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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 to the sum of
two right angles, it was always true and always will be true, true at
the poles and at the equator, true among all peoples and in all
countries, true alike in monarchies, oligarchies, and democracies.

Truth is also single. There are no different kinds of truth, though
there may be innumerable kinds of propositions of which truth may or
may not be predicated. Whichever criterion the philosophers may
finally agree upon, it will hold in all propositions alike. The truth
of a proposition in mathematics is the same as the truth of a
proposition in any other science, physical, social, political, or
theological. It can be no more nor less true in each and all. Again,
in every science, social and political as well as others, and as to
every proposition in any science, the truth is to be discovered, not
assumed by mere convention; and men must discover it and discover it
fully at their peril. Failure even after the utmost effort will not be
forgiven. If the truth be found it will be a sure guide in life. If it
be not found the lives of men will so far go awry. That it may be
difficult to find, that we may never be sure we have found it, makes
no difference.

Are there any attributes of justice of which we can speak so
confidently as being necessary, inherent, and self-evident? That
justice ranks next to truth, if not with it, seems to have been, and
to be, the general judgment of mankind. It has engaged the thought and
fired the imagination of the greatest minds. A few quotations from
such, ranging from ancient to modern times, will illustrate this.
The Hebrew Psalmist gloried that "justice and judgment" were the
habitation of Jehovah's throne. Aristotle wrote, "political science is
the most excellent of all the arts and sciences, and the end sought
for in political science is the greatest good for man, which is
justice, for justice is the interest of all." Early in the 12th
century the jurist Irnerius, distinguished for his learning and
for his zeal in promoting the revival of the study of law and
jurisprudence, and also as the reputed founder of the famous Law
School at Bologna, imaged justice as "clothed with dignity ineffable,
shining with reason and equity, and supported by Religion, Loyalty,
Charity, Retribution, Reverence, and Truth."

Six centuries later Addison, famed as a clear thinker and writer,
thus wrote of justice: "There is no virtue so truly great and godlike
as justice.... Omniscience and omnipotence are requisites for the full
exercise of it." Almost in our own time Daniel Webster, called in his
day the great expounder and even now reckoned among the greatest of
men intellectually, in his eulogy upon Justice Story thus
apostrophized justice: "Justice is the great interest of man on earth.
It is the ligament which holds civilized beings and civilized nations
together. Wherever her temple stands and so long as it is duly
honored, there is a foundation for social security, general happiness,
and the improvement and progress of our race." Perhaps, however, none
of these laudations is so vividly impressive as is the pithy remark of
an old English judge that "injustice cuts to the bone."

But what is this justice, declared to be so great a virtue, so
ineffable, so supremely important? I have said we feel certain of some
attributes of truth. Do we know or can we know anything certain about
justice? Is it something above and apart from the will of men, or is
it simply a matter of convention among men? Is it immutable, or does
its nature change with changing times and conditions? If mutable, does
it change of itself or do men change it? Is it universal or local, the
same everywhere or is it different in different localities? Is it the
same for all men and races of men or does it differ according to
classes and races? Again, is it single or diverse in its nature? Is
there more than one kind of justice? We hear of natural justice,
social justice, industrial justice, political justice. What do they
who use those terms mean by them? Do nature, society, industry,
politics, each have a different criterion? Still again, and briefly,
is justice an inexorable law like the law of gravitation or can its
operation have exceptions? Is it simply a quality of action or
conduct, or, as stated by Ulpian, is it a disposition or state of
mind? Finally, is it a reality or, as Falstaff said of honor, is it
after all "a word," "a mere scutcheon?"

I am not so presumptuous as to venture an answer to any of these
questions except perhaps the last. As to that, I appeal to our
consciousness, to our innate conviction that there does exist
something, some virtue, some sentiment, however undefinable in terms,
holding men together in society despite their natural selfishness, and
without which they would fall apart. It is this virtue, this ligament
of society, that we call justice. We feel that the word is not a mere
word, but that it connotes a vital reality in human relationship. If
this reality be ignored, men cannot be held together in any society.

