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Moreover, the rule of _respondeat superior_ does not apply to the king. The conclusive legal presumption is that the king can do no legal wrong, and this leads to the further conclusive presumption that, in the eye of the law, he cannot authorize or direct a wrong. Every executive officer of the crown is, therefore, treated as if he were a principal, and as such is held personally responsible whenever any legal right of the subject has been invaded by him, although he may have acted under the direct order of the king, by his command and even in his presence. The civil irresponsibility of the king for tortious acts could not have been maintained with any show of justice if the officers and agents of the crown had not been held personally responsible for any illegal acts committed by them, and if the king had not been compelled to act through responsible agents. From the earliest times it has been deemed essential that the king should always act through an officer or servant, in order that there might be some one upon whom responsibility could be fastened. Lord Coke declares in his "Institutes" that "the king, being a body politique, cannot command but by matter of record." Custom and statute early required that all executive acts to which the sovereign was of necessity a party should be done in certain forms and authenticated by the signature or seal of some officer. The intervention of an officer was always necessary. In fact, some minister or officer of the crown can be held fully responsible for any illegal act. Anson states that "there is hardly anything which the sovereign can do without the intervention of written forms, and nothing for which a minister is not responsible."

Although the cases in England against officers of the crown were generally at law, there can be no reasonable doubt that the Court of Chancery, at the time when our Constitution was adopted, had full power, by means of the writ of injunction, to restrain an officer of the crown from violating the law where the remedy at law in a suit for damages or for possession of property, real or personal, would have been wholly inadequate and ineffective. The great state trial, known as the case of the Bankers,[37] in which Lord Somers was overruled by the House of Lords, left no doubt as to the principle and the jurisdiction of the courts in suits against crown officers. As Professor Goodnow has shown in his work on "Comparative Administrative Law," the English courts had long been accustomed in one way or another to control servants of the crown and executive officers of the government and to compel them to obey the law. All the great writs, which were at first prerogative writs, had been originally issued to control administrative or judicial officers. Such was the original function of mandamus, habeas corpus, quo warranto, prohibition. Injunctions, it is true, seem rarely to have been made use of in England as a means of preventing administrative action, and only a few cases can be found where they were so used, but, on settled principles, any administrative or executive officer threatening to do an illegal act which would injure the individual in his property rights was amenable to the jurisdiction of courts of equity in controversies requiring their intervention.

It is also true that no cases are to be found in England where officers have been held responsible in damages for enforcing an act of parliament or have been restrained from carrying its provisions into effect, but this, of course, is the result of the legislative sovereignty of parliament and of the fact that there are no constitutional limitations imposed upon it. Nevertheless, the same principles which make government officers in England subject to the ordinary law and the ordinary courts for any illegal act done or threatened would clearly authorize the issuance of injunctions restraining the enforcement of an unconstitutional statute if there were any constitutional limitations upon the legislative power of the English parliament. Thus, for example, a colonial statute, or a municipal or administrative rule, by-law, or ordinance in conflict with an act of parliament would be illegal and void, and, within settled principles, its enforcement could be restrained if other grounds of equity jurisdiction existed.

In the light of the long-settled and well-known rules of the common law, establishing the distinction between suits against the king under the petition of right and suits against officers of the crown for violating the legal rights of individuals, it is most significant and persuasive, if not convincing, that the framers of the eleventh amendment confined its language to suits directly against a state, and did not attempt to prohibit suits against officers of a state when acting as its representatives. They could hardly have intended that such a principle as that "the king can do no wrong" should have any place in our system of government to the prejudice of the constitutional rights of individuals. We have no king to whom it can be applied. They surely did not intend to afford less protection and less redress against the invasion of the rights of citizens by those in power than was afforded in monarchical England to the subjects of the king. They could not have been ignorant of the famous cases which had established the legal responsibility of all officers of the English government and their subordination to the jurisdiction of the ordinary courts of justice. They must have contemplated that state statutes might be passed in conflict with the Constitution of the United States, and that these statutes would necessarily have to be enforced or attempts made to enforce them by state officers. And they must have appreciated that if state officers, as agents of their respective states, were granted immunity from suit in a court of the United States because they were acting for and on behalf of their states, the Constitution could in many respects be rendered wholly ineffective and nugatory.

