Page:The Green Bag (1889–1914), Volume 23.pdf/545

 Judges as Law Makers‘ Bv CHARLES J. BONAPARTE, OF rue Bun-mom; BAR

N a very forcible separate opinion,

dissenting in part from the views expressed by the majority of the Su preme Court, ﬁled on May 15 last in the Standard Oil Harlan says:

case,

Mr. Justice

After many years of public service at the national capital, and after a somewhat close observation of the conduct of public affairs, I am impelled to say that there is abroad, in our land, a most harmful tendency to bring about the amending of constitutions and legislative enactments by means alone of judicial construc tion.

About two years ago Mr. Gifford Pinchot, defending in a public address some features of his official course,

advanced a theory and quoted an opinion of the Supreme Court in its support,

criticism; but the critics who denounced the theory itself as startling and revo lutionary might have been expected to cordially endorse the views of Mr. Jus tice Harlan; curiously enough, these same writers, so far as I know, appear to think almost as ill of him as they did of Mr. Pinchot himself. I feel, therefore, emboldened to ask you to

consider with me very brieﬂy the char acter and scope of judicial action in the United States in the development of American law, and to see how far such

action and development may be ﬁtly called "law making" and how far such law making by judges, such "judicial legislation," if you will, is wholesome and tends to assure our national great

to the effect, in substance, that the gen

ness and happiness. First of all, what is "law"?

eral purpose, the evident policy, of a

"Note on

statute is the key to its meaning and that, so far as possible, it should be so

Stephen says:

construed as to accomplish that purpose, to promote, and not to defeat that policy. This contention on his part was promptly and vigorously denounced in certain publications which met my eye as novel

and visionary, dangerous to vested in terests, subversive of order and stabil ity, and, in brief, as a belated survival of a certain lawless and arbitrary system, of which, the critics had hoped, our coun

try was ﬁnally rid on March 4, 1909, when it gave place to what was after wards happily termed: “The Reign of Law." I am not now concerned with Mr. Pinchot's practical application of his theory of statutory construction;

that may or may not be open to just ‘An address delivered before the Illinois State Bar Association. Friday. June 23. 1911.

Utilitarianism,"

In his

Fitzjames

Bring any considerable number of human beings into relations with each other. Let them talk,

ﬁght, eat, drink, continue their

species, make observations, form a society, in short, however rough or however polished, and experience tion more proves or lessthat deﬁnite they will of what form aforconcep them constitutes happiness; that they will also form a conception of the rules of conduct by which hap piness may be increased or diminished; that they will enforce such rules upon each other by differ ent sanctions, and that such rules and sanctions will produce an inﬂuence upon individual conduct varying according to circumstances.

In a very wide sense, all such "rules

of conduct," thus "enforced" at any one time by any particular community upon

its individual members, may be de scribed as “law"; this would include rules of piety, good morals, courtesy and good taste; but custom and convenience

have

nowadays

restricted

the term