If justice be the greatest good, as so generally asserted, then its
negative, or injustice, must be the greatest evil. Hence error in
men's opinions of what is justice will work that greatest evil.
Society as a whole is liable to error in respect to justice; has often
been mistaken in the past and may be mistaken today. The individuals
composing society are seldom, if ever, wholly disinterested and
dispassionate in their judgments. Each individual is prone to believe
that what is apparently good for himself or his group or class, is in
accord with justice. Himself persuaded that he is battling for
justice, he does not see that he may be battling only for some
advantage over others, for some individual relief from common burdens,
for some privilege not to be accorded to others; does not see that
what he is battling for may cause injustice to others. Through
ignorance of the real nature of justice, the grant to one of his plea
for what he calls justice may work grievous injustice to others. So
when altruists, warm with sympathy, obtain the enactment of laws
intended for the betterment of the less fortunate, they may at times
do injustice to others and even to those they hoped to benefit.
History records many instances where laws intended to insure justice
had the contrary effect. Many a statute designed to prevent oppression
has itself proved oppressive in operation. Many a theory of justice
has been found to work injustice. A conspicuous and familiar instance
is found in the history of the French Revolution. The Jacobins
believed that their theories if given effect would usher in the reign
of justice in France. They obtained power and exploited their theories
only to bring in the Reign of Terror, that reign of terrible
injustice.

As mistakes and grievous mistakes have been made in the past as to
what is justice, so they will be made now and in the future, and can
be lessened only by greater wisdom and forethought, by greater effort
to consider justice apart by itself, with philosophical detachment,
with minds unclouded by pity, sympathy, charity, and other like
virtues, on the one hand, or by envy, hate, prejudice, and like evil
sentiments, on the other. True, men are more enlightened now and
education is more general, but society is more complex, with more
diverse and conflicting interests, than formerly. The social mechanism
is now so intricate that even a slight disturbance in one part may
disarrange the whole. Injustice to one may injure the many. Hence the
duty of ascertaining as completely as possible the real nature of
justice is as imperative today as ever. As declared by Ulpian, this
duty is especially incumbent upon those who have to do with the
framing or administration of the laws, since justice can be enforced
only by law.

In any inquiry into the nature of justice we get little help from the
wisdom of the ancients. They wrestled with the question but seem to
have been as puzzled as we of today. Indeed, Plato represents the sage
Socrates as frankly confessing his inability to answer satisfactorily
the persistent question "What is justice?" The question comes up for
discussion by Socrates and some friends at the home of Cephalus at the
Piraeus. Socrates criticizes and punctures the definitions advanced by
the others until Thrasymachus, apparently with some heat, challenges
Socrates to give an answer of his own to the question "what is
justice?" and not to content himself, nor to consume time, with merely
refuting others. After some further discussion of various aspects of
the question, Socrates finally says, "I have gone from one subject to
another without having discovered what I sought at first, the nature
of justice. I left the inquiry and turned away to consider whether
justice is virtue and wisdom, or evil and folly, and when there arose
a further question about the comparative advantages of justice and
injustice I could not refrain from passing on to that. The result of
the whole discussion has been that I know nothing at all. I know not
what justice is and therefore am not likely to know whether or not it
is a virtue, nor can I say whether the just man is happy or unhappy."
Granting that the confession may have been intended ironically, the
further discussion did not result in any practical solution, even if
in one possible in Plato's ideal, but impossible, state. Indeed, the
inquiry is not yet closed and will not be until the millennium.

Still, upon a question so old, so important, so persistent, so
ingrained in human society, and even now receiving such diverse and
conflicting answers, a brief consideration of the earlier beliefs and
theories may not be useless. As said by Bishop Stubbs, the historian,
"The roots of the present lie deep in the past and nothing in the past
is dead to him who would learn how the present came to be what it is."
The roots should be examined by him who would understand the tree.

In Homer we get a glimpse of a theory of his time, to wit, that each
separate decision given by the magistrate in any litigated controversy
was furnished to him by Zeus specially for that case. The Greek word
for such a decision was _themis_, and it was supposed that somewhere
in the Pantheon was a corresponding deity whose special function was
to furnish the appropriate themis for each case. This deity was
shadowily personified as the goddess Themis, the daughter of heaven
and earth, the companion and counselor of Zeus. It was she who
summoned gods and men to council and presided unseen over their
del