The failure to prohibit suits against officers of a state must, therefore, have been intentional. Indeed, it is highly improbable that any one at the time conceived that the language adopted was broad enough to prohibit suits against officers of a state. On the contrary, it is proper to assume that the framers of the eleventh amendment did not intend to permit an officer of a state, while acting under the color or excuse of an unconstitutional state statute, to invade or deny any right guaranteed by the Constitution of the United States, or that such a state officer should be immune from suit in a court of the United States merely because he was acting in a representative capacity as an agent of the state. The courts of the United States were specially charged with the preservation of the Constitution, so far, indeed, as it can be preserved by judicial authority. The "Federalist" shows how clearly it was contemplated that the federal courts were to have power to overrule state statutes in manifest contravention of the Constitution. If state officers were withdrawn from the jurisdiction of the national courts, their oath to support the Constitution of the United States might become a mere empty ceremony of no enforceable obligation or sanction. If officers of a state could not be sued in equity in a federal court in an action to enjoin the enforcement of unconstitutional state statutes, many of the provisions of the Constitution, of equal authority with the eleventh amendment, might not be effectually enforceable except by the grace of the states. The prohibitions against the states, which existed when the eleventh amendment was adopted, such as that no state shall emit bills of credit, or make anything but gold and silver coin a tender in payment of debts, or pass any bill of attainder, or any ex post facto law, or any law impairing the obligation of contracts, or lay imposts or duties on imports or exports, might to a great extent be nullified and rendered practically ineffective, if officers of a state could not be sued in a federal court. Indeed, the thirteenth, fourteenth and fifteenth amendments would be deprived of a great part of their intended effect if state officers enforcing unconstitutional state laws and clothed with the power of the state could not be sued and enjoined in a federal court.

As each of these subsequent amendments, however, provides that "Congress shall have power to enforce this article by appropriate legislation," it has been suggested that this provision may be construed as limiting the prohibition of the eleventh amendment and as empowering Congress to confer on the courts of the United States jurisdiction of suits against states or state officers as an appropriate means of enforcing the later amendments. Mr. Justice Shiras referred to this view in the case of Prout _vs._ Starr and said: "Much less can the eleventh amendment be successfully pleaded as an invincible barrier to judicial inquiry whether the salutary provisions of the fourteenth amendment have been disregarded by state enactments."[38]

The courts of the United States and of the several states have generally adopted and applied the English common law as to the amenability of executive and administrative officers to the jurisdiction of the ordinary courts and their personal responsibility for any illegal acts done by them or under their direction. There is no longer any question but that the eleventh amendment does not shield state officers from suits at law in a court of the United States to recover damages for any invasion of private rights under the color of an unconstitutional statute, or to recover possession of real property in the custody of such officers. The rule is axiomatic that no officer in this country is so high that he is above the Constitution of the United States, and that no officer of the law, state or national, may violate it under the color or excuse of a statute, national or state, in conflict with its provisions. The fact that an officer has acted on behalf of a state under the direction or authority of an unconstitutional statute, or under the orders of a superior, constitutes no defense to an action at law for restitution or for damages for any invasion of individual rights any more than the command of the king or the prime minister would constitute a defense in England. The alleged law is treated as a nullity and as absolutely void for all purposes, except perhaps as negativing the existence of malice or bad faith or criminal intent. But it confers no warrant or authority and affords no defense or protection.

The fundamental reasoning upon which these conclusions are based is that the state, the abstract political entity, can speak and act only by valid laws, that an unconstitutional statute cannot be its legal act, that it cannot, legally speaking, authorize any act in conflict with the Constitution, that no officer of a state, not even the governor, can have any legal duty or legal executive function to disregard or violate the Constitution, and that whatever wrong is attempted in its name is to be conclusively imputed to its officer, who cannot plead his representative capacity. The distinction between the government of a state and the state itself is elucidated by Mr. Justice Matthews in the leading case of Poindexter _vs._ Greenhow.[39]

Most difficult, however, are questions which arise in connection with suits in equity to restrain state officers from enforcing state statutes alleged to be unconstitutional. The plainest principles of justice would seem in many cases to require a preventive remedy, for it might be of vital importance that an officer be restrained from doing an unlawful act to the irreparable injury of the individual. Manifestly, it would be unfair and unjust to tell the latter that he must wait until his rights have been violated or his property confiscated or destroyed. This point was first presented to the Supreme Court in 1824 in the leading case of Osborn _vs._ Bank of the United States.[40] It was then declared, in one of Chief Justice Marshall's famous opinions, that, notwithstanding the eleventh amendment, a circuit court of the United States had jurisdiction in equity to restrain a state officer from executing or enforcing an unconstitutional state statute when to execute it would violate rights and privileges of a complainant guaranteed by the Constitution of the United States, and would work irreparable damage and injury to him, for which no plain, adequate and complete remedy could be had at law.

