Judges as Low Makers more particularly in mind the character and effect of judicial action in mould ing what he called the "Common Law," but there is yet more obviously room for wise and enlightened law-making when our American judges are called to deal with questions of constitutional and statutory construction; for, in the United States, these questions have been and
are now fraught with consequences of a moment to the community elsewhere unknown.
When a law is enacted, some of our publicists, some of our jurists, some of our statesmen would seem to think first,
not how it can be faithfully observed, but how it can be skilfully and safely eluded; for them it is prima facie, not a command of our common sovereign, the
American people, a command which every loyal American obeys in letter and in spirit, with all his heart and all his mind and all his strength, but, in gen eral, a mere sop to a troublesome Cer berus, a mere blind meant to hoodwink or soothe an inconveniently exacting public opinion, something to be talked
511
eral Powers, since that doctrine, in last
resort, merely applies to the Consti tution the principles so severely criti cized when announced by Mr. Pinchot, namely, that any law should be so con strued as to make it fruitful, not barren,
ut res magis valeat guam pereat, a prin ciple which is now not only overwhelm ingly sustained by authority, but, on its face, is the plain dictate of common
sense. An Act of the Legislative Power is the command of the sovereign, it voices the sovereign's wishes; if those owing alle giance to the sovereign, and therefore a loyal obedience to the law, know,
either from the terms of the statute itself or from the circumstances of its enact ment or from any other statutes in pari materia, what are the wishes of the sov
ereign as to its general subject-matter, what are the ends the sovereign seeks to attain, what are the mischiefs the sov
ereign seeks to remedy by giving this command, surely, if there be room for any doubt at all as to its meaning, they will obey it in that sense which will bring to pass what the sovereign would have done, which, so far as may be, will
about during a political campaign and forgotten when the polls have closed, something through which any adroit counsel of any huge “interest," if he be really worth his large fees, should be able to drive a coach and six, even an automobile at racing speed. It is but consistent that those who think thus of
one wearing birds of a certain species in his hat. AChief of Police, called upon
our laws should think of our courts as properly and essentially umpires in a
wearing such a bird in his hat, but many
make impossible what the sovereign would prevent.
Some years ago, in
one of our Eastern states, a statute punished by fine or imprisonment any
to enforce this law, could find no person
game of mingled chance and skill played
persons each of whom wore one or more
by opposing counsel, with no higher duty
than to enforce the established rules of the game, and with no responsibility, in law or morals, for its results to the com
of them in her hat; applying Mr. Pin~ chot’s principle of construction, he so read the law as to make it mean some thing and not so as to make it a dead
munity or to humanity. Those who think, or would have others think thus, have, of course, no sympathy
it aright? A trade mark consisting of the figure of a fish, belonging to one of
with, exempli gratia, Chief Justice Mar shall’s favorite doctrine of Implied Fed
my clients, was once pirated by an ingenious rival in business, who called
letter; does anyone doubt that he read
