De Tocqueville in his "Democracy in America" says "I hold it to be an impious and execrable maxim that, politically speaking, the people has a right to do whatever it pleases; and yet I have asserted that all authority originates in the will of the majority. Am I then in contradiction with myself? "A general law which bears the name of justice, has been made and sanctioned not only by a majority of this or that people, but by a majority of mankind. The rights of every people are consequently confined within the limits of what is just. A nation may be considered in the light of a jury, which is empowered to represent society at large and to apply the great and general law of justice. Ought such a jury, which represents society, to have more power than the society in which the law it applies originates? "When I refuse to obey an unjust law, I do not contest the right which the majority has of commanding, but I simply appeal from the sovereignty of the people to the sovereignty of mankind. It has been asserted that a people can never entirely outstep the boundaries of justice and of reason in those affairs which are more peculiarly its own; and that, consequently, full power may fearlessly be given to the majority by which it is represented. But this language is that of a slave. "A majority, taken collectively, may be regarded as a being whose opinions, and most frequently whose interests are opposed to those of another being, which is styled a minority. If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should a majority not be liable to the same reproach? Men are not apt to change their characters by agglamorating; nor does their patience in the presence of obstacles increase with the consciousness of their strength. And for these reasons I can never willingly invest any number of my fellow creatures with that unlimited authority which I should refuse to any one of them. "I do not think that it is possible to combine several principles in the same government so as at the same time to maintain freedom and really to oppose them to one another. The form of government which is usually termed mixed has always appeared to me to be a mere chimera. Accurately speaking, there is no such thing as a mixed government, with the meaning usually given to that word; because in all communities some one principle of action may be discovered which preponderates over the others. England in the last century-which has been more especially cited as an example of this form of government-was in point of fact an essentially aristocratic state, altho it comprised very powerful elements of democracy; for the laws and customs of the country were such that the aristocracy could not but preponderate in the end, and subject the direction of public affairs to its own will. The error arose from too much attention being paid to the actual struggle that was going on between the nobles and the people, without considering the probable issue of the contest, which was really the important point. When a community actually has a mixed government-that is to say, when it is equally divided between two adverse principles-it must either pass through a revolution or fall into complete dissolution. "I am therefore of opinion that some one social power must always be made to predominate over the others; but I think that liberty is endangered when this power finds no obstacle which can retard its course, and force it to moderate its own vehemence. "Unlimited power is in itself a bad and dangerous thing. Human beings are not competent to exercise it with discretion. God only can be omnipotent, because His wisdom and His justice are always equal to His power. But no power on earth is so worthy of honor for itself that I would consent to admit its uncontrolled and all-predominant authority. When I see that the right and the means of absolute command or of reverential obedience to the right which it represents are conferred on a people or upon a king, upon an aristocracy or a democracy, a monarchy or a republic, I recognize the germ of tyranny; and I journey onward to a land of more hopeful institutions. "In my opinion, the main evil of the present democratic institutions of the United States does not arise, as is often asserted in Europe, from their weakness, but from their irresistible strength. I am not so much alarmed at the excessive liberty which reigns in that country at at the very inadequate securities which exist against tyranny. "When an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority, and implicitly obeys its instructions; if to the executive power, it is appointed by the majority, and is a passive tool in its hands. The public troops consist of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain cases, even the judges are elected by the majority. However iniquitous or absurd the evil of which you complain may be, you must submit to it as well as you can. "If, on the other hand, a legislative power could be so constituted as to represent the majority without necessarily being the slave of its passions, an executive so as to retain a certain degree of uncontrolled authority, and a judiciary so as to remain independent of the other two powers, a government would be formed which would still be democratic, without incurring any risk of tyranny. "I do not say that there is a frequent use of tyranny in America at the present day; but I maintain that no sure barrier is established against it, and that the causes which mitigate the government are to be found in the circumstances and the manners of the country more than in its laws."' You will note he says, "When I refuse to obey an unjust law I do not contest the right which the majority has of commanding but I simply appeal from the sovereignty of the people to the sovereignty of mankind.” The