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(2) In statute law

What has made the above interpretation seem harder is that railways and other common carriers have been held strictly responsible for injuries to passengers or for parcels intrusted to them for shipment. It has thus appeared that the courts have protected property more carefully than they have protected the lives of workmen.

Besides the common law, the other great division of law is the statutes, that is, laws passed by Congress or by legislatures. Here it may seem that the judge cannot, if he would, make law; apparently his only duty is to decide whether a case comes under the law. But before the judge can decide this, he has to decide what the statute means; laws are usually stated in very general terms and sometimes the terms are not clear. The judge must interpret the statute. He may give it an interpretation which really makes a new law. For example, the Fourteenth Amendment to the Constitution has this clause, “ Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Professor McLaughlin says: “ By this amendment, the nation intervened to protect the citizens of the State against unjust legislation or action of the State.” “Before this amendment was passed the state had complete control over its citizens and could be as tyrannical as it saw fit, provided that it did not interfere with the relations between a person and the National Government or violate the few expressed prohibitions in the National Constitution."

What was the purpose of this amendment? Evidently to protect the negro from unfair laws such as those of peonage, which would virtually continue slav

Instance, the Fourteenth Amendment

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ery under legal form. At the time probably no one thought of anything else, but afterward a new question arose: Some of the states passed laws regulating railroad charges. The railroads thought these laws unjust. A court of the United States was appealed to on the ground that the law was depriving the railroad of its property without “ due process of law.” Now the first question for the court to decide was: Is a corporation, such as a railroad company, a person within the meaning of the Fourteenth Amendment? Can the state treat a corporation (or, as it is sometimes called, a “corporate person ”) in a different way from

natural person "? The court held that the corporation was a person and therefore that all such laws enacted by states might be brought before the United States courts. If the courts regarded them as violating the Fourteenth Amendment it could declare them void. Now such a decision is much more important as settling a principle than most of the statutes passed by legislators; it is for all practical purposes making law and not merely declaring it. Or, to put the matter in other terms, it is declaring what the law shall mean, not what it meant when it was enacted.

But by far the most important reason for dissatis- The faction with the courts in recent years has been the courts decisions of the courts in which they have declared declare

certain laws unconstitutional and therefore void. This seems

laws to set the court directly against the will of the people. unconstiDuring the past few years state legislatures have passed tutional many laws designed to improve the conditions of workingmen and women or to restrain the powers of great corporations. Many of these laws have been declared unconstitutional; for example, an eight-hour law for women in Illinois, a ten-hour law for bakers in New

York (upheld by the state court but declared unconstitutional by the United States Supreme Court), a law forbidding tenement labor, a law to compel regular payment of wages, a law to compel payment of wages in cash instead of truck, a workman's compensation law passed by the New York legislature. The most striking recent decision was in the case of Coppage vs. Kansas, in which the law passed by the Kansas legislature forbidding employers to discharge workmen for being members of a labor union was declared unconstitutional by the United States Supreme Court.

This brings up at once a peculiar feature of our government. In England, if Parliament passes a law, no matter what, it holds. No judge or other authority can question it. In the United States, on the other hand, no one knows whether a statute passed by a legislature is really to stand until it has been tested by the courts. The court does not of course attempt to say whether it approves of the statute as wise or not; it only decides whether the statute is in accord with the Constitution. The constitution of the state or of the United States is the fundamental law. It has been adopted by the whole people. The statute, on the other hand, has been passed by a legislature.

legislature. It is very evident that if a statute contradicts the Constitution it ought not to be regarded as a law; if it is desired to change the Constitution, the Constitution ought to be amended. But the question is, does the statute really contradict the Constitution or only seem to? And who is to decide? It might be provided that the legislature or Congress should be the judge upon this point. But very early the courts in some of the states decided that they were not bound by laws which appeared to them to contradict the Constitution. The

famous decision which has served as a precedent ever
since was that of Marbury vs. Madison, in which Chief
Justice Marshall of the United States Supreme Court
declared: “ It is emphatically the province and duty of
the Judicial Department to say what the law is.
If two laws conflict with each other, the courts must
decide on the operation of each."

For many years this power of the courts did not Why excite great opposition because it did not conflict with this the will of the people in any great number of cases.

excites But in recent years a new situation has developed.

opposition The increased use of machinery, the dangers of city life to health, the evils of the sweating system, bad housing, and other consequences of our factory system have led to a general movement for protecting working people. On the other hand, the enormous growth of corporations and trusts has called out laws to restrict their power. Both kinds of laws have often been declared invalid. The will of the people has seemed to be directly blocked by the courts; there has been criticism and even anger and distrust.

What is the trouble? Are the new laws right or Three are they wrong? If they are good laws, then why can causes of we not have them? Is the fault that of the judges or

conflict is it because our constitutions, state and federal, are behind the times? There are elements of truth in all three views. Some of the laws which have been passed with very good intentions have not been properly drawn. They would undoubtedly do injury in the long run to some one even though they might be a benefit in other cases. In the second place, many of the judges who have given the decisions have been very narrow in their views of what the Constitution really meant. They have read into the Constitution a meaning of their own


and then claimed that the statute did not agree with it. Many of them, too, have known so little about the conditions of workingmen that they have assumed a wrong set of facts while claiming to decide the case purely on principles of law. But the third cause is perhaps the most important. Our constitutions were most of them framed many years ago when conditions were different. They were framed when there was no machinery, no factories, no railroads, no telegraphs, almost no corporations. Above all, as we have seen, the United States Constitution was framed with a view to prevent the government from “ doing things,” hence it is not surprising that now our constitutions do not allow us to do what we need to do.

What is to be done? Must we have a hopeless deadlock between the will of the people and the decisions of the courts? So far as laws have been poorly drawn the answer is easy, pass new ones which are better drawn. So far as the “ reactionary decisions" are the fault of narrow-minded judges, discussion and criticism are doing much to improve conditions. Some shortsighted defenders of the courts think that whatever a court decides ought to be accepted as right. They seem to believe that a judge can do no wrong or that, if he does do wrong, it is unwise to mention it for fear of lessening respect for the courts. When the famous Dred Scott decision was made, Abraham Lincoln showed very clearly that while he did not wish to oppose the decision so far as it decided the particular case of Dred Scott, he opposed it absolutely as a “precedent or authority," that is, as a rule “ to indicate to the public how other similar cases will be decided when they arise.” He criticised severely its logic as doing “ obvious violence to the plain, unmistakable language of the

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