The general doctrine of the Osborn case has never been departed from, and it has sustained innumerable suits which have protected property rights from the enforcement of state statutes in conflict with the Constitution of the United States. It is no exaggeration to say that this doctrine, more than any other, has rendered the Constitution an effective shield against oppressive, tyrannical and confiscatory legislation, and compelled the states to obey the supreme law of the Constitution. The reasoning of Chief Justice Marshall is very logical and lucid, and it is most convincing. If, as was then conceded to be indisputable, the privilege or immunity of the state as principal was not communicated to the officer as agent, and if an action at law would lie against the officer in which full compensation ought to be made for a legal injury resulting from any unlawful act done in pursuance of an unconstitutional and void statute, there existed no reason why the preventive power of a court of equity should not equally apply to such an officer or why it should not restrain him from the commission of a wrong which it would punish him for committing. "If," continues the Chief Justice, "the party before the court would be responsible for the whole injury, why may he not be restrained from its commission, if no other party can be brought before the court?" It was pointed out that the very fact that the state could not be sued was a reason for permitting the suit to proceed in its absence against the officer or agent. We have here another example of how, in the evolution of legal principles, the same causes produce the same results. As in England the fact that the king could not be sued in the ordinary courts for a wrong led to the rule that his immunity or irresponsibility was not to be extended to his servants or agents and that the latter were to be held personally liable for whatever they did under the king's orders in violation of the legal rights of an individual, so with us the fact that a state could not be sued in a federal court led to the rule that its immunity or irresponsibility was not to be extended to its officers and that they were suable as responsible principals, even when acting under a state statute and as the agents or representatives of the state.

Chief Justice Marshall also said in the Osborn case that it might "be laid down as a rule which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently the eleventh amendment, which restrains the jurisdiction granted by the Constitution over suits against states, is, of necessity, limited to those suits in which a state is a party on the record. The amendment has its full effect, if the Constitution be construed as it would have been construed had the jurisdiction of the court never been extended to suits brought against a state, by the citizens of another state, or by aliens. The state not being a party on the record, and the court having jurisdiction over those who are parties on the record, the true question is not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court ought to make a decree against the defendants; whether they are to be considered as having a real interest, or as being only nominal parties." This reasoning was reaffirmed by the Supreme Court as late as 1872 in the case of Davis _vs._ Gray,[41] which was a suit against the governor of the state of Texas. But in later cases it has been repudiated, and the court has declared that "it must be regarded as a settled doctrine of this court, established by its recent decisions, 'that the question whether a suit is within the prohibition of the eleventh amendment is not always to be determined by reference to the nominal parties on the record.'"[42]

It may, nevertheless, be now interesting and valuable to re-examine the doctrine enunciated by Chief Justice Marshall and to inquire whether, after all, it does not embody the true and sound rule which should govern this question, particularly in view of the fact that the decisions which have departed from his reasoning have failed to indicate any definite criterion to guide us in determining when a suit against a state officer is and when it is not to be deemed a suit against the state within the true meaning of the eleventh amendment. The question must be considered as if the jurisdiction of the federal courts had never been extended to suits by an individual against a state. The controlling inquiry in a suit against a state officer ought logically to be whether the relief or remedy sought can properly be granted in the absence of the state as a party defendant; in other words, whether the state is or is not a necessary and indispensable party; and this inquiry should be determined by the result or burden of the judgment which may be entered. If, for example, the suit is to enjoin the enforcement of an unconstitutional statute regulating rates or imposing taxes, it must be presumed that the state has not authorized the wrong, that it can have no legal concern or interest in a void enactment of its legislature, and that it cannot be heard to assert any right to have its officers violate the Constitution of the United States for its benefit. If, on the other hand, the relief or remedy sought will affect the property rights or funds of the state, or compel it to pay its debts, or require the specific performance of a contract by the state, or the doing or omitting to do any act by the state itself, the court must needs hold that it is a necessary and indispensable party, and that, as it cannot be sued in a federal court for want of jurisdiction over it, the suit must be dismissed. This dismissal, however, would not be for want of jurisdiction or judicial power over the individual state officer as defendant, nor because the suit was against the state--for the state was not a party and its presence was sought to be dispensed with--but because the state was an indispensable party defendant and the suit could not proceed in its absence. The result of recurring to this view would be to simplify the consideration of many cases and reconcile much conflicting reasoning. We should then have a definite and logical criterion to guide us in cases against state officers. If the court found that the state was not a necessary and indispensable party, the issue in such cases would be narrowed to the inquiry whether the relief should be granted against the officer within established principles of equity, jurisprudence and procedure.

There remains the question as to enjoining criminal prosecutions. Should the jurisdiction of a court of equity be ousted simply because the state has authorized its officers to enforce unconstitutional regulations affecting property rights by a criminal instead of a civil action? The Supreme Court has held that, notwithstanding the general principle that a court of equity has no jurisdiction of a bill to stay criminal proceedings, it may nevertheless enjoin a state officer from instituting such proceedings where property rights are about to be invaded and destroyed through the instrumentality of an unconstitutional statute providing for its enforcement by criminal proceedings. The nature of an essentially civil question or controversy, such as one between shippers or passengers on the one side and a railroad company on the other as to the reasonableness of rates, cannot be changed by legislative fiat. The exercise of such a jurisdiction to restrain criminal proceedings has been found necessary in many recent cases where a defense on a criminal trial before a jury would afford no fair or adequate protection to those whose property rights were affected. The litigation, for example, under a bill in equity to restrain the enforcement of an unconstitutional criminal statute regulating rates presents a controversy of a civil nature with the officer and not with the state, and the only question is, whether a court of equity should intervene, or should leave those against whom criminal proceedings are threatened to their defense by demurrer to the indictment or trial on the merits. The latter will always be done when a defense at law will afford reasonably fair and adequate protection. But when a defense at law will not afford due protection and irreparable injury to property is threatened, there exists no reason why a court of equity should not intervene in such a case and grant protection and relief.

