making any attack on the man personally. There are men to whom I am personally devoted, and for whom, in their private capacity I have the very highest regard, with whose views on public questions I wholly disagree. In every great crisis of our great National development there have been men of the highest character, men who in most respects reached the highest level of good citizenship, who nevertheless took what I believe to be the wrong side. A public servant may render bad service to the public as the general at the head of an army, no matter how estimable and honorable a man he may be privately; and what is true of the military or naval officer is no less true of the civic official; and it is no less true of the judge than of the legislator or the executive.

Under our American system of government the judge occupies a position such as he occupies nowhere else in the world, a position which really makes him, so far as the negative side of legislation is concerned, the most important legislative official in the country; for of course it is merely to repeat a truism to say what was so well said by an English bishop two centuries ago, and what has been quoted again and again since, by Mr. Justice Holmes among others: "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver to all intents and purposes, and not the person who first wrote or spoke it." In some most vital respects the judges have become far more truly the lawgivers than either the executive or the legislative bodies, State or National, can be. In no other country is this permitted as with us. In Germany, France, or England, when the people have spoken and have definitely declared their mind through the legislature, the courts carry out the popular wish and apply it as formulated in law. Here the courts decide whether or not that wish shall be granted, whether or not the people are to have their will. Surely none will contend that the judge is not the servant of the people; and it behooves us to look carefully into any tendency to turn him into master instead of servant, so that the created rules the creator.

I most emphatically believe that we have been wise in giving great power to our judges, including this power of judicial interpretation of statutes to see whether they conform with the fundamental law of the land. But I also most firmly believe that, like any other power,

this power can be abused, and that it is a power with which the people have merely temporarily parted, and not one which they have permanently alienated. Used cautiously and moderately and only in the clearest cases, as it has been used by our greatest judges from the days of Marshall to the present time, as it is defended by writers such as Mr. Thayer, it is fraught with the utmost good to the body politic. Used recklessly, wantonly, and foolishly, where the case is so doubtful that the judges themselves may be divided nearly equally on the two sides (in the Bakeshop decision, first and last, twelve judges held the law constitutional, and only ten, including, however, unfortunately, five of the nine Supreme Court judges, held it unconstitutional), as it has again and again been used in recent years, it results in very great evil. It has so resulted again and again in this State of New York. In the end it may result in even greater evil, for it may in the end cause such a revulsion in the minds of the people at large as to result in totally taking away this power from the judges-action which I should deplore, although I firmly believe that we should make far easier than at present the power to appeal to the people as a whole when a few individuals (even although they be judges) in doubtful cases arrogate to themselves the right to upset the deliberate judgment of the people on social and economic governmental policies.

Now let me once again ask you not to get confused in your mind as to what I mean. I am not speaking of the judges' performance of the ordinary judicial function. as performed by judges in all lands, the function of the type which people all over the world have in mind when they speak of the uprightness of the judge, of the independence of the judiciary. I am speaking of the peculiar function of the American judge, the function of no other judge in the world, the function of declaring whether or not the people have the right to make laws for themselves on matters which they deem of vital concern. I am not speaking of the judge in his attitude of judge between one individual and another, or one individual and the State; I am speaking of the judge when, by virtue. of his position, he declares that the people as a whole have, or have not, the right to carry out a given policy, a power which may give one man or three men or five men the right to nullify the wishes of the enormous majority of their ninety million fellow-citizens, a

power which has been exercised repeatedly, sometimes wisely, sometimes very unwisely. Bear in mind that I am not at this time even referring to decisions dealing with the question of the respective spheres of action of Nation and State; I have in mind decisions which declare that the people themselves have no power to act, through either the National or the State governments.

