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the late Samuel Spencer, and Ernest Crosby, Booker | administration of laws framed to curb the undue

T. Washington, and J. Pierpont Morgan, the chief executives of our State and of our nation, Presidents Wilson, Butler, Hadley and Elliott and their brother presidents in the West and South, Mr. Hearst who perhaps more accurately than any one else because he is ever listening, voices the demand of an increasingly large constituency by no means to be despised throughout the Union.

Nor would this complete the list, for in varied phrase, at meetings held weekly and monthly, in which these questions are debated, the organized labor of the land is demanding justice, even if sometimes it seems to demand more than justice and sometimes less.

Even the pulpit is echoing the demand and is studying the minor prophets, finding inspiration in their democracy and in their cry for justice. Clergymen of all denominations are becoming somewhat less insistent that love and mercy are the greatest things in the world, and are finding time to measure by actual observation existing conditions in the light of justice, and to preach about its remedial efficiency. But the church and the clergy are wholly failing to lead. With few exceptions they are lagging followers in the popular campaign.

For reasons which we have now no time to consider, I do not believe that either the one or the other of the political parties can make the dominant issue, of the day the distinctive issue in a political campaign; but I do believe that the Bench and Bar, irrespective of party, are the natural leaders in any fight for justice. This would seem almost axiomatic. If they are to be on the firing line they are there in quite distinct capacities. The duty and the opportunity of the Bench is quite different from the duty and the opportunity of the Bar. The latter has in every strenuous period of the nation's history taken its part on the rostrum, in the legislative and administrative departments of the government and aided in the decision of great national issues and in the development of the country's growth after their decision.

The danger the bar is in is that the attempt of those whose professional duty it is to act for the large corporations, both good and bad, and in their defense, shall become discredited in the public eye, and so sometimes discredit a movement with which they are in sympathy and of which they might other wise be competent and able leaders. We have had recent illustration of this in New York city.

It would seem almost necessary, whether logical or illogical, that those who are professionally employed to defend great corporations which have transgressed the law, should be willing to forego ambition to be leaders in a controversy involving the enforcement of justice, including the enactment and

power of their clients. That is a large subject and the solution of the questions which it raises are so varied with varying circumstances, as to necessarily involve a discussion far too long for the limits of this paper. In passing, however, we may remark that some of the greatest and most judicial of prosecuting attorneys have been those who have been elected to the office after a long practice at the criminal bar; and further, and more to the point, that one of the things which the people are demanding and are going to demand more in the future than in the past, is, that even the bad corporations shall be protected against persecution, for prosecution may become that in times like these. Laws which hamper trade, which make legitimate business transac tions unlawful and even criminal, which impose excessive and undue penalties, especially when imposed upon acts which are not immoral, will not be toler ated even by the very people whose clamor has occasioned their enactment.

One of the issues involved in what we have termed the dominant issue of the times is the extension of the powers of the Federal government. Both the Bench and the Bar must be prominent in that struggle. The sides which are to be taken are not as yet drawn. They will cross the old party lines, perhaps at right angles. We are told by some that the wicked mammoth corporations will prefer a strong Federal gov ernment, so that by controlling the concentrated forces in Washington they may control all the gov erning powers. Again, we are told that, on the contrary, it is easier for concentrated force to apply its power successively or contemporaneously in forty-six different jurisdictions, securing there the privileges and the exemption from penalties which they desire, and that a mammoth corporation is omnipotent as against the divided power of forty-six Legislatures.

The third set of thinkers or prophets tell us that the plain people will demand that home rule, which gives them supremacy in a majority of the States, at least, and which enables them to wield within their respective jurisdictions a power due to closer oversight, which they will never relinquish to the general government.

And the fourth set, sympathizing otherwise with the last mentioned, hold that the plain people can best exercise the really omnipotent force which is behind their votes by electing representatives who shall wield the concentrated force of the nation in a unified government.

There would seem to be much logic in the proposi tion that the greater the concentration of great industries under a single control, the greater need that the power that curbs be at least equal to the power to be curbed, and quite as important as that, if not more so, is the proposition that the power to

protect, if it is efficient, must be national if the thing to be protected-corporation or whatever else it may be-is national.

