the statutes and not the courts specifiy the tests, definite and certain, by which to determine what it is that is deemed to possess the criminal degree of such dangerous tendency.

GENERAL STATEMENT AS TO THE REQUIRED CERTAINTY OF

CRIMINAL STATUTES.

We now come to the contention that a criminal statute cannot constitute "due process of law," unless it is general, uniform, fixed and certain. These qualities are more or less related, since if a law is not fixed and certain it can seldom be general and uniform in its application. Now we are specially interested to get a more condensed summary as to what is meant by the requirement of fixity and certainty, in a statute.

Our claim is that a criminal statute, to constitute “due process of law,” must define the crime in terms so plain, and simple, as to be within the comprehension of the ordinary citizen, and so exact in meaning as to leave in him no reasonable doubt as to what is prohibited. Those qualities of generality, uniformity, and certainty, must arise as an unavoidable necessity out of the very letter of the definition framed by the law-enacting power, and not come as an incidental result, from an accidental uniformity in the exercise, by courts, of an unconstitutionally delegated legislative discretion. If a statute defining a crime is not self-explanatory, but needs interpretation or the interpolation of words or tests to insure certainty of meaning, or because its ambiguity permits of more than one judicial interpretation, then it is not “the law of the land," because no such selected interpretation of the courts has ever received the necessary sanction of the three separate branches of legislative power, whose members alone are authorized and sworn to define crimes and ordain their punishment. Laws defining crimes are required to be made by the lawmaking branch of government because of the necessity for limiting and destroying arbitrariness and judicial discretion in such matters. That is what we mean when we say ours is a government by law and not by men. It follows that it is not enough that uniformity and certainty shall come as the product of judicial discretion, since "law” is necessary for the very purpose of destroying such discretion in determining what is punishable.

CHAPTER XX.

“DUE PROCESS OF LAW” IN RELATION TO

STATUTORY UNCERTAINTY AND

CONSTRUCTIVE OFFENSES.

PART III.

Historical Interpretation of “Law" in Relation to

Statutory Certainty."

As I view history, the evolution of organized government toward liberty, especially in its relation to laws which are penal in character, is clearly divided into three general stages of tendency. The first of these manifests itself in the effort to restrain autocratic sovereigns and their minions in the arbitrariness of their power to punish, by subjecting their wills and penalties to the authority of prior known rules or laws. The second step in this evolution toward liberty is to curtail the authority of the lawmaking power as to the manner of its exercise, so that it may not, even under the forms of law, violate that natural justice which requires uniformity of the law in its application to all those who in the nature of things are similarly situated, which uniformity, of course, is impossible unless the law is certain in the definition of what is prohibited. The third tendency is marked by the curtailment of the legislative power as to the subject matter of its control, so as to conserve a larger human liberty by excluding certain conduct -and progressively an increasing quantum thereof-from all possible governmental regulation, even by general, uniform and certain laws. This should later limit legislation to the prohibition of only such conduct as in the nature of things necessarily involves an invasion of the liberty of another, to his material and ascertainable injury. I have no doubt it was such a government, of limited power to regulate human affairs, that the framers of American constitutions intended to establish.

The stage before the evolution above indicated we generally term a lawless government of men, in contradistinction to a government by men according to law, and such a government of men is always despotic and arbitrary, although it may at times be a relative benevolent despotism. The first advance means a government by men according to prior established rules, which rules may be as invasive and unjust as the legislative power sees fit to make them. This condition is aptly described as tyranny by the laws, of which we find many examples all around us. The second progressive stage is that wherein men strive to limit the exercise of the law-making power so that it may not, even under the forms of law, do violence to that natural justice which demands definiteness and uniformity affecting those who are similarly accused.

The third stage wherein the legislative power is limited to the suppression of acts which are necessarily, directly, and immediately, invasive, is aptly termed liberty under the law. Our present stage of evolution, so far as the leaders of thought are concerned, is probably to be located near the beginnings of this stage, and in the course of a few thousands of years we may attain to something approximating real liberty under the law; and in another million years we may attain to the Anarchist ideal, which is liberