The Bridgeport evening farmer., 1912-04-02
DO OUR COURTS
STAND I'm The WAY
CONTINUED from Page g.


--ould bloom when he was in Can
Cer.' And the same may be just as
well said of judicial decisions. THESE
laws were finally repealed in the latter
part OF the eighteenth century, rev
years before Adam Smith published his
great economic work, The Wealth OF
Nations / never read chapter or
this Incompatible man without men
tally saving of him what our Emer-
son has so finely said of shakespeare
He was a wonder; he struck IL eV-
ery time" But when parliament re-
pealed these laws, the courts OF law
forthwith placed themselves obstln-
ately in the way of the reform. Inc
judges said that the common law had
from the beginning been the same as
the repealed statutes, and that the
repeal revived the common law. This
left the law unchanged. and they con-
tinued to try and convict Offenders
the same as under the statutes. You
have only to read the trial of poor
Rusty before Lord Kenyon in the last
year of the eighteenth century for
..regrating'' 80 quarters of oats, as IL
n given In Peake's Reports. Though
IN an evil hour all the statutes which
had been existing for a century were
at one blow repealed, / thank Coo
the provisions of the common law
were not destroyed" exclaimed Lord
Kenyon in charging the jury. Adam
Smith, who had recently died, was de-
nounced by the Judge. He had writ
ten that fear of the things made GRIM
inal offenses by these statutes reSulat-
ing trade was ridiculous; that they
were no more to be feared than witch
craft Lord Kenyon exclaimed, L wish
DIR. Adam Smith had lived to near the
evidence in this court to-day, and then
ne would have seen whether such an
offense exists and whether 1t is TO De
feared" Poor Adam smith. HOW
hot
court compared with the great
Judge Kenyon who spoke out so dog
maticaIly and Systematically. But
how is 1t now2 And let me ask, VIII
the decisions of our courts interfering
with and regulating the course Of BUS
mess, trade and commerce at the pres
ent time appear any less absurd In
the next generation than the like de-
cisions of Lord Kenyon and his assoc
ciates appeared to the generation
which followed them?
Courts Begin to Slide.
The courts themselves came to see
after while that the indirect and eX-
IRENE construction they were putting
on this liberty and property pro
vision of the constitution, instead OF
Keeping to the plain and ordinary
sense in which these words had always
been used and understood in England
and here in constitutional PROVISIONS
and statutes, was untenable ana mis-
chievous 1t stood in the way of leg
fslation necessary for the general well
fare. and that would not be tolerated
nv enlirhtened public sentiment in this
country any more than it is or ever
has been anywhere else in the world
1T was opposed to the long settled
maxim IN human as well as In natural
law, that the use Of private property
was subordinate to the general well
ha reSfricfQd
form thereto. although made less val
liable thereby. They therefore began
70 slide by or climb over their decisions
by declaring that Notwithstanding this
constitutional provision, /. E., the lnd1-
rect and far-fetched construction they
had put upon it, legislation tending
to the health. comfort, safety and
general welfare of society,"" would be
excepted and upheld.
The Elastic PoEce Power.
This they assumed 70 do under what
= they called the general police power OF
government-an elastic, undehnaple
and even misleading phrase, as they
freely admit in their decisions. But
who was to be the judge of SUCH leg
islation, i. e., as to whether IL tenoeo
to the general health, comfort, safety
and welfare? The legislature, repre-
sentinr the community? No; the
Judges took that unto themselves. They
Judge thereof over the head of the
legislature, and declare legislation up-
constitutional which exceeds their
opinion of what is economically or So
cially wise or beneficial. No such
power was ever given to the courts.
They have simply taken it away from
the legislative department of govern
ment They have set themselves up
as the protectors" of society against
the law-making power, safe-guarded
as it is by the consent of two houses
and the executive veto. They do not
seem to consider who is to protect US
against them in their judicial legisla-
ton. In the cases of the under
ground bakeries, the manufacture OF
tobacco in tenements, the working OF
women in factories at night, and SO
on. was not the legislature, represent
ing the community, as fit, at least, as
any Judge, or a bench of few Judges
mere mortalS like the rest of us, TO
Judge of the wisdom or advisablllty OF
the laws passed, from the standpoint
of the moral, economic and social WEI
of SOclQfV2