One of the wisest judges now on the bench, in a recent letter, puts the case exactly (although he was writing primarily of judicial interference with laws affecting corporations rather than labor): "The whole subject should be raised out of the smallness of a lawsuit into the realm of statesmanship. We have made a capital mistake in transferring our faith in the ability of courts to decide wisely controversies between man and man in private litigation to the great public problems of modern commerce and industry. Why are the courts able to decide the first kind of controversies? First, they have the inherited wisdom of the profession for many generations stored up in the literature of the law. Second, the judge has actual knowledge of the living conditions out of which ordinary lawsuits arise. Neither of these things is true as to the other class of controversies. They are new. The literature of the law affords no light for their decision. Again, the ordinary judge knows nothing of the actual conditions out of which they rise. [This is especially true of labor matters.] In fact,

the training of the law disqualifies the judge to deal with such questions. Its procedure and its rules of evidence were all devised for controversies of another kind. The ordinary judge comes to a modern trust or railroad case [or any case affecting the conditions of labor or the reforms demanded in modern social and industrial life] with his mind obsessed by those rules. He tries to cramp this great public question to fit rules devised for a suit on a promissory note or for trespass to real property. [An exact description of the mental attitude of the New York courts in the cases below cited.] Why is a judge able to decide ordinary lawsuits? Because he knows something of the actual life out of which they rise. He is [other things being equal] successful as he knows that life. The testimony of witnesses may inform a judge as to the facts of a particular case, but cannot instruct him as to the general subject.

pensation or excessive hours of labor] is a problem in administrative statesmanship. The training of the law not only fails to aid in its decision, but, in fact, disqualifies a judge for such work. He is constantly attempting to apply to it rules which were devised for controversies between man and man. American courts have become specially unfit for such work, because for a generation they have exalted rules of procedure above substantial justice." The Judge then proceeds to show why the lawyer who is chosen for public position simply because he is a good lawyer or because of the foolish belief that his training beyond any other training fits him for public life, or who in public life persists in regarding public questions not from the standpoint of the public servant but from that of the mere lawyer, does substantial damage, because, although “good for analysis and criticism, his judgment lacks the weight and sense needed for great public affairs." Washington was a farmer, Franklin an editor, printer, and writer, Lincoln a lawyer; and they were all three great public servants because in public matters each of them acted purely and simply as a public man, and not as a farmer, lawyer, editor, author, or printer. The Judge then continues to show why the Inter-State Commerce Commission can do much better work by itself than when hampered as regards its decisions on questions of fact by a court of review, such as a commerce court, the creation of which simply does damage in so far as it interferes with the policy of dealing with all questions of inter-State commerce as matters for administrative action, which cannot be beneficially solved by a mere succession of lawsuits.

During the last twenty-five years the courts here in New York, helped, I am sorry to say, once or twice by the Supreme Court of the Nation, have thrown what at times have proved well-nigh or altogether insurmountable obstacles in the path of needed social reforms. I have already alluded to the decision of the New York Court which forbade the people of New York through their Legislature to interfere with certain kinds of tenement-house factories. Almost without exception every intelligent social worker whom I have ever met, every man really interested in the betterment of social and industrial conditions among our working people, in giving better homes to working people in great cities, and in giving better conditions of labor to them when they

are at labor-almost without exception every one qualified to judge on these matters has agreed that this decision was a blow to decent citizenship, a blow to the effort to achieve genuine reform, genuine betterment of social conditions, of so severe a nature that its mischievous effects can hardly be overestimated. I have no doubt that the men making the decision were upright men of high character; but they did as much damage as the worst legislative body, actuated by the worst motives, could possibly have done. Again, in 1907, the Court, in the David L. Williams case, declared that it was unconstitutional to fix the closing hour for the work of adult women. This decision rendered the 9 P.M. closing-hour law, on the statute-book since 1888, non-enforceable. A law restricting the working day without a closing hour is a sham and an imposture. The Court nominally acted in the interest of the "freedom" of the women workers, but in practice they simply forced upon them the "freedom" to work unlimited hours, and all night long whenever their employers wished. to have them do so. In similar fashion our highest New York Court decided that the Workman's Compensation Law unconstitutional. They decided that we were taking away the employer's property "without due process of law" when we strove to interfere in safe and moderate fashion to prevent the whole dreadful burden of disaster to life and limb from falling upon the shoulders least able to bear it. another instance the Supreme Court of the State (in the case of Knisely vs. Pratt, recited at length in Mr. George W. Alger's admirable book "Moral Overstrain ") upset the verdict obtained by a young girl who had lost her arm because her employer had not provided the safety guards to protect her from injury which were required by a statute of the State of New York, the Court holding that she had the "right" to assume the risk of injury at the machine notwithstanding the danger to which she was exposed. member, incidentally, that these decisions so jealously protecting the rights of property, and so callous in their disregard of the rights of human beings to life and limb, were rendered in a State in which each year there are twice as many persons killed in industrial establishments as were killed in the Spanish War, and in which, in addition to the killed, some 40,000 employees are annually crippled, maimed, or wounded. Again, in