It may seem to many doubtful whether the two leading cases which are now attracting so much attention, namely, In re Ayers[43] and Fitts _vs._ McGhee,[44] necessarily presented any question under the eleventh amendment, and whether they should not have been disposed of solely upon the ground that a court of equity ought not to have enjoined the threatened suits or prosecutions. Probably neither of the suits in equity discussed in these two cases would have been maintainable under the general principles of equity jurisprudence even if the state had been suable in a court of the United States, for no irreparable injury was threatened and the opportunity of defense at law seemed to afford reasonable protection.

The question of the right to sue a state officer to restrain the enforcement of an unconstitutional statute regulating the rates and charges of railroad companies is now pending in some of its aspects before the Supreme Court in important cases involving statutes of Minnesota and North Carolina. These cases have been fully and ably argued and are under advisement, and they may lead to a reconsideration of some of the reasoning in the prior cases. A comprehensive decision may, therefore, shortly be delivered which will remove some of the reasons for the existing misunderstanding and conflict between the states and the federal courts.[45]

The time at our disposal renders it impossible to consider the many noteworthy and interesting cases which have arisen under the eleventh amendment and which frequently carry us into the realm of public law and statesmanship. The leading decisions are, of course, in the Supreme Court, but many instructive opinions will be found in the lower federal courts. The constant increase of governmental functions and of interference with individual liberty and action is certain to be a fruitful source of litigation in the future and will call for frequent consideration of the scope of the eleventh amendment.

In discussing the subject of suits to restrain the enforcement of state statutes alleged to be unconstitutional, we should not overlook or pass unnoticed the attempts made in recent enactments regulating rates and charges to coerce or intimidate railroad and other public service corporations into immediate obedience and abandonment of their constitutional right to appeal to the courts, by imposing upon them enormous and unreasonable fines and penalties, or by threatening them with the forfeiture of the protection of the government. Heavy fines or penalties are attached to violations of the law; and, as the transactions of these corporations are generally very numerous, disobedience of a statute, if only in good faith for the purpose of testing its validity, would in a few days involve the risk of bankruptcy. The avowed or ill-concealed purpose of these fines and penalties and of the resort to the criminal law is to prevent any interference by courts of equity. The idea, advanced in many quarters and under many disguises, seems to be that corporations shall be outlawed unless they consent to abandon their right to appeal to the courts for protection against unconstitutional statutes and void and oppressive enactments. This unfair spirit is widespread. For example, while the Federal Employers' Liability Act, recently declared unconstitutional by the Supreme Court of the United States, was under advisement by that court, President Roosevelt in his Jamestown speech criticized the railroad companies for having contested the validity of the statute and suggested that "the law should be such that it will be impossible for the railroads successfully to fight it without thereby forfeiting all right to the protection of the federal government under any circumstances."

The courts have repeatedly pointed out that the owners of property devoted to a public use are entitled to a fair and adequate judicial investigation if they contend that the rates or charges prescribed by a legislature are unreasonable and confiscatory. This is but recognizing that the owners of railroads and other property are entitled to a day in court, just as the humblest person is entitled to his day in court when his constitutional and vested property rights are invaded by the government. If the private property of the individual is to be taken for a public use, it would, of course, be obviously unfair and unjust to permit the legislature to say conclusively what should be paid to him, and deny him any adequate opportunity in the courts to review the legislative fiat. The same principle applies to public service corporations. They are entitled to appeal to the courts to pass upon the validity of any legislation which attempts to compel them to render services at a rate fixed by the legislature if they contend that such rate is unreasonably low and confiscatory; and, pending the judicial investigation, they ought not to incur the risk of accumulating and ruinous penalties. The New York Public Service Commissions Act of last year recognizes this in principle. But, instead of granting a fair hearing or providing for any judicial proceeding in which the reasonableness of the statutory rates may be promptly investigated, the constant effort seems to be to render resort to the courts so dangerous that property owners will abandon their right to a day in court rather than take the risks involved in allowing penalties to accrue and accumulate, which might subject their property to confiscation. Thus, in the recent New York gas statute, declared unconstitutional by the United States circuit court, no judicial investigation was afforded and the penalties imposed were at the rate of $1,000 for each overcharge or violation of the law. As the Consolidated Gas Company alone had upwards of 390,000 customers, an overcharge on only one month's bills, pending an attempt to test the law in good faith, would involve the fabulous total of $390,000,000 in penalties, or nearly five times the value of the whole property of the company. In fact, if the New York statute, at least in this respect, is not nullified by the Supreme Court on the pending appeal,[46] the Consolidated Gas Company may be absolutely ruined for having asserted its legal right to a fair judicial investigation before being compelled to accept what it insisted and what the court has so far held was a confiscatory and unreasonable rate; that is to say, for daring to insist upon a fair judicial hearing before being condemned. The Kansas statute regulating stockyards, which was declared unconstitutional by the Supreme Court,[47] imposed penalties which might have aggregated $15,000,000 in one day, or nearly twice the value of all the property of the stockyards company. The recent railroad statute in North Carolina imposes fines which would amount to $2,500,000 per day, and in a few days would bankrupt the railroad companies. The Minnesota railroad statute imposes penalties which in one month might aggregate several hundred million dollars.

