America to keep people from stepping into it," and that "in a democracy with little government things might go badly in detail but well on the whole, while in a monarchy with much and omnipresent government things might go very pleasingly in detail, but poorly on the whole." This was forty years ago. From the least governed people in the world we are rapidly becoming the most governed people in the world. Our increasing commissions for almost every department of public affairs are making our government, state and national, the most comprehensive system of bureaucracy ever known. The complex conditions of our times in each of their diversified forms are given special treatment and administration. This is a prolific source of legislation, much of it in flagrant disregard of the best sanctioned and most venerated doctrines.

The administration of justice should be by the courts alone. It is subversive of every idea of Anglican civil liberty for the judge to commit himself in any way to an opinion until the cause shall have been presented according to law. This is the distinguishing feature between the accusatorial and the inquisitorial trial, in which the judge inquires, becomes the prosecutor, and at the same time is theoretically the protector of the arraigned, "thus uniting a triad of functions within himself which amounts to a psychological incongruity."

It is demanding an impossibility of human nature, to expect one to try, with the proper judicial temperament, a cause first brought to his attention by an ex parte complaint, to which he has so far inclined his mind upon a preliminary showing as to institute an investigation, and upon which after such investigation, upon proceedings initiated by his sanction, he sits in judgment. One might as well expect the hunter who, with toil and skill has tracked and started his game, when his blood is stirred and his whole being is aroused by the spirit of pursuit, to sit down calmly and deliberate whether or not it is right to destroy life for the sake of mere sport. Wrongs, great, flagrant, voluminous and inveterate, stirred to action. In a spirit of passion wrought upon by demagogues for selfish purposes, the people sought an expeditious remedy. Judicial, legislative and executive

functions were hopelessly confused and consolidated. The offices of informer, prosecutor, judge and jury were combined in the same persons. The most astute and experienced mind could not contrive a better system for defeating justice. Mr. Webster said:

"If we will abolish the distinction of branches, and have but one branch; if we will abolish jury trials, and leave all to the judge; if we will then ordain that the legislator shall himself be that judge; and if we place the executive power in the same hands, we may readily simplify government. We may easily bring it to the simplest of all possible forms, a pure despotism. But a separation of departments, so far as practicable, and the preservation of clear lines of division between them is the fundamental idea in the creation of all our constitutions; and doubtless,. the continuance of regulated liberty depends on maintaining these boundaries."

The American people will not perpetuate a system so foreign to the principles which have been the foundation and safeguard of their prosperity, property rights and civil liberty. Their sense of justice, when a full understanding comes, will not sanction its continuance. While there may be commissions, the judicial function will be exercised either by bodies distinct from those which investigate and prosecute, or by the courts.

Much recent legislation of doubtful constitutionality, congressional and state, has been practically enforced by provisions for minatory, heavy and cumulative fines and imprisonment, devised in some cases expressly for the purpose of preventing a resort to the courts for relief. When the highest courts of the land, not exceptionally, but with a frequency that almost makes it normal, divide on constitutional questions, often determining the result by a bare majority, a lawyer will rarely, especially when the question is new, advise a client to pursue a course, which, by subjecting him to the possibility of paying cumulative daily fines, and to imprisonment, may destroy him. Though strongly persuaded, if not entirely convinced, that the acts if contested would. be unconstitutional, he may counsel submission to what he regards as a taking of property without due process of law and an imposition of an oppressive and confiscatory burden, rather than incur the hazard of financial ruin. A statute framed purposely

to create such a dilemma is tyranny worthy of Draconian renown. No government can with impunity continue to exercise such oppression. It is a "hold-up" by the government itself, under the forms of law. If pursued it would pervert all sense of justice and accustom the minds of the people to the sanction of wrong as a practice of government. The vice thus implanted would take on new forms of legalized plunder and surely destroy the integrity of our institutions.