But whatever may be the solution, can any one question the proposition that there is upon the bar of the land, and upon the bench (but in a lesser degree because of limitations now to be referred to), a responsibility and an opportunity?

Enticing as is the field of discussion, I must drop, at least for the moment, the opportunity of the bar, to consider the opportunity of the bench.

The supremacy of the bench in the regard and reverence of the people of the United States arises largely from its consistently remaining within the limits which the Constitution has placed around it, and from its record of a sound and firm administration of justice which is blindfold to all except legal issues involved in the case before it. But in all times of public stress and strain, such as the clash or controversy between the people and the corporations, now impending, there is danger, perhaps a present tendency, that at least one of the boundary lines of the court's jurisdiction, which is not very strongly marked at best, shall become obliterated. Is the court always blindfold to the result of its decision upon the public or parties not before it? There may be cases falling within exceptions to the rule, in which the public interests should be considered to the extent of shaping the decrees in equity cases, so as not to injure the public, but always subject to the rule that the rights of the parties before the court are fully protected, by each receiving justice without compromise or curtailment.

pointed to pass upon the public interests have determined.

Another legitimate consideration of public interests by the courts of this State is the somewhat anomalous power exercised by the Appellate Division in passing upon the need and propriety of railroads, when property owners have refused to give their consent. This is an appointment by the Legislature of the court to do legislative duty precisely as it sometimes delegates its powers of legislation to a municipal corporation. It may be an unwise delegation, but it is legal. The chief danger (and in my opinion a very grave one) in so delegating this power to a court is that if the people find that such powers are to be exercised, whether by legislative enactment or by the courts of their own motion, they will logically demand short terms of office for those who are thus to represent them, and to pass upon what is, or what is not, in the public interest. The people would be acting reasonably if they demanded that the question of whether a subway should be built on one avenue or another in New York city should not be passed upon by a bench of learned judges who for a quarter of a century or more had been engaged, exclusively, in passing upon legal questions in an Appellate Court, and who knew nothing of railroading, or engineering, or of city needs and conditions, except as they had acquired information while upon the bench. Under our present system two or more of the five judges sitting might be non-residents of the city. I am not asserting that judges of many years' experience on the bench are not better qualified to act, and more trust

A single illustration of one of the exceptions will worthy, than railroad men or engineers or men of aid in proving the rule.

The abutting property owners, applying for relief against the elevated railroads in New York city, are entitled to an injunction absolute, but instead of that are given an injunction in the alternative, not as a favor to the defendant, but because of the public interests involved, and because the railroad has the right, although not exercising it, to condemn the easements taken. The court says to the plaintiff, "You are entitled to an injunction absolute, but the defendant should have condemned your property. and in fact is obligated to the public to do so in order to maintain its road. Its failure, we will correct, by practically forcing them to condemn, giving you an injunction if they do not."

This is a very legitimate exercise of the power of the court, in an exceptional case, to consider public interests, especially since here the court does not have to pass upon what the public interest is; for the legislative and municipal authority granted to the railroad the right to erect the structure complained of, and so have indicated what the regularly constituted authorities who were elected and ap

the average ability of our legislators; but I do assert, without fear of contradiction, that those who are even now asking for shorter terms for our judges, have an arrow added to their quiver (which I trust is scanty) whenever they find such questions as these falling within the actual or claimed jurisdiction of the court.

But danger does not lurk in the legitimate excep tions to the rule that public interests are not to be considered as issues in causes before the courts; but in the increasing number of cases wherein the courts are creating new exceptions to that salutary rule.

Our Appellate Courts are especially inclined, and, I think I can show, naturally tempted, to assume a responsibility which does not exist. Most of the cases which illustrate this tendency are cases where the mammoth size of one of the parties as compared to the other makes it appear that any injury to the former will affect so large a section of the commun

*How city and county judges differ upon such questions, see Kitching v. Brown, 180 N. Y. 414,

433.

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ity and so many interests that damage to it is dam- | ordinarily supposed to be one of the opposites of age to the "public interests." There is some truth every," to wit, "one" but the court construes the in this view of the matter, but that does not justify words "every refusal" and after admitting that it, it only makes the error the more dangerous. wherever this expression has been heretofore used But general assertions of an alleged tendency will in a statute it has been held to mean that cumulacarry little weight with any of my brothers who are tive penalties can be recovered, says by Justice inclined to disagree with me. It is impossible in BARTLETT : the brief limits to give more than two or three illustrations of a much larger number of cases.

Our highest State court has in a few instances been acknowledgedly influenced by considering of their own motion how the judgment in a particular case would affect public interests, or how one of the parties to the action would be affected if precedent was established by a decision in strict accord with the fundamental law.

For example, in 1888, in Uhlman v. New York Life Insurance Co., 109 N. Y. 421, the court decided that a Tontine policyholder could not call his trustee to account, and gave as a reason for their decision that such a precedent might subject a mammoth insurance company, such as was before it, having a large number of policyholders, to many vexatious suits, in each of which the company and its officers would have to justify their execution of their trust. Whether or not the decision is justified on other grounds, it is significant that this ground was stated as an excuse for the decision. It is also significant that the insurance companies were not satisfied in resting upon that decision, but found it necessary or advisable a few years after to embody the doctrine of the decision in a statute, so that it might not be reversed. (See Greeff v. Equitable Assurance Co., 160 N. Y. 19.)

Possibly this may be urged as an instance showing that the court accurately voiced the public opinion in deciding that the law ought to be changed, for the law was changed by the legislators who were elected by the people. But I do not think the conclusion is altogether justified by the facts. The whole situation affords food for thought, and at least suggests this query, would not the recent disclosure of the insurance evils have been very much hastened, by nearly twenty years, if the decision in the Uhlman case had been that the cestui que trust could call his trustee to account, even if the trustee had accepted many like trusts?

Again, more recently, the Court of Appeals had occasion to pass upon the meaning of the following

words in a statute:

"For every refusal to comply with the requirements of this section the corporation so refusing shall forfeit $50 to the aggrieved party." (Sec. 104 of the Railroad Law.)

It would seem, without any authoritative announcement of the fact, that the word "every " would mean "every," and would not mean what is

"Notwithstanding this fact, a majority of my brethren are of opinion that, while the rule for the recovery of cumulative penalties, as already adverted to, is firmly established by the earlier decisions of this court, yet the changed conditions in the modern life of great cities render its modification imperative." (Griffin v. Interurban St. Ry. Co., 179 N. Y. 438, 449.)

Assuming that the court was not attempting to legislate, it must be that it was not called to their attention that the statute was re-enacted in modern times and after the court has construed the word to mean what the dictionaries all say it means, and what the legislators had a right to believe it would continue to mean.

"The changed conditions in the modern life of great cities," if a proper subject of judicial instead of legislative consideration, should not so change our language, our arithmetic, and even our morals, as to make "every" mean one," even in supposed or real public interests.

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A protest is now and then heard from the bench against this attempt to bend the legal conclusion that the facts in a case demand to the public interests. Justice KELLOGG, in our own State, recently said:

"It may be said that the conclusions arrived at conflict with public policy. I do not understand that public policy is necessarily law. It is a topic which generally should affect statesmen, not judges. The public policy of to-day is not the public policy of tomorrow. If followed in judicial decisions, either that which may become bad policy, through a change of conditions, becomes in law a fixed rule, or the law is judicially changed to meet the changing policy, either result being bad. Here is only a legal question. The plaintiff's corporation has a cause of action which it does not enforce. The plaintiff is a shareholder. As such, she has a right to compel its enforcement. The fact that the corporation's business is insurance, not manufacturing, is no valid distinction differentiating the plaintiff's case from that of an ordinary stockholder.

"For all the reasons given, therefore, the defendant's demurrer is overruled." (Young v. Equitable Assurance Co., 49 Misc. 360.)

