aid in the determination of particular controversies until much more has been agreed upon. As Professor More has pointed out, if we define justice as the act of right distribution, what do we mean by right? Or if we say that justice consists in giving to every man his due, how shall we determine what is due to him? Have we any general principle by which these inevitable questions can be answered? If all that we have done is to conclude that it is just that a man shall have what it is right for him to have, or that he shall have what he deserves, what shall be our formula as to right and desert? Unfortunately, for either of these questions we have no short and conclusive answer, and the determination of them, if they can be determined at all, would take us into wide and disputed fields.

Must we then conclude that, notwithstanding all that has been said about the importance and supremacy of justice, and the function of law and courts and lawyers in securing it, we nevertheless have no definite principles to guide us and no certain formula by which we can discover what we seek? If that is the conclusion, then it may be urged that our courts have been misnamed and that the end for which we seek is a vague and unattainable one.

It must probably be confessed that we have no precise and definite conception of justice, and it is certainly true that, whatever may be our ideal, we are unable to frame any formula of justice which shall be at once concise and definite and, at the same time, accurately inclusive and exclusive.

Notwithstanding that, however, I think we are not ready to concede that there is no such thing as justice, or that we are not able, in many cases at any rate, to form a concept of it which will furnish us with at least a general principle of conduct. As we search for it, more and more, we may be compelled to revise our statements and enlarge our views. We may not find it so simple as we thought, but it may be really a happy thing, nevertheless, if we are compelled to leave the boundaries always open for the reception of new ideas.

I.

Before coming to any final conclusion, however, respecting the administration of justice in our courts, it may be desirable to point out that. although our courts are commonly spoken of as courts of justice, and though they may have been

that in origin, they are not now, distinctly and merely, courts of justice at all, but are courts of law. Courts may undoubtedly exist without any formulated body of law, and primitive courts were unquestionably of that sort. It seems, however, to be a natural if not an inevitable process for courts to develop into courts of law, as the justice administered in individual cases crystallizes into justice administered in classes of cases. Moreover, if we will stop to think about it, we shall see that a vast portion of our law has and can have no necessary relation to any abstract principle of justice at all. It is a growth or development of the rules, sometimes arbitrary, sometimes accidental, sometimes based on custom, sometimes on mere convenience, which in the course of many years have been developed to regulate the affairs of men with reference to matters which involve no moral element. Paradoxical as it may seem, it is true with reference to a vast portion of our law, that if the original rule had been precisely the opposite of the one adopted, justice would have been in no sense violated and convenience might have been as fully served. Take, for example, our vast body of rules respecting land and interests therein and titles thereto and the transfer of such interests or titles. While the question of any ownership of land may involve a moral element, the particular forms of titles and estates and the rules of procedure which may happen to prevail in any given system or at any particular time may involve no question of injustice at all, beyond the fact that, when once they have been agreed upon, it will be just that they shall be observed until they have been duly changed. * *

*

On the other hand, there are many cases in which the moral element is involved, such as crime and its punishment. Numerous questions arising in the field of tort certainly have a moral content, as will be readily seen, although there are still many questions in this field, like most of those falling under the prolific head of negligence, which have no other moral aspect than conformity to the habits and standards of the community, whatever they may chance to be. when once they have become established. The question also of the performance of promises may involve a moral aspect, though the vast mass of our rules respecting the form of the contract, the necessity of writing, the capacity of the parties, the necessity of consideration, and the like, may

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involve none.

A single illustration from the tort field may serve to show how even a general formula of justice may be appealed to. It has been much disputed in very recent years, particularly in the matter of employers' liability, as to what are the lawful limitations of liability without fault. Much of the discussion, unfortunately, has concerned itself with the mere question of the constitutionality of the statutes. A very general sentiment of justice may here suffice. If there be anything in the instinctive sentiments of animals and men, it shows itself in the repudiation of responsibility where no wrong can be imputed. Even the dog seems to distinguish between merited punishment and being beaten for acts he did not commit. The child's breast swells with injustice upon being condemned for that which he was not morally responsible, and even so general a formula of justice as "To every man according to his deserts," is sufficient to condemn any general conclusion that a man may be held liable without fault, and to brand as sophistical and inconclusive the alleged considerations of policy or otherwise which seek to justify it.

The fact that there are already in our law a number of cases in which men are held liable without fault, seems neither to furnish proof of the justice of the case, nor reason why the number of such cases should be increased. The common law, for example, while it had a less rigorous rule to secure the safety of passengers, held the common carrier of goods to a degree of liability which made him practically the insurer of their safety. This rule was thought to be justified by consideration of policy at the time of its establishment, but that such a rule is just under all circumstances in modern times I suppose no one would contend. The common law liability of the master for the acts of his servant has been carried to a degree which I suppose practically every considerate person would now concede to be unjust, although many considerations of policy and otherwise are advanced to support it. Other instances might be mentioned, but it is not necessary for the present purpose. The principle,

however, is important. The danger of violating it is insidious. The excuse is usually that it is merely applying or extending an already established doctrine. We need to remember, as has already been stated, that the mere fact that some unjust rules have been allowed to creep into our law certainly furnishes no reason why we should have more.

