[215] Popular judgment, we may say, tends to be as grossly utilitarian in its practice as it is grossly intuitional in its theoretical standpoint. In assuming the possibility of an almost infallible, offhand, pat perception of right and wrong, it commits itself practically to judging in an offhand, analyzed way, on the basis of the evils which overtly result.
[216] See Pollock and Maitland, Vol. II., p. 561, who quote from Ihering: "Formulation is the sworn enemy of arbitrariness, the twin-sister of liberty"; and who add: "As time goes on there is always a larger room for discretion in the law of procedure: but discretionary powers can only be safely entrusted to judges whose impartiality is above suspicion and whose every act is exposed to public and professional criticism."
[217] A lawyer, asked if the poor were not at a disadvantage in the legal maintenance of their rights, replied: "Not any more than they are in the other relations of life."
[218] The devices of "equity" as distinct from strict legality are of course in part intended to secure this result.
[219] Robinson and Beard, Development of Modern Europe, Vol. II., p. 207.
[220] "Man the Reformer."
[221] The term "the King's Peace," as the equivalent in England for the peace and order of the commonwealth, goes back to a time when literally it meant a private possession. Pollock says that the desire to collect larger revenues was the chief motive for pushing the royal jurisdiction against lesser local authorities. Essay on the King's Peace in Oxford Essays.
[222] Says President Hadley: "The fundamental division of powers in the Constitution of the United States is between voters on the one hand, and property-owners on the other. The forces of democracy on one side, divided between the executive and the legislature, are set over against the forces of property on the other side, with the judiciary as arbiter between them.... The voter could elect what officers he pleased, so long as these officers did not try to do certain duties confided by the Constitution to the property-holders. Democracy was complete as far as it went, but constitutionally it was bound to stop short of social democracy."