Speaking of these penalties, United States Circuit Judge Lochren justly said: "There is no question but that such legislation is vicious, almost a disgrace to the civilization of the age, and a reproach upon the intelligence and sense of justice of any legislature which could enact provisions of that kind."

If any such policy of coercion and intimidation can possibly be enforced by the state or national governments, in any form or under any subterfuge whatever, we shall no longer be living under a constitutional government with effective guaranties of individual rights and liberties. If Congress or a state legislature can compel any class of persons to submit to an unconstitutional statute by imposing ruinous fines and penalties, or other provisions intended to operate _in terrorem_, or by threatening to deprive that class of the protection of the government, then the constitutional limitations imposed by the people can be readily circumvented and nullified, and our supposed rights and liberties will exist only in the grace or self-restraint of legislatures. One class is selected to-day, but another class will be selected to-morrow, depending only on the interest or prejudice or temptation or caprice of the temporary majority. Such an exercise of arbitrary and irresponsible power is in utter conflict with the whole theory of our institutions and in utter disregard and defiance of those fundamental and immutable principles of justice under which alone free governments can exist. As Chief Justice Marshall said in the great case of Marbury _vs._ Madison--and the court was then facing a hostile executive, a hostile Congress and a hostile public opinion--"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection.... The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."[48]

Some of the bills now pending before Congress propose to deprive the federal courts of the power to issue preliminary injunctions in these cases. This would be a policy fraught with immeasurable danger to property interests as well as to personal liberty. It would frequently amount to a complete denial of justice. The delay of litigation might readily be attended by ruin. But, undoubtedly, some reform is called for. There can be no question that preliminary injunctions against the enforcement of state statutes regulating public service corporations should never be granted without prior notice to the representatives of the people, and full opportunity for them to be heard, and then only upon the clearest showing of threatened irreparable injury pending the delay of a full hearing on the merits. Such cases ought not only to be given the earliest possible hearing, but the courts should insist that both sides proceed with the utmost expedition in the taking of testimony. A hearing in open court and not before a master would greatly facilitate this result. The people are entitled to a speedy determination of the questions involved in order that they may promptly have the benefit of the statute if it be constitutional, or that they may at once amend it if it be unconstitutional. There is no reason why in the majority of cases such a suit should not be ready for final hearing and actually be heard within sixty days, or why it should not be finally disposed of in the appellate courts within less than a year. It should have preference on all calendars. The Expedition Act of Congress, applicable to cases arising under the Anti-Trust and Interstate Commerce laws, would furnish a good model for cases involving the validity of state laws.

The conditions which now confront the people in many states, where statutes regulating public service corporations are often tied up for years by litigation, tend to create discontent, impatience and dissatisfaction with the courts and to engender a desire for revolutionary change from an intolerable situation. Laws regulating public utilities are often essential for protection against those who otherwise would have the power to make a prey of the necessities of the people, and it is disgraceful that the enforcement of such laws can be delayed by litigation for years after their enactment. As the delays in our criminal procedure are crying for remedy, so the delays in this class of litigation are crying for immediate and effective relief. It is of paramount importance that the people should be convinced that they can obtain in the courts, and especially in the federal courts, a prompt determination of all litigation affecting the validity of legislation regulating public service corporations which they or their representatives have deemed necessary for their protection against extortion or oppression. In most cases, however, it will be found that the representatives of the state are as much to blame for the delays as are their adversaries.

But, above all other considerations, stands the necessity for maintaining the absolute confidence of the people at large in the wisdom and impartiality of the federal judges, who are so often called upon to determine the validity of state statutes alleged to conflict with the Constitution of the United States and in so doing to administer justice as between the state and the individual--as between the majority and the minority. It should be a matter of profound concern to us as lawyers to make all laymen appreciate that the exercise of this jurisdiction by the federal courts is necessary for the preservation and perpetuation of the Constitution, and that it is right and just that every citizen should have the privilege of appealing to the national courts for the protection of rights and liberties guaranteed to him by the national Constitution. Equally important is it that the people should appreciate that in entertaining suits to restrain the enforcement of state laws alleged to be unconstitutional, the federal judges are only performing their duty according to their oath of office, which in the noble language prescribed in 1789 pledges them "to administer justice without respect to persons," to "do equal right to the poor and to the rich," and to "faithfully and impartially discharge and perform" their duty "agreeably to the Constitution and laws of the United States." An examination of the cases in which injunctions have been granted against the enforcement of state laws must satisfy any candid mind that in the great majority of cases the power has been impartially exercised, with tact and wise discretion, and that such injunctions have been granted only when property rights seemed to be threatened with irreparable injury. It would be too much to expect infallibility in all these cases. But errors are corrected on appeal.