It is, of course, to be conceded that nearly all general rules, however just their application may ordinarily be, will occasionally, in a given case, work injustice. This is undoubtedly much to be deplored, though it is probably not to be avoided if the rule is to be maintained. The evil consequence of attempting to introduce some personal or temporary exception in order to avoid the operation of such a general rule, because it will work injustice in a particular case, is well recognized, and often finds expression in the familiar adage that "Hard cases make bad law." No system of law, moreover, attempts to enforce all just conclusions by law. The alleged maxim that wherever there is a right there must be a remedy does not mean that wherever there is a moral right there must be a legal remedy. Many rights are left to other than legal machinery for enforcement.

The institution, peculiar to our system, of a separate court of equity has furnished many opportunities for doing justice in cases to which the legal rule did not extend or in which for some reason the operation of the legal rule could be avoided. Whatever they may have been in their origin, however, our courts of equity have long ceased to be tribunals in which purely equitable considerations applicable only to a particular case may find expression. Rightly or wrongly, our courts of equity tend to become courts administering what is called equity in ac cordance with more or less general rules, and they rarely venture in these days to strike out into wholly new fields.

It is sometimes urged that our courts of law should adopt more fully the ideas originally underlying the administration of equity, or, at any rate, that judges should be clothed with and

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should exercise a very much wider degree of discretion for the furtherance of justice in particular cases than they now possess and exercise. While there are undoubtedly cases in which a greater degree of discretion might safely be exercised, two considerations at least seem at present to stand in the way of the wide adoption of such a rule. One is that both in England and America there is a deep rooted and long standing distrust of any large degree of discretionary power vested in any official or tribunal; and the second is that discretion in the determination of the rights and liabilities which arise from ordinary business transactions is fatal to the continuance of any widespread business dealings among men. Dealings involving faith or credit in the future can only thrive where some more or less definitely settled rule, rather than mere discretion, is to determine what the future shall bring forth.

Even if it should be agreed that certain existing rules of law were unjust, it would not ordinarily be within the province of courts to change them when once they have become established. Courts do, of course, occasionally overturn rules established by judicial decisions, and it is perhaps true that they ought to do it more frequently than they do, but the evil effects of an ex post facto change of an established rule-and this is practically the only way in which courts can deal with it are so obvious that courts are naturally reluctant to undertake it. With respect of rules laid down by the legislature, courts will practically never change them because they are thought to be unjust, nor will the courts refuse to enforce new statutes for that reason, unless the legislature is found to have exceeded its constitutional authority.

II.

Although, as has been stated, the lawyer's immediate field may be thought to be the administration of justice in the courts, his interest in this other field can be only secondary, not only because as a human being he also is subject to the institutions which may prevail, but because of the fact that, from the beginning of our government to the present, lawyers have always taken a leading, if not a predominating,part in legislation and government.

It will be obvious at once that we have here an entirely different situation, characterized by wholly different and less definite procedure. In the field of ordinary law, if an individual believes that his right has been denied him, or injustice has been done him by some other individual, he finds ready to his hand certain and definite ma

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chinery by which he may bring the question to a determination. Here are courts and officers and process, of which he may freely avail himself, and through which he may hope to secure justice. But in the other field how different is the situation! The individual, who feels that he is deprived of his right by the operation of the existing institutions of society, can find nowhere ready to his hand any tribunal whose duty it is to hear his complaint, and which is clothed with power to grant him the necessary relief. The evil that he complains of may go to the root of all existing legal institutions. Even if he complains, his voice may seem to be merely that of one crying in the wilderness, and if there be any tribunal to which he may appeal, it is merely to the vague, largely unorganized, uncertain, slow tribunal of public opinion. To such a tribunal the single man or even large numbers of men may often appeal in vain, as the whole history of human progress demonstrates. In despair of making himself otherwise heard, he may resort to violence, revolution or the destruction of institutions.