context seems to show that by this he means he appeals from the judgment of one nation or people at a given time to the sense of justice of the world and mankind in every age. God the Father has endowed individuals with certain unalienable rights, some of which are embodied in the Declaration of Independence, and neither a nation nor the world has any rightful authority to deprive him of them. The Federal Courts are distinctly charged with the enforcement of the Constitution and laws of the United States even as against States and people. They secure litigants against local prejudice and favor, but highest among their duties is the preservation of liberty and right so far as shielded by the Federal Constitution against the wrongs of individuals and even temporary majorities. In them alone is found that protection against tyranny that De Tocqueville thought lacking in our free institutions. Many honest and misguided men, ignorant of the means whereby human liberty must be safeguarded if it is to be preserved, and many others careless of the effects upon human rights, if they can promote their political welfare, preach in favor of constitutions easily amendable and advocate making judges subject to punishment for sustaining the rights of men. The bar has for ages furnished the ablest and most numerous advocates of human liberty. The business of a lawyer should make him a student of history, and of the wrongs done liberty in the past, and of those means devised by the wisdom of the ages to protect human rights. Lawyers by training and tradition are more capable than any equal number of others of appreciating when liberty is in danger and are more solemnly charged than others with responsibility for its defense. They must bear a very heavy measure of responsibility if the safeguards of liberty are broken down and human rights are made in times of excitement subject to the mad malice of the mob. THE TOASTMASTER: The banquet program is concluded. I am sure you will unite with the Chair in the opinion that it has been an interesting and pleasant evening. I bid you all good night. FRIDAY FORENOON SESSION THE PRESIDENT: The Convention will please be in order. SENATOR C. G. SAUNDERS: Your committee, appointed to draft suitable resolutions to the memory of Charles M. Harl, former President of this Association, pursuant to the directions of the Association, at the September Term of the Supreme Court in the year 1910, presented the resolutions to the Supreme Court, and they were by that Court spread upon the records of its proceedings. THE PRESIDENT: I will call for the regular order of business, and that is the report of the Committee on Law Reform, Justice Deemer, chairman. [The following report of the Committee on Law Reform was printed and distributed to members prior to the meeting: To the Iowa State Bar Association: Your Committee on Law Reform make the following report. We recommend for adoption propositions Nos. I, II, III, and IV, and submit for discussion No. V. I The Legislature should adopt the following statute: No judgment shall be set aside or reversed or new trial granted by any court of this State in any case, civil or criminal, on the ground of misdirection of the jury or for the improper admission or rejection of evidence, or for any error as to any rejection of evidence, or for any error as to any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire cause, it shall appear that the error complained of has injuriously affected the substantial rights of the parties. II This Association recommends the adoption of an employers' liability law and a workingmen's compensation act. III We approve the act introduced in the last Legislature at the suggestion of the Law Reform Committee of this Association for the relief of the Supreme Court and especially recommend and urge its adoption by the next General Assembly. IV Sec. 3564 of the Code should be repealed and the following enacted as a substitute: "The defendant or plaintiff may demur to one or more of the several causes of action alleged in the petition or counter claim and answer or reply to the residue. And no pleading shall be held sufficient merely because of failure to demur thereto. But if the petition of the plaintiff or the counterclaim or cross petition of a defendant or defendants do not entitle the party to any relief whatever, or the answer or reply do not constitute any defense to the cause of action, advantage must be taken of the defect by demurrer, and if no demurrer is interposed, by motion in arrest of judgment.’’ V For discussion: Neither insanity nor intoxication should be regarded as a complete defense to any criminal charge, but either may be considered in determining the degree of the offense. Mr. Carroll Wright of the committee does not concur in proposition No. I, although he thinks the subject matter worthy of discussion. A further report with reference to a resolution favoring the repeal of the collateral inheritance tax law and to some other matters will be made during the session. Respectfully submitted, H. E. DEEMER J. J. CLARK W. P. BRIGGS A. N. HOBSON JUSTICE DEEMER: Gentlemen of the Association: The Committee on Law Reform has endeavored to present for your consideration timely and interesting subjects, which we hope will be fruitful of intelligent discussion. Our first report has already been printed and now appears on the regular program, so that I shall not take your time reading it, preferring to call it up section by section later for adoption. We have a supplemental report, part of it responsive to a motion passed during the closing days of our last meeting and referred to this committee, being a resolution respecting the repeal of the collateral inheritance tax law. We also have one other matter which we wished to embody |