Another danger is, that great masses of the plain people will be led, unjustly, it may be, to suspect the court of being willing to even change the law, to protect the great corporations when they are acting

in defiance of the law. The particular case just dis- creating the fear in the minds of some that the court cussed was one in which the court found that the will lean backward. company controlling all the surface lines of New York had, in defiance of law, habitually refused transfers. It was more than unfortunate that the court felt it necessary to render the opinion it did in a case which was so supremely a case of the people against a tyrannical and monopolistic corporation. It had found itself constrained to refuse a mandamus brought by a citizen to compel the giving of such transfers, on the ground that the Board of State Railroad Commissioners are the only parties now vested with the right to ask for such a writ, and on the further ground that citizens had another remedy at law, because " a vigorous application of the statutory right to recover penalties has generally been found to be an adequate remedy for the grievance of which the relator complains." (People ex rel. Lehmaier v. Interborough Ry. Co., 177 N. Y. 296, 300.)

The vigor of the application of this remedy was of course lessened by the subsequent decision just referred to.

The Supreme Court of the United States has in a number of cases, of which perhaps the Slaughterhouse cases, the Bell Telephone Patent case, and the Income Tax cases, are leading illustrations, allowed the bandage over its eyes to be slightly lowered, quite sufficiently, at least, for the judicial optics to catch a side glance (although it was, also, an upward and not a lowering or base one) of great public interests; and while not guided by such views of things as they thus saw, they were, apparently, strongly influenced thereby. In those cases, however, and in a number of others like them, we generally find the court divided, with dissenting opinions so strong, and able, as to largely mitigate the effect of the decision which called them forth. There are, however, a few cases, even in the United States Supreme Court, which tend in the direction of shaping law to what the court believes to be in the public interest where the court has been unanimous, as, for instance, in Pine v. The City of New York, in 185 U. S. 93.

But these cases are exceptional. They are being offset by others, wherein judgments have been rendered and opinions pronounced, not only in civil, but in criminal, cases, which have revealed to the people that when the private citizen, or the administrative officer of the government, appeals to the 'court, there is even-handed justice, and the great and abiding principles of law, which are the protection of the people, rule and govern. The suspicion that either an administrative officer, a Legislature or any representative of the plutocracy, can guide or influence the judges of our Federal or State courts, is being rapidly dissipated, even to the extent of

The people still look upon the courts as being apart and by themselves; revolving in a sphere in which questions of public interest, public policy, legislative expediency, and municipal management, do not enter. They still believe it to be a body of men properly appointed for life or for a long term of years, whose sole guiding star is the law, who can be trusted to follow precedents, rendering law certain, and who are the refuge for rich and poor alike, for the man of small vested interests and the corporation of large interests (in whose prosperity the country prospers, and in whose downfall the country suffers), and that confidence, trust, admiration and reverence is to be perpetuated only in case the courts continue to be judicial, and judicial only, and resist the temptation, especially in these times, of leaving their orbit and pursuing a tangent for however short a distance.

If the court is to pursue any other than the judicial policy and is to have an ear and an eye open to consider the effect of each decision upon public interests, I think I have shown that four evils develop, and as to which is the worst I confess myself unable to form any opinion, because they are each of them so bad.

First, the people will logically demand very short terms of office of all judges who are to pass upon such questions.

Second, the law will be rendered altogether uncertain, for no man can tell what view of public interests a particular court at a particular time will take, and each of the three tribunals before whom we have to appear in the progress of a case to the highest court in this State may have a different idea. If they all act sincerely, the only certainty left will be that they will act uncertainly.

Third, either we shall have to introduce evidence in many cases of what is in the public interest, and change our law of evidence, or else we shall have to trust to the court's taking judicial notice of all that is within the horizon of public interests, and that is asking a great deal of the court.

Fourth, in every case where a large, or shall I say, national corporation, is concerned, like the Standard On Company, or United States Steel Company, or a transcontinental railroad, or a great traction trust, on the one side, and a citizen on the other, the public interests will oftentimes seem to be merged in, and almost coincident with, the interests of so mammoth a corporation, affecting so many lives and fortunes. This means, almost necessarily, that the court is, or is looked upon to be (and that is almost as bad), a Corporation Court, a phrase that, thank God, has not yet entered into the national vocabulary. We hear much of the corporation lawyer, but as yet we

do not hear of the Corporation Court; and you and I know that there is none such in our land to-day.