Assaults upon our judiciary and unwarranted and unjust criticism of our judges undermine the people's trust in the courts and threaten the whole structure of our civilization. The United States judges are justly sensitive to public opinion and distressed by unjust and ignorant criticism. They know how important it is that they should retain public confidence. They realize, as their opinions constantly show, that "next to doing right, the great object in the administration of public justice should be to give public satisfaction." But they cannot sacrifice truth to popularity, the Constitution to present expediency. Those who assail the federal judges should bear in mind that the founders in their wisdom constituted the judicial power our bulwark against unadvised, hasty and tyrannical action on the part of those in power and our shield against "those sudden and strong passions to which we are exposed," and which, if unchecked and unrestrained, may lead to ruin. However unpopular and disagreeable the task may be of setting aside an act of Congress or of a state legislature, however painful it must be to any just man to become the subject of calumny, a federal judge has no choice, no discretion, no will of his own, but must hear and decide according to his conscience every case submitted to him within the jurisdiction of his court as conferred and imposed by the Constitution and laws of the United States. Let us always bear in mind the lofty words of the great Chief Justice in the case of Aaron Burr, in the decision which excited so much public prejudice and clamor one hundred years ago, when, speaking of the duty of a judge, he said: "If he has no choice in the case; if there is no alternative presented to him but a dereliction of duty, or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."[49]

FOOTNOTES:

[Footnote 23: Address before the New York State Bar Association at its thirty-first annual meeting held in New York, January 25, 1908.]

[Footnote 24: 2 Dallas' Reports, p. 419.]

[Footnote 25: 6 Wheaton's Reports, pp. 406-407.]

[Footnote 26: 134 United States Reports, pp. 1, 22.]

[Footnote 27: 108 United States Reports, p. 447.]

[Footnote 28: 200 United States Reports, pp. 283, 284.]

[Footnote 29: 1 Cranch's Reports, p. 163.]

[Footnote 30: 11 Wallace's Reports, p. 183.]

[Footnote 31: 16 Wallace's Reports, p. 156.]

[Footnote 32: 106 United States Reports, p. 205.]

[Footnote 33: 101 United States Reports, p. 343.]

[Footnote 34: The Law of the Constitution, 8th ed., p. 189.]

[Footnote 35: Reported by Hargrave, 19 Howell's State Trials, pp. 1030, 1073.]

[Footnote 36: 6 Best and Smith's Queen's Bench Reports (1865), p. 297.]

[Footnote 37: Reported in 14 Howell's State Trials, pp. 1-114.]

[Footnote 38: 188 United States Reports, p. 543.]

[Footnote 39: 114 United States Reports, p. 270.]

[Footnote 40: 9 Wheaton's Reports, p. 738.]

[Footnote 41: 16 Wallace's Reports, p. 220.]

[Footnote 42: In re Ayers, 123 United States Reports, p. 487.]

[Footnote 43: 123 United States Reports, p. 443.]

[Footnote 44: 172 United States Reports, p. 516.]

[Footnote 45: Ex parte Young (Attorney General of Minnesota), reported in 209 United States Reports, p. 123, and the case of Hunter (Sheriff of Buncombe County, N.C.) _vs._ Wood, 209 United States Reports, p. 205.]

[Footnote 46: Willcox _vs._ Consolidated Gas Co., 212 United States Reports, p. 19.]

[Footnote 47: Cotting _vs._ Kansas City Stock Yards Co., 183 United States Reports, p. 79.]

[Footnote 48: 1 Cranch's Reports, p. 163.]

[Footnote 49: 4 Cranch's Reports, Appendix, pp. 507-508.]

