer. Men before and since Pilate have sought
to avoid hearing the truth.

Indeed, however grave the question, however essential the answer to
their well-being, there does not seem to be even now on the part of
the multitude an earnest desire for the truth. Their wishes and
emotions cloud their vision and they are reluctant to have those
clouds brushed aside lest the truth thus revealed be harsh and
condemnatory. The truth often causes pain. As said by the Preacher,
"He that increaseth knowledge increaseth sorrow." People generally
give much the greater welcome and heed to him who tells them that
their desires and schemes are righteous and can be realized, than to
him who tells them that their desires are selfish or that their
schemes are impracticable. It has always been the few who have sought
the truth, resolute to find it and declare it, whether pleasant or
unpleasant, in accord with the wishes of mankind or otherwise. Such
men have sometimes suffered martyrdom in the past, and often incur
hostility in the present, even when seeking that truth on which alone
justice can securely rest.

Nevertheless, so closely linked are truth and justice in the speech,
if not the minds, of men, there should be some consideration of
Pilate's question. Whether truth is absolute or only relative has been
perhaps the most actively discussed topic in the field of philosophy
for the last decade. Into this discussion, however, we need not enter,
for such discussion is really over the problem of determining the
proper criterion of truth. Wherever be this criterion, whether in some
quality of inherent rationality or in some utilitarian test of
practicability, the truth itself has some attributes so far
unquestioned and of which we may feel certain as being inherent,
necessary, and self-evident.

Truth is uncompromising. It is unadaptable; all else must be adapted
to it. It is not a matter of convention among men, is not established
even by their unanimous assent, and it does not change with changes of
opinion. It is identical throughout time and space. If it be true now
that since creation the earth has swung in an orbit round the sun, it
was true before the birth of Copernicus and Galileo. If it be true now
that the sum of the three angles of a triangle is equal