the Bakeshop Case, the Supreme Court of the United States, by a majority of five to four, took the ground that the people of the State of New York did not have the right, when they found certain conditions to be unhygienic, and so declared through the Legislature, to prevent men from working for too many hours under these unhygienic conditions.

If these decisions of the courts which I have quoted to you are samples of the decisions which will be made and sustained in similar matters in the future, then it is utterly idle for us to strive for reforms such as we champion, unless we are prepared to insist that, if we can persuade the majority of the people to share our views of social and economic reform, we are entitled to have these views become the law of the land. In the decisions of which I have spoken these unquestionably upright and well-meaning judges prove their devotion, not to the Constitution, but to a system of social and economic philosophy which, in my judgment, is not merely outworn, but to the last degree mischievous, because of its utter unsuitability to existing social and economic conditions. I hold that if a majority of the people, after due deliberation, decide to champion such social and economic reforms as those we champion, they have the right to see them enacted into law and become a part of our settled governmental policy; and I shall never abandon the effort to see this view triumph.

I am not primarily concerned with the argument as to whether or not the philosophical system championed by the judges in question is mischievous-although I firmly believe it so to be. I am not primarily concerned as to whether we, you and I, are right, or whether the extreme apostles of the laissez faire system who disbelieve in any attempt by any form of law to make social conditions more even and better are right. But I insist, as a matter of fundamental and primary concern, that we, the people, have the constitutional as well as the moral right to try these experiments if we soberly determine to try them. I believe that we have the right to limit the hours of labor for women and children, to fix the closing hours for women, to pass mandatory laws in connection with safety appliances (laws which shall apply whether or not the beneficiaries contract to waive their advantage under them); that we have a right to say that men shall not labor under conditions

that we regard as ruinous to their health, or for so many hours a day or so many days a week as to make it impossible that their lives shall not be stunted and warped by excessive toil and unhealthy surroundings; that we have a right to say, if we choose, that manufacturing industries shall not be carried on in tenement-houses, and that the conditions in tenement-houses shall be such as to make it possible for men and women to live in them in decency, and for children to be brought up in them under circumstances that will permit them to become decent citizens in the future. I claim that we have the right to try to work for all these causes by securing proper laws, and the proper administration of those laws. Whether or not we are wise in wishing to obtain and use this power I am quite willing to debate (although personally I am absolutely convinced that we are wise); but I do not regard as debatable, I regard as self-evident, the proposition that this is a matter which we have the right to determine for ourselves, and not one which outsiders, however well-meaning, should be permitted to determine for us. I am well aware that if we get this power it is possible that we shall abuse it. There never yet was a power worth anything to use which it was not possible also to abuse. I hold that, if we get it, it will become a matter of the highest obligation on us not to abuse it; but I also hold that no half-dozen, or dozen, individuals, however well-meaning, have the right to forbid us to use it for fear that we may abuse it. So do not forget that I am asking for two things. I am asking that you adopt this philosophy of State action in certain cases as the right philosophy to adopt; and, furthermore, and what is much more important, I am asking you to declare unequivocally that it is for the people themselves to say whether or not this policy shall be adopted, and that no body of officials, no matter how well-meaning and personally honest, no matter whether they be legislators, judges, or executives, have any right to say that we, the people, shall not make laws to protect women and children, and also men in hazardous industry, to protect men, women, and children from working under unhealthy conditions or for manifestly excessive hours, or to prevent the conditions of life in tenement-houses from becoming intolerable. I say that we have the right to decide this for ourselves, and that we are unfit to be citizens of a country which stood by Lincoln in his criticisms of the

Supreme Court over the Dred Scott decision, unless we are prepared to follow in his footsteps in this matter.