CRITICISM OF THE COURTS[50]

The attacks upon our courts which are constantly being published in the press throughout the country disclose a feeling of hostility towards the present system of administering justice that is probably the most portentous sign of our times. That the lawlessly inclined, who are fortunately still in the minority, should be hostile to those who are charged with the duty of enforcing and compelling obedience to the laws of the state or nation is not at all surprising and is perhaps almost inevitable in populous communities. But it is indeed surprising, and a legitimate cause for profound anxiety and misgiving, that thousands of honest, industrious, moral and law-abiding citizens should believe that the laws are not being impartially or justly administered, and that this erroneous belief should be inculcated, not only by the press and unprincipled demagogues and politicians but by reputable leaders of American labor and American public opinion, and even by educators. This belief has become so widespread and so fixed in the minds of vast numbers of our people of all classes, educated and uneducated, that only the most exhaustive consideration and discussion of the subject would be now adequate. Numerous letters received by the sub-committee of the New York State Bar Association, some of which are submitted with its report, show the intensity of the hostility towards the courts and the extent to which it is based upon ignorance, prejudice and malice. The fact that the writers of most of these letters are sincere need not be challenged, but, this being conceded, many of the statements show an utter failure to investigate the facts and an entire indifference to the truth, and some are obviously puerile, or inexcusably inaccurate and reckless. On the other hand, the spirit shown in letters from some of the labor leaders must inspire the hope of their loyal assistance in an impartial and thorough investigation. A great amount of good might be accomplished by cooperation with them. Such a letter, for example, as that recently received from Mr. Hugh Frayne, the general organizer of the American Federation of Labor, indicates that exchange of views might lead to desirable results. However irksome and laborious the task may be, it would be a great service to the country at large if some joint committee appointed by the New York State Bar Association and the other bar associations of the state would undertake to investigate all cases affecting labor or social legislation and publish a report showing the true facts and the principles of law involved in each case. The pity is that many of the critics of our courts are lamentably ignorant of the subjects about which they write or declaim, and--unconsciously and unintentionally in some instances--misrepresent and distort the facts.

It will be practicable at the present time to review only a few of the points suggested by the investigations of your sub-committee.

The subject of just compensation to employees for injuries received in the course of their work is one of the most important and far-reaching of those discussed by our correspondents, and its increasing difficulties and complexities call for much more study than we have been able to give it. The revolution wrought by machinery, the inevitable dangers attending its use, the crowding of men, women and children into factories and workshops require modifications in the rules of law governing the duties and responsibilities of employers. The rules of the common law, which are now condemned by so many and sought to be cast aside, were originally dictated by the soundest considerations of public policy, of practical affairs and government, and of justice as between man and man. The duties of the master toward the servant, as regulated by these rules, were humane and commensurate with the needs of the times that evolved them, and the rules themselves are still proper and just in the great majority of cases. Under them, the master is required to exercise the same degree of care for his servant that he should for his own safety, and he is bound to furnish a reasonably safe place in which his servant is to work, supply reasonably safe implements and machinery, select fellow-servants reasonably competent and prudent, and, where the nature of the business requires an overseer or superintendent, appoint one who is reasonably competent and prudent. The application of these rules regulating the conduct and duties of the master, in conjunction with the rules regulating the conduct and duties of the servant--such as the assumption of the ordinary risks of the employment, the fellow-servant doctrine, and the rule as to contributory negligence--unavoidably creates extremely difficult and complex questions. These rules are still proper and just in their application to such cases as involve the domestic relation between the farmer and his farm hands, the small contractor and his workmen, the householder and his house servants, the butcher, painter, carpenter, or blacksmith and his workmen. In all these cases it is, it seems to us, as true on principle to-day as it was half a century ago that the master is not bound to take more care of his servant than he may be reasonably expected to take of himself, and that a servant has better opportunities than his master of watching and guarding against the conduct and preventing the negligence of his fellow-servant. It is as true now as it ever was that, so long as liability is based on the theory or principle of negligence, a servant ought, generally speaking, to be held to assume the ordinary and obvious risks of the employment upon which he enters and for which he presumably stipulates for adequate and satisfactory compensation. Likewise, in the majority of cases, it is as true to-day as it ever was that the servant who has been guilty of contributory negligence should not be allowed to charge his master with responsibility for the injury. The reasoning of the judges establishing and maintaining these doctrines at the common law has never been refuted. Nevertheless, they are mere rules of law, subject to change, not by the judiciary, but by the legislature; and, in the opinion of the writer, there is no provision in the state or national constitution which would prevent their abrogation if this were deemed necessary or desirable by a legislative body.

But modern industrialism, the development of machinery, the employment of large numbers of men and women in crowded factories, and work in connection with dangerous instrumentalities of manufacture and transportation, etc., have changed conditions, so that what is still true of the farm, the household, the small artisan, the carpenter, the painter, the butcher, the grocer, etc., is not true of the busy hives of manufacture, of transportation by steam or electricity, or of other hazardous industries. The increase in accidents, the apparent certainty that many casualties are inevitable, the recklessness engendered by the modern struggle for existence, the increasing difficulty in many employments of measuring degrees of fault, the pressing necessities and improvidence of the poor: these and other considerations well warrant the interposition of the legislature as the lawmaking power of the state, in order to make changes in the law--changes which the courts should not attempt to make, for their duty or function is not to legislate but to declare what the law has been or now is. Instead, then, of abusing the courts, how much wiser and more decorous would it be for labor organizations, labor leaders, or social reformers to petition the legislature to amend the law, and to abandon the attempt to intimidate and coerce the judiciary into making the desired change. One of our correspondents speaks of "the venomous fellow-servant doctrine." Yet the responsibility for the continuance of that doctrine, if it has become undesirable in any employment or in all employments, rests wholly with the legislature and not with the courts. We should be surprised if any lawyer or student professing the slightest knowledge of American constitutional law would seriously assert that the legislature could not change that doctrine without amending or tinkering our constitutions.