A recent state statute establishing the compensation to be charged by railroads for the transportation of passengers fixed the penalties at such an amount for each overcharge that, if the railroad companies contested the validity of the rates and failed to establish their contention, they would have run the hazard of forfeiture to the state within a year of the entire railroad property within the state. The decision of the Supreme Court of the United States in Ex parte Young that "when the penalties for disobedience are by fine so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights," and that "the provisions of the acts relating to the enforcement of the rates, either for freight or passengers, by imposing such enormous fines, and possible imprisonment, as a result of an unsuccessful effort to test the validity of the laws themselves, are unconstitutional on their face, without regard to the question of the insufficiency of those acts," will either bring legislators to a fairer treatment of the evils which they seek to remedy or will tax their ingenuity to devise some new method to evade federal restraint.

When public affairs go wrong, Americans, instead of being stimulated to right them under existing forms and laws, immediately cast about to invent something new, hoping to construct an arrangement which will operate automatically with the minimum of individual effort. Believing in labor-saving devices, they seek to make political machinery not merely suppletory to, but largely a substitute for the functions of the citizen. This

disposition is now being manifested by the enactment of primary election laws. The people became, or rather continued to be, somnolent, for that is their normal political conditon, and abdicated their power, not intentionally, but effectually in favor of self-constituted governmental administrators. Disappointment, disgust and indignation aroused to action. The most obvious and speedy remedy, that of prompt and constant self-assertion in the administration of public affairs, was never thought of, and the legislature, that inexhaustible storehouse of fair seeming but specious remedies, was resorted to. Since our last meeting, following the example of other states, and without waiting for evidence of appreciable benefit, Illinois, Kansas, Maryland, Michigan, and Ohio, have passed primary election laws, and New York has elaborately amended its existing laws. They are at least a protest, if not an effective safeguard, against the dictation, abuses and chicane of political bosses, who become omnipotent simply because the people are not constant enough in their patriotism to make the sacrifices which under any system of party organization are the cost of a government which in theory directly reflects the will of those upon whom the responsibility of exercising the political power rests. The primary plan changes the form without altering any essential conditions. It may be better or worse than other systems. That will not control the final result. With the same indifference, lethargy and selfish devotion to personal interest on the part of the people at large, and the same astuteness, sleepless application and bold dishonesty on the part of those who make a trade of politics, public affairs under any system will be dominated by the professional politician. After the novelty passes away and public vigilance becomes relaxed, the primary election will present no obstacle to the political organizer. It introduces a cumbersome and expensive machinery and vexes the people with additional elections which are not surrounded with the same safeguards against fraud as are regular elections where well-organized parties are keen for and strong enough to expose the machinations of their opponents. It is democratic, but it can never, if it truly reflects the popular will, dispense with that individual participation which is essen

tial to all good government and which, if exercised, will be just as effective whether the party organization be controlled through a primary election or some other system. The only effective and permanent remedy is the intelligent and constant use of the electoral power, the proper exercise of which begins at the foundation of active government, that is with party organization. When we arrive at a full sense of the dignity of exercising sovereign power, held not for ourselves merely, but in trust for the republic, and act under the consciousness that it is the highest civic duty which cannot be neglected without at least passive treason to the state, then the mere forms of party management will cease to be substance, and as ineffective for manipulation by political schemers, as they are impotent to protect against the evils inflicted upon the body politic by the potentialities exercised by a vast army of voters mobilized through the power of political affiliation, and exploited by adroit leadership.

In our zeal to have the law symmetrical, wise and clear we may unconsciously assume the critical rather than the judicial attitude toward legislation and thus have our attention arrested more by its shortcomings than by its excellences. If too many laws are passed we must not overlook that but few are enacted in comparison with those that are rejected. Though some are the offspring of prejudice and passion, it must not be forgotten that often they are provoked by wrongs that arouse a just resentment. While adroit schemes for political patronage and graft are successfully contrived, yet the vast majority of legislation is conceived for the general welfare. No one can examine all the statutes of the states and of Congress for any one year, without being profoundly impressed by the deep, earnest, alert purpose, generally manifested, to promote the public good, and without reaching a conclusion that, at no time in our history, has a higher moral sense or a more enlightened patriotism prevailed. Never have humanitarian considerations been so dominant in legislation, as is manifested by the recent laws to secure pure foods, to prevent the sale of noxious drugs, to limit the abuses of liquor, to care for and reform homeless, dependent and erring