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The Green Bag

the opinion of reasonable men on the question what is a bona fide exercise of the police power and not an undue invasion of individual liberty. The courts and the bar must understand also that there are steady and irresisti ble changes in public opinion as to what constitutes property and what is the nature and what are the true limi tations of individual liberty, and that public opinion firmly established must in the end become law. It is only by knowing actual conditions and recog nizing established changes in the mean ing of property and liberty that the constitutional guarantees of the essence of property and liberty can be fully maintained, and the importance of main taining both these ideas is of the utmost importance for the development of human character. By public opinion I do not mean the vote of a majority, and I am fully con vinced that individual liberty is of the essence of our institutions. To maintain the principle that there is a limit in republican government to the power of the majority to make the laws is one of the most valuable functions the courts have to perform. There is nothing in human government more important than the preservation of the sense of individual personality. This sense, which was almost crushed out under the Ro man Empire, was given new life by Christianity. It was the whole power of the imperial idea that was withstood when Athanasius against the world maintained the doctrine of the divinity of Christ, which gave to humanity that sense of the dignity and value of the individual human soul which is the germ idea of universal democracy. This sense was preserved and intensified by struggle against the power of rulers and the oppres sion of the powerful. It was expressed in Magna Carta by the feudal lords

themselves as against the King, although little thought was there then of liberty of contract with respect to the hours of labor. Laborers by the statute of Ed ward III, from whose reign we have the phrase "due process of law," were com pelled under pain of imprisonment to work at the old wages for any man who might require them. The sense of indi viduality was expressed again when Lord Coke, in his struggle with King James endued Magna Carta with sovereignty for the protection of British subjects under the laws of Parliament. The same sense of individual rights was strongly imbedded in the minds of our early set tlers, and they expressed it in their quo tations from Magna Carta in their charters and fundamental agreements. It was expressed again in the constitu tions of the several states and in that of the United States, and finally it was de clared in the Fourteenth Amendment in a clause limiting the power of the states. In all these there was the expression of the deep-seated sense that individual man had rights and immunities which he would not surrender to any government. This sense of individuality is the pro duct of our religion and of the struggles of centuries for civil liberty, and it is as dear to men now as it ever was. It is of the utmost importance that it should be maintained though the struggle for civil liberty had ended in the supremacy of the people themselves and the cham pions of the people are demanding that their government be unrestrained. We are fortunate in having by reason of our written Constitution and a chain of circumstances peculiar to ourselves found in the courts a means of defense against the danger of which we are warned by John Stuart Mill, the ty ranny of "Society collectively over the separate individuals who compose it."4 •Mill on Liberty, p. 15.