More is needed, from them, however, than a mere negative policy of refusing to attempt to legislate or to pose as the defender or the promoter of public interests. It is necessary that a campaign of education be incessantly kept up in order that the people may know that this is the policy of the courts and that they appreciate that their functions are prescribed within definite limits.

The courts can more often. announce their attitude on the limitation of their powers as in times past, in their opinions.

The plain people are gathered together in towns, villages and cities now as never before, ready to lis ten from the platforms of people's forums to what leaders of thought have to say upon public questions. Judges have, in times past, and, recently, addressed such audiences on topics of the day. The danger is, of course, that those judges who are most conservative and most sound are those least likely to speak, while those who are more or less radical are those who perhaps are oftenest heard. But the question emerges, at once, whether, if any are to be heard it would not be better that more should be heard, especially if they speak upon those matters which will increase the knowledge and appreciation by the mass of the people of what the court is, and should be. The ideal may be that no judge should, speak on matters of public controversy, but if some speak it may be that others ought to.

In passing, may I not suggest a pre-eminent duty which devolves upon the bar, to educate the people by reiterating the propositions contained in Hamilton's essay in the Federalist upon the Supreme Court of the United States, and his defense of life or very long terms of office for all judges?

The people have lost much of the respect that they once had for the legislative branch of the Government-State and national-including the United States Senate. The executive branch of the government in the forty-six sovereignties and at the capital is sometimes viewed with indifference, sometimes even with contempt, spasmodically with admiration, but never with reverence. What reverence the American people have left to dispose of they have in times past bestowed upon the judicial branch of the gov ernment, and if reverence is to be preserved for any particular governmental agency it must be the judicial; and it is to the Bench and the Bar that this sacred Ark of the Constitution has been entrusted. If justice is to rule in our land it must rule in our courts, and it can only rule there when the courts have not only the confidence but the reverence of the people; that reverence in the past has caused them to refrain from anything more than mild criticism when judgments were rendered which

seemed to them to be unfair. It would almost seem, as one contemplates the present situation, that the preservation of our liberties depended upon the preservation of our respect for our judges. Surely, no mistake has been made by the honored chief execu tive of this nation more harrowing than his attacks upon the judiciary. If it fell within the duty of the executive to criticize the judiciary, any criticism upon it at this time would be certainly ill-advised, even if it were just; but when the criticism is unjust and when the duty to criticize does not exist, and when the effect of criticism tends to decrease the respect for the most respectable branch of the gov ernment in times when respect is sadly lacking, we have a spectacle which I do not think I have wrongly termed "harrowing." The only defense that can be made is that which is urged in defense of those against whom certain indictments have been recently found, to wit, that the intent was laudable.

If all that has been said is true, or if half of it is true, a question legitimately presents itself. If the people of the land are united, if the mammoth corporation, the man of small vested interests, and the man who lives from hand to mouth, all cry for the same thing-justice, and the courts are ready to dispense it, how is there any problem that requires solution? A two-fold answer springs to the lips of each of us as soon as the question is asked. First, the mammoth corporation and the man of small vested interests, and the man who lives from hand to mouth, each has a different reply to make to the question "What is justice?" and it is the courts who must reply to that question and to some extent guide the executive and the legislative bodies in answering it when the answer is to come from them. It is there where the real issue lies and where the stress and the strain is to come and even now is. And the second answer is, that while the issue is plain, and while the people are united in calling for the same thing, the man is lacking. Who is he who shall lead? I do not believe any one knows his name. But whence will he come? I do not believe that he will come with a record of political activity in either of the two great political parties, and for many rea sons. Nor do I believe that we will again startle the world by finding a Moses to lead us out of Egypt in the person of a self-educated frontiersman, as we did when Abraham Lincoln was created out of the times which he set right. If I have stated the issue cor rectly, then it seems as if it necessarily follows that the coming leader is a man who will step from the bench to lead the nation in solving the problem of dealing out to every interest, great and small, evenhanded justice. He must be at once a man of the broadest, keenest vision, of a hearing that is as acute to the cry of the oppressed as it is to the sincere and logical argument urged by the man of large af

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