Conclusion
The thesis I have endeavored to support in these lectures, so far as I have a thesis, is this: (1) that, after all, human justice consists in securing to each individual as much liberty of action in the exercise of his physical and mental powers and as much liberty to enjoy the fruits of such action as is consistent with like liberty for other individuals, and with such restrictions only as are necessary for the welfare of society as a whole without discrimination for or against any individual; and (2) that that justice is more firmly secured by a government with a division of powers, with a written constitution excluding from governmental interference such personal rights as long experience has shown to be necessary both for the happiness and efficiency of the individual subject and for the welfare and efficiency of all; and (3) finally with an independent judiciary to defend those rights when assailed, as they often have been, and will be, by impatient and changeable majorities.
It may be admitted that the courts sometimes err in their interpretation of the constitution and the laws, since judges, however carefully selected, are but men; but there must be somewhere in the body politic of a free state some body of men with the power of authoritative interpretation of the fundamental law as well as other laws. Does earlier history or later experience point to any better equipped, more stable, more safe tribunal? Should not the people endeavor to raise rather than lower the position of the courts; to conserve rather than impair that freedom, impartiality, and independence of the judges declared by the people of Massachusetts in their Declaration of Rights, after years of galling experience of the contrary, to be "essential to the preservation of every individual, his life, liberty, property and character"? Are not they the reactionaries who, despite the lessons of history, would revert to the days of a dependent, recallable, and hence timid judiciary?
But justice is not fully and certainly secured by the maintenance of particular political institutions, however excellent. Political institutions are not self-acting. They are only instrumentalities for the action of society. They are not only to be established and maintained; they are to be administered, and the best institutions may be maladministered. Even under such a system of government as I have endeavored to show to be the best yet devised to secure justice, injustice is still often suffered by the individual or by society. Oppressive statutes within the legislative power are too readily enacted. Abuses in administration are too long permitted to exist. The only remedy for these is a more enlightened public opinion, a wider diffusion of the spirit of impartiality, a greater realization of the right and need of every person to life, liberty, and the results of his industry and economy.
Nor are the judgments of our courts always righteous. Some of the instances of unrighteous judgments result from failure to ascertain and apply the truth as to the facts of the case; some from errors in judgment; some from lack of firmness in judges in enforcing the known rights of the individual on the one hand, or those of society on the other; and perhaps a very few from incompetency or corruption. These causes can be removed to a large extent, by a more rigid insistence on skill, ability, industry, learning, and courage on the part of those assuming to administer justice as attorneys and counselors. The same insistence in the selection of judges will lessen the injustice resulting from their errors in judgment and from their lack of firmness.
There is yet another cause of injustice, the delay and expense in obtaining even righteous judgments. It is an axiom, that justice delayed is justice denied. This delay and expense are often charged against the courts and judges, as if they had full control over judicial procedure. It is not the judges but the legislature that shapes the judicial system and prescribes the judicial procedure, so far as they are not fixed by the constitution.
It is not the courts but the legislatures that provide for so many appeals and allow so many stays and consequent delays. Judges and lawyers the country over are urging a more simplified, a more speedy, and less expensive procedure. They are also urging the establishment of more courts with more judges to cope with the constantly increasing litigation, in order that the wrongs against the individual and the wrongs against society may be redressed with a minimum of delay and cost. It is the legislatures that hesitate and often it is the legislatures that tie the hands of the judges. In some states it is sought to deprive the judges of their proper influence in jury trials. In some states it is even sought to prevent them from saying more than yes or no to proposed instructions to a jury. In many states nearly the whole matter of procedure, its various steps, are fixed by statute and become difficult of improvement. If courts could have more power and the legislatures would interfere less in matters of procedure, I am sure the cause of justice would be better served.
In conclusion, perfect justice may not be attainable by us imperfect men. As said by Addison, "omniscience and omnipotence are requisite for its full attainment." Yet it is our duty and especially the duty of those of the legal profession to attain to such approximation as may be possible. No more noble work can engage our powers; no greater service can be rendered mankind. I do not except the endowment of schools, colleges, libraries, and the like, nor the endowment of hospitals and other charitable institutions. Great as are the virtues of charity, benevolence, philanthropy, piety and the like, justice is a yet greater virtue. To quote Addison again, "There is no virtue so truly great and godlike as justice"; and in the words of Daniel Webster's eulogy: "Whoever labors on this edifice of justice, clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself in name, fame, and character with that which is, and must be, as durable as the frame of human society."