I have said that I am willing to debate the wisdom of the course of action I advocate; but by this I mean merely that it is one which the people (not the judges) have the right to reject or adopt as they see fit. I do not mean that there is any doubt in my mind as to the wisdom of the course. I hold, not only that the courts in these matters have usurped, or at least exercised in wholly wrong fashion, a power properly and clearly abiding in the people, but that they have thus strained to the utmost (and, indeed, in my judgment, violated) the Constitution in order to sustain a do-nothing philosophy which has everywhere completely broken down when applied to the actual conditions of modern life. These good judges, these upright and well-meaning men, who champion an outworn philosophy, do not realize that the changed conditions mean changed needs, and that the tremendous social problem of to-day cannot be solved by methods adequate to meet the infinitely simpler problems offered by industrial and social life a century ago. When this Constitution was founded, there were laws passed in the various States, and even in the Nation, for the government of the militia, in which it was set out that among their arms should be spontoons, and which defined how the soldiers should take care of the flints of the flint-lock muskets; and some of these laws are, or until a few years ago were, still on the statute-books. Well, a flint-lock and a spontoon would be no more inefficient against a modern foe in arms than we, the people, are inefficient in striving against social wrong and oppression if limited by law as the decisions I have quoted seek to limit us. When I was helping raise the regiment in which I served in the Spanish War, two or three elderly War Department officials, men of high character, acting in the kindliest spirit, did their best to force me to take black-powder weapons substantially the same as those they had known in the Civil War. It would have been no more foolish for me to have submitted to the wishes of these amiable and high-minded veterans than it would be foolish for us, the citizens of this country, if we now sat resignedly back with our arms folded and let ourselves be fettered in our efforts to fight the tremendous social and industrial evils of to-day as the judges of whom I have spoken have

tries in Europe, by Australia, by New Zealand, by the Transvaal, by the principal provinces of the Dominion of Canada, and, in a partial form at least, by one or more of the South American Republics. The Court says: Indeed, so universal is the custom, that to assert to the contrary is to turn the face against the enlightened opinion of mankind." The high

66

est Court of the State of New York has, by its decision, practically forced that great State of ten million people thus to turn its face "against the enlightened opinion of mankind," and the Supreme Court of the State of Washington has rightfully declined to follow this example, and, by so doing, has criticised a reactionary attitude in the severest and most effective fashion.

When I was President, the man to whom I owed most for guidance as to the proper attitude that courts should take in matters such as these was Mr. William H. Moody, afterwards Justice of the Supreme Court, who during his lamentably short term of service gave promise of being one of the greatest justices who ever sat on that Court. It was he who called my attention to the first essay in Professor Thayer's book of "Legal Essays" on "The Origin and Scope of the American Doctrine of Constitutional Law" Nowhere else is there a clearer statement both of the advantage of conferring upon the courts the power that they possess under our system and also of the further fact that un less that power is wisely exercised it must inevitably be restrained. It is, I believe, an advantage to have fixed in the court the power to state that a legislative act is unconstitu tional; but only provided that the power is exercised with the greatest wisdom and selfrestraint. If the courts continue to use it with the recklessness that has too often been shown in the past, it is almost inevitable that efforts will be made to amend or abolish it; I know, for instance, that, as far as I am person ally concerned, I earnestly hope to see in the next New York State Constitutional Convention provisions incorporated in the Constitution which will enable the people to decide for themselves, by popular ballot after due deliberation, finally and without appeal, what the law of the land shall be in cases such as those I have mentioned, where the courts of the State have refused to allow the people to establish justice and equity.

In advocating this change-not only for New York State, but for any or all other States where it may be found necessary-I