Abbott Lawrence Lowell

“ Those persons who regard the provisions of the Constitution, and particularly the ones designed to protect the rights of the individual, not as a mere collection of arbitrary rules, but as a set of principles adapted to promote the happiness and prosperity of the people, will find it easy to believe that these principles, clearly expounded and wisely applied, cannot fail to retain their hold upon the respect of the citizen. ”

“ IT is one of the popular fallacies of the present day that the responsibility for the state of the law rests entirely with the legislative branch of the government. In reality, this responsibility is in every country shared to a great extent by the legal profession, and the slow development of the law, which results from the writings of jurists, the judgments of courts, and the customary practice of lawyers, is, perhaps, more irresistible, because less noticed, than the violent changes produced by direct legislation. ”

“ The truth is that our fathers, while admitting the right of the majority to govern within certain limits, believed that there were principles more important than the execution of the popular will, and rights which ought not to be violated by the impulse and excitement of a majority; and the constitutional provisions established by them remain in force to-day, because we still believe in the sacredness of the principles which they preached. ”

“ Stated in such a form, the power of our judiciary is certainly very startling; and it is even more surprising that a power so extensive should have been placed in the hands of a small number of men, chosen exclusively from one profession, and that among a people who are jealous of the influence of all associations and professions, and who are impatient of authority of every kind. ”

“ What is needed to maintain the esteem in which the courts are now held is a careful study of the principles established by the Constitution, and a clear development of the theories of constitutional law; not theory in the narrow sense of something contrasted and often irreconcilable with practice. Theory in this sense is nothing more than a set of doctrines, at best the logical result of premises more or less inaccurate. It is extremely easy to manufacture, and is justly an object of suspicion to the community. ”

“ And yet even the layman may be ready to grant that an exalted sense of the importance of the subject, broad views, and a strong grasp of constitutional principles, on the part of the advocates, cannot fail to have a very great effect upon the decision of the court.
Some cynic, who has had the patience to read so far, will, no doubt, remark that the legal profession is not a charitable institution, and that men practise law to get money, and support themselves, and not from philanthropic motives. ”

“ These principles stand on the same ground as moral precepts. The restraints they place upon us are not always agreeable, but we continue to uphold them, because we believe in their inherent righteousness and in their importance to the well-being of the world. The duty of watching over and guarding these fundamental principles, — these legal morals, if I may be allowed the term, — of developing, explaining, and defending them, rests with the legal profession; and if this is true, it is surely difficult to overestimate the responsibility of lawyers in America. ”

“ Now, the Constitution is always older than the law in question, and may be more ancient by a century, so that the court, in deciding that a law is unconstitutional, declares, in effect, that the present wishes of the people cannot be carried out, because opposed to their previous intention, or, perhaps, to the views of their remote ancestors. ”

“ Of course all our constitutions have a safety-valve in the power of amendment, so that any of them can be changed by a sufficient proportion of the voters, if they persist long enough in the same opinion; but this, while modifying, does not do away with the fact that it is often the duty of our courts to defeat the immediate wishes of a majority of the people. ”

“ In many of the continental countries of Europe a public officer is not amenable to the ordinary process of law, either by virtue of a provision that he cannot be sued or prosecuted in the ordinary courts, on account of any act done under color of his office, without the consent of a council composed of his official superiors, or because his acts are cognizable only by special administrative tribunals; and where this is true, it is clear that the judiciary cannot by their decisions bind the other branches of the government. ”

“ We are naturally in the habit of ascribing to the courts a sort of supernatural power to regulate the affairs of men, and to restrain the excesses and curb the passions of the people. We forget that no such power can in reality exist, and that no court can hinder a people that is determined to have its way. ”

“ This saying is a very common one, but it is founded on a most pernicious error, for either it uses the word “theory” in the ridiculous sense of something which ought to be true, and would be true if the world were properly constructed, or else it assumes that a theory may be correct although inconsistent with the facts or practice which it attempts to explain; whereas in reality a theory which does not agree with the facts, or will not work in practice, is simply wrong. ”

“ Our constitutional law depends for its force, therefore, upon the fact that it approves itself to the good sense of the people; and the power of the courts is held upon condition that the precedents established by them are wise, statesmanlike, and founded upon enduring principles of justice which are worthy of the respect of the community. ”

“ If he has done any act in excess of his authority, he is liable for it precisely as any one else who had done the same act would be; and it is for the ordinary courts of common law to decide whether the act in question is beyond his authority or not. If, therefore, the court has decided that a certain statute is unconstitutional, every one knows that he may treat that statute as invalid. He knows that the court will give him redress against any person, whether public officer or private citizen, who injures him under color of its provisions ”

“ The Executive and Legislature are elected by the people, or by some rough approximation to a majority of the people, and, in a general way, they are expected to carry out the wishes of their constituents; but the Courts stand in a very different position. They are not in any ordinary sense of the word the representatives of the people, and it is not their mission to enforce the popular will. To some extent, it is true, the opinion has prevailed that the judges, like all other public servants, ought to depend for office upon popular esteem or approval ”

“ In short, that nothing can control the popular will except the sober good sense of the people themselves. One has only to turn his eyes to France to see the truth of this statement. That country has had a dozen constitutions, each as sacred as such an instrument can be, but they have all been short-lived, and no one supposes that their frail existence could have been preserved by granting to the French courts the powers possessed by our own. ”

“ Every American lawyer is, in a sense, therefore, a statesman by virtue of his profession, and may at any time find himself called upon to take part in deciding questions destined to leave a lasting mark upon the government of his country. ”

“ A man who is unconscious of the strength of the esprit de corps of a great profession, of its power to inspire its members with a high and noble ambition, and to make itself an end and not a mere means of making money; a man who has never felt this has failed to appreciate one of the most valuable of human qualities,—he has only to turn his eyes to the doctors to see its force, and no careful search is required to find it among lawyers. ”

“ Let us hope that such a feeling will never die out, for it is a purifying and ennobling one; but to-day our national union is entirely accomplished, and we need no symbol or pledge to assure us of the fact. ”

“ We need that ripe scholarship which regards theory as truth stated in an abstract form, to be constantly measured by practice as a test of its correctness; for theory and practice are in reality correlatives, each of which requires the aid of the other for its own proper development. ”

“ To this I answer that no profession can be great unless the money-making aims of the individual are leavened by a sense of the importance of his vocation and of the dignity of the body that pursues it. ”

“ His position, it is true, differs in one very important respect from that of a member of Parliament, for he appears on the side which he is retained to represent, and not on that which he believes to be right,—a state of things which it is useless to try to explain to a layman, and which to a lawyer needs no explanation. ”

“ He then finds himself arguing questions which among other nations are determined by a popular assembly or parliament of the realm. He argues, moreover, before a court whose decision becomes a precedent, often more difficult to shake than any act of Parliament. ”

“ The cause of such a state of things is obvious. The French constitutions are the work of a party, and the people at large are more anxious to accomplish their immediate aims than to maintain the theoretical doctrines embodied in these instruments. ”