SPEECH BY THE HONORABLE WENDELL PHILLIPS

STAFFORD.

In the spirit of this inspiring occasion, and using the serious and noble tradition of Puritanism for a background, I wish to talk with you for a little while this evening about the people and the courts. The question I would have you ask yourselves is this: Under a government supposed to be of and by and for the people, what is the proper place and function of the court?

Spencer, I believe, declared, "Law is the government of the living by the dead." In a large measure it is true. Humanity is on the march, and is never quite caught up with by the law. The institutions under which we live were molded by hands that have lain in the grave for at least a hundred years. If we were to begin all over again and make institutions for ourselves to-day, who can doubt that they would differ somewhat from those that have come down to us from the past? The ideal might seem to be, laws and a form of government that should exactly express the thought and feeling of the present, varying from year to year or day to day. Yet our minds recoil from such a proposition, looking for something like stability in a matter that concerns our deepest interests in this world. There are those two things: Thought, aspiration, sentiment- these must have free play; the race must not be hindered in its march; laws and governments must be ever more and more responsive to the public will; and yet there must be something at the center of things that does not vary-something so respected by public sentiment itself as not to be constantly thought of as a subject for reform or change. Unless we are to be like the Bandarlog in Kipling's Jungle Book we must have some ideas we hold beyond the reach of daily disputationideas that have become beliefs, beliefs that have become convictions. "Knowledge comes, but wisdom lingers.' How can we expect the tree to grow strong and firmly set if we are forever digging about it and laying bare the roots?

You may remember Dr. Holmes' half-humorous, halfserious complaint, "When we Unitarians wake up in the morning we have to rub our heads and ask ourselves, 'Well, let me see, what do I believe this morning?'" Certainly not an ideal state in religion. Is there not something in government itself that ought to be held sacred and indubitable? Are there not some principles that should be placed beyond the strife of tongues, and never submitted to debate, save on momentous occasion, and then in the calmest and most reverent spirit? We have believed there were. We have conceived that there were rights-of liberty, of property, of life—rights that no man and no number of men could ever take away-rights that belonged to all. Men have striven to express them in words, and we have received the phrases in which they have been coined as more precious than silver or gold.

What is it we mean when we affirm that we believe in the people? De we mean that every decision of the larger number must be right? Right and wrong do not vary as men may vote, and history has shown that the majority is often wrong. Do we mean, give the people time enough and the majority will be found on the right side? But how much time? And in the meanwhile is there no way of preventing a hasty and erroneous decision? This Republic has been built upon the assumption that there exists in the mass of men a certain basis of integrity and sound judgment which under fair conditions will support the rights and interests of the whole. And yet nothing can be plainer than that the selfish interests of the many may be opposed to the selfish interests of the few. The poor may far outnumber the more fortunate. A common passion, a common prejudice, even a common interest, may fuse the majority into a single mass that can easily bear down all the rest under the rule of universal suffrage. In a democracy the whole problem is simply this: How can the rights of the minority be made secure? The majority can take care of itself.

I like to think of a people as a magnified man. A

nation is formed-is it not?-that the whole body of the citizens may live more happily the proper life of man. Browning wrote:

A people is but the attempt of many

To rise to the completer life of one.