Notwithstanding all the difficulties involved, there can be no general and permanent justice among men unless there be justice in these fundamental relations and institutions which control their lives and fortunes. It is here that the greatest dissatisfaction is being manifested at the present moment. Many people, in many places, are calling loudly for what they term justice. Part of them, it is obvious, have no definite idea in mind. It is merely a "vague unrest," a "nameless longing" which fills their breast. Others have if not a principle, at least a program. Others, still, are searching with real insight and sympathetic interest into the situation, and are seeking to find a remedy. Unfortunately, some of these are tempted to proclaim the remedy before they have really found it. Many of the proposed remedies will not bear analysis. Nevertheless, the problem must be confronted. What is meant by justice in this field? Unfortunately, our concepts are here less definite than they were in the field of judicial justice, and the whole situation makes a formula of justice still more difficult to agree upon than it is in that field. In the field of judicial justice we may get one man separated from his fellows, the opposite party will be definite and certain; the issue will be concise and capable of being framed into some specific demand; but in the field of so called social justice the complainants may be whole masses of

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without compensation, I wish merely to call attention to what has been going on in this country from the beginning, and especially to events a large part of which have actually transpired within my lifetime. Soon after the establishment of the Federal Government, the United States came into what was claimed to be the unquestioned ownership of large tracts of unoccupied land in the west and northwest. This area was increased by the Louisiana Purchase, by the events following the war with Mexico, and by discovery and settlement in the northwest, until the United States came to be the so-called owner of a vast territory of unoccupied and unproductive public land. To secure settlers to develop this land was thought to be a matter of great public importance, and became the subject of a settled public policy. Settlers were invited to enter upon, occupy and improve it. Immigration was welcomed. Railroads and other highways were encouraged to make the territory accessible and hasten its settlement, and their projectors were often offered portions of the land if they would raise the money and construct their works. Interests in it were offered as bounties or compensation to soldiers and sailors for their patriotic services in times of war. To all these, the government offered to transfer a so-called absolute title to the land, which title the government purported to assure to the settler and to his heirs and assigns forever. Acting upon these invitations hundreds of thousands of men and women entered upon the endeavor to settle and improve the country. Leaving their homes and associations in the east, cutting themselves off not infrequently from friends and society, exposing themselves often to attacks by savage Indians, braving the diseases and discomforts incident to a new territory, they took upon themselves all the hardships and privations of the pioneer. They subdued forests, removed stones from fields, drained swamps, built roads and bridges, created governments, erected school houses and churches, built towns and villages, established society, and in general performed all the labor and endured all the sacrifices necessary to change an unsettled waste into established communities fitted to maintain life and to sustain and promote human society. To even make life tolerable, to give any value to the land and to make a place fit for habitation for succeeding generations, more than one generation of pioneers expended its life and strength. We have all seen them, these pioneers, horny-handed and bent of back, laboriously toiling to make a civilized community where otherwise there would be but a wilderness. All this they did in reliance upon the solemn assurances of the highest authorities in the nation that, when they had complied with the conditions which the nation prescribed, the land which they had thus transformed from a wilderness should belong to

them and to their posterity. Now, whatever may be thought about the abstract right of the government to own this land, or the attempt to transfer ownership to individuals, to say that those who have acquired it and given to it its value under circumstances such as these are to be denominated robbers, and to be summarily ejected without compensation, is at least a startling proposition and one which makes very little appeal to any sense of justice, rudimentary or refined, which it is possible to entertain. Upon this question I quote from a recent book by a writer who certainly cannot be denominated a "reactionary" or "hide-bound conservative"-Professor Jethro Brown, in the "Underlying Principles of Modern Legislation"-"Nor can I see how the state can be justified in ignoring those rights of property which individuals have acquired in the past with its express approval and positive sanction. The state may have erred in parting with the freehold of the land; some people may possess too much land and some people too little; and the time may have come to substitute public for private ownership of land. But, in seeking to effect reforms in these directions, the state must be loyal to the moral obligations it has incurred in the past."

The question of the amount which that which we call "labor" may justly take from the results of industry, or, in other words, the wages which labor may justly demand, is another of the matters concerning which it is contended that the present rules and institutions of society do not establish justice. I personally believe that this contention is in large measure well founded, but the determination of what portion justice demands, is by no means easy. If we take for our principle that justice demands that to "Every mal shall be given what he deserves or what is his due," how shall we determine what this amount is? It is of course possible, if one accepts the extreme views often put forward, that labor is entitled to all of it, to make short work of the problem; but if we do not accept this extreme view, and demand some basis of just distribution, the question at once arises, What shall that basis be? In general, it has long been and still is the prevailing view of the civilized world that a thing is worth what it will bring when exposed to competitive sale in the public markets. This has been and, in general, still is the accepted view with reference to the value of labor; but of recent years there have been many claims that it is unjust to labor to submit its just share to this form of competition, and a variety of efforts have been made, chiefly in the form of labor unions, which should by one means or another prevent competition, to establish a different basis for determining compensation. That this method has produced some improvements cannot be denied, but that it is a satisfactory method cannot be asserted. It often leads to violence and oppression, and results in much partiality and inconsistency. At the present moment, for example, it is insisted that persons who furnish labor may be freed from the necessary competition, while those who have put their labor into supplies which they contribute to the common end, and which are clearly nothing but labor in another form, shall be required to com