It is, however, fit and proper to add that many lawyers and laymen are convinced that to abolish the existing rules indiscriminately in every case where the relation of master and servant may exist would be a mistake from the standpoint of public policy and practical justice, and that such a radical measure would do more harm than good. Certainly that is the judgment of competent observers of the operation of the British statute. A change in the law which would be wise if confined to large factories and hazardous employments, to labor in connection with dangerous machinery, to service on railroads, in large electrical works, etc., etc., might be extremely unwise, unjust and oppressive if applied, for example, to the small farmer, the artisan, the mechanic, or the householder. A rule concededly wise and just in the one case might be the extreme of folly and oppression in the other. An accident on a farm caused by the negligence or drunkenness of a farm hand might, under some of the proposed reforms or innovations, bankrupt the most prudent farmer for causes quite beyond his control; and a similar disaster might easily overtake the small artisan, mechanic, or householder, and sweep away the savings of years. It is, of course, no answer to say that the farmer, the artisan, the householder employing men or women can insure. Why should this form of taxation be levied upon slender earnings, which are frequently insufficient to make both ends meet? Why should the farmer or artisan of limited means be compelled to pay tribute to private insurance companies so often engaged in combinations to extort the highest possible premiums?

Let every master be responsible for his own negligence, but let the line be drawn short of making every master--every employer of another--the insurer of the safety of his servant to the extent of rendering the master liable for injuries resulting from no fault of his own but from the carelessness and negligence of the servant himself or of a fellow-servant.

An interesting example of the operation of a statute in connection with established rules of law will be found in the case of Knisley _vs._ Pratt.[51] The legislature had prescribed certain devices for the protection of women and children, including a provision that cogs on machinery should be properly guarded. In enacting this provision, as the courts were bound to assume by the settled rules of construction, the legislature was fully aware of the existing law in the state of New York in regard to the assumption of obvious and ordinary risks of employment by men and women of full age and capacity. The plaintiff in the Knisley case was a woman of full age and capacity, and she was well aware of the danger she was running in approaching too near machinery in operation. Had the statute been competently drawn, it would have provided--_assuming, of course, the draftsman and the legislature so intended_--that the rule of assumption of risk should not apply to cases within its purview; in other words, it would have provided that the master should be liable for any injury to a servant arising from the master's neglect to furnish the protection required by the statute whether or not the servant knew of such neglect or contributed in any way to his own injury. No provision of state or federal constitution prevented the legislature from enacting that the employer should be absolutely liable for the consequence of his own deliberate neglect to obey a statutory provision intended to protect human life and particularly the lives of women and children. There is not the remotest intimation by the court in the Knisley case that the legislature could not so alter the law. After the decision in that case had been announced, a change in the law could have been readily made within a week, for the legislature was then in session--February, 1896. Yet seventeen years have passed without such an enactment, and in the meantime the Court of Appeals has been assailed before the whole country for its lack of sympathy with the poor and helpless and with social progress as evidenced among other things by this decision!

It is true that the doctrine of the Knisley case has been recently overruled by the Court of Appeals in the case of Fitzwater _vs._ Warren.[52] But many lawyers believe that the court might better have left this change to the legislature, which could have made it seventeen years ago if it had so desired, and not have furnished additional ground for the criticism that our courts are resorting to judicial legislation. Despite the Fitzwater case, it would still be wise for the legislature, _if it deems that the rule of law should be as now announced_, to enact a properly drawn statute declaring that whenever a statutory provision requires a master to supply guards or other protection for his servants in hazardous employments or in connection with the use of dangerous machinery, his neglect to do so shall render him liable irrespective of the doctrines of assumption of risk, fellow-servant's fault, or contributory negligence.

The manner in which nominations have been made in recent years for judicial office and particularly for the Court of Appeals has also invited very serious criticism on the part of our correspondents.

As is well known, the bar of the state of New York, with almost entire unanimity, has been endeavoring for many years to separate nominations for judicial office from other nominations, and thereby to divorce the bench from politics. It was the bar that has urged and forced the renomination of judges for the Court of Appeals on a non-partisan basis. It was the bar that urged and forced the renomination and election of Judge Gray and Chief Judge Cullen and other members of our highest court. It is simply slanderous to charge that any of the present judges of that great court were nominated at the request or dictation of what our correspondents call "the interests." The contrary is the truth; and the whole history and conduct of the court refute an accusation which is as contemptible as it is unfounded.