If we think of the aggregate as a person, we shall see at once that unlimited freedom of action will not do. Everyone who is wise imposes on himself certain restraints for his own good. He forms his plans in the brain. He executes them with his hands or his talents. But if he is true to himself, he obeys a quiet monitor whose voice he recognizes, but whose kingly seat he has never found—an oracle within that sits in judgment upon all his enterprises, all his proposals. It can only warn and counsel; it cannot compel him to obey. Yet he realizes, and more and more clearly as time goes on, that here is a safer guide than the wish or impulse of the moment. When sudden temptations arise he learns to pause. He waits till the storm has passed, and then in some quiet hour he summons them before the bar of the unseen judge and by his decision he abides. Perhaps the oracle may say: "This purpose of yours is contrary to your own best nature. It violates the law of your being. It is unconstitutional.' In that case, if you are wise, you reject it, no matter how attractive it may be. Now in that magnified man we call the State this faculty of judgment upon the individual act must have a place, an organ. It must have its quiet chamber, guarded from the assaults of passion, from the alarms of fear, from the blandishments of sense. It, too, will have no initiative. It can answer only when it is consulted. And when it is consulted it can only reason and decide. If the will do not consent, if the hands will not obey, it is powerless. That, in the very nature of things, is the place and function of the court. It neither wields the sword nor carries the purse. To say that it usurps power is as illogical as to say that the reason or the conscience usurps it. The judicial department is absolutely without power to enforce one of its decrees.

"John Marshall has rendered his judgment," said President Jackson, "now let him execute it." Of course he could not execute it. As if a man should say to his conscience: "You have decided against my wish: now let me see you help yourself." If the court's judgment is carried out it is because it is respected by the executive, or because the executive knows that the sentiment of the people will insist upon obedience. In the last analysis the judgment has just that force, and no more, which the sentiment of the people gives it. The practical question at the present time seems to be whether this serene faculty of judgment shall be exercised as in times past by a body of men set apart by the people for that purpose, selected with special reference to their supposed fitness for the exalted task, sworn in the most solemn manner to perform it, and guarded as far as possible from improper influences, or whether it shall be exercised by the majority for the time being in the electorate at large. Will such a majority be more or less trustworthy, more or less capable, than the chosen few? Will it feel more upon it? Will it

or less keenly the responsibility that rests be more or less likely to make mistakes? Will it be more or less likely to be swayed by passion, warped by prejudice, misled by temporary lures? On the whole, which will be more calm, more wise, more just? What gives the voice of conscience its august and compelling power? What but this-that every one of us knows it has no motive to deceive? We distrust our greed, our lust, our ambition; but a pure conscience, we know, is above the reach of these. In a judiciary selected with such care as human nature can command, and guarded in such jealous ways as human wisdom can invent, what motives will there be to influence it against the common good? It will have no ambitions to gratify. It will have nothing itself to win or lose. It will be drawn from the people. It will have the same interest the people have that justice should be done. Its own property and liberty, the liberty and estates of its own children, are put in peril if the scales of justice be held with a deceitful or

unsteady hand. The father does not poison the spring from which his own children are to drink. Believe me, judges will not wittingly corrupt the fountain of justice from which they and their children after them must take the cup of liberty and life.

Thus far, you see, I have been speaking of the courts as if they were made up of judges alone. But in the great majority of cases the question to be decided is not one of law, but one of fact. And here the people have a more direct and plain part to perform, the province of the jury. How important that part is can hardly be realized except by those who have spent their lives in court. The criminal law is almost completely in the hands of the people. Except for the most trivial offenses a criminal case can be tried only by jury and if the jury refuses to convict, the whole government is powerless. Jury trial in criminal cases no one proposes to abolish. Jury trial in civil cases has been the object of frequent attack both by lawyers and laymen. Just criticisms may be brought against it. Yet there is one consideration, and to my mind it is the most important of all, which is generally overlooked. It is in the jury trial that the people, as the people, have their principal share in that branch of government which we call the judicial. As long as they retain it they will feel that they have a weighty, often a decisive, part to play in the administration of civil justice. Take it away, or cut it down, and they will find it harder than ever to look upon the courts as their own-as being in any true sense organs of self-government. For myself, after thirty years' experience, I look upon jury trial, even in civil cases, as a wise and safe method of deciding questions of fact-as wise and safe on the whole as any method that can be proposed. But if I thought otherwise, if I believed that some tribunal could be created out of the ranks of lawyers that would secure in the long run more accurate results, I should be in no hurry to advocate the change, for I believe we should lose far more than we should gain in the breaking of this great bond between the people