Evening star., 1922-05-07
ny THOMAS r. MARSHALL.
Former Vice PRESIDENT Of the
United states.


URited Mates.
THAT which with our imper-
feet knowledge and defect
!, i've reasoning we call JUS
Ice 10 rarely defeated by ?
frontal attack. When overwhelm-
ed 1t usually is the result of as
saults from the rear. OF course,
all men are not satisfied with hu-
man decisions. Their sense of JUS
tice at times may be properly Of
fended-in fact, decisions may not
always be just. But no better sys-
tenn has been devised than to lay
down certain rules OF conduct and
to establish tribunals to determine
whether 2 breach Of any rule has
been Committed.
Slight difficulty Is ever exper-
fenced in obtaining the consent of
mankind to the Justice of those
DEGREES which are rendered upon
violationg Of what Is known as
the moral law. The principles of
that law are so rooted In human
nature that public sentiment JUS
tiAes and indorses most judgments
that are rendered in connection
with 1t.
4 have sometimes wondered
what would happen if legislative
bodies would repeal all statutory law
crimes and. substitute for them the
ten commandments. Would the
courts of the land construe the
evil conduct Of mankind as
breach of this or that command
ment and thus be enabled to pun
ish. all who are deserving of pun
jshment and Let the rest of the
world 60 free? That. however.
would hardly be possible with the
present-day mania for a majority
to Ak the limits of conduct.
:. 1t is not at all strange that in
England the customs Of a trade or
profession which have ruled the
become part of the law of the
land. That which has long been
acquiesced in as Just and fair and
which is not immoral in its char
aeter is manifestly right. Justice
may well decree that the customs
Of q people or a class shall be
their law.
But in America. where there Is no
such thing as common law crime, it
Is clearly necessary-and the neces-
.sity was recognized by the founders
OF our governmeRt-to require legis-
lators to define crime and affix pun
ishment. to designate lawful conduct
and to furnish means of redress for
unlawful actions; and as a necessary
corollary 1t follows that all real or
pretended breaches of the law should
be submitted to the adjudication of
the courts. and that there should be
the presentation Of all evidence
touching either the breach or denial
Of the breach Of the law. or II there
be no denial. touching the justifica-
tion of the conduct. The moment
We depart from this principle Of gov
ernment we have deprived one of our
coordinate branches Of the jurisdic-
ton that was intended to be exclu-
sive.
= + Il +
This theory Of government has
never been subjected to frontal at
tdSh. ItOpOSai ttdS lStST UeSH uidue
to wipe out the courts as the ulti-
mate judges in civil and criminal
procedure. But what has not been
proposed directly has been attempted
indirectly. Gradually the functions
Of the courts are being taken away
and conferred on purely administraA
tive Offices. And among those who
are giving their assent to this pro-
cedure are some who talk loudest
about the integrity Of the courts.
They deny that what they are doing
is depriving the courts of any Of
their inherent powers. and insist that
the modern trend is in the interests
Of justice. fair dealing and the gen.
eral welfare.
had been at the bar many years
before I ever heard of any way Of
settling disputed question of law
save through a decision of the court.
! had always supposed that the only
way to determine whether there had
been a breach of the Sherman anti
trust law was by civil or criminal
procedure. 1t had not occurred to
me that a man could be absolutely
certain in advance of a breach of
that law that no punishment would
be inflicted. ] knew. of course, that
violators we're going unwhipped of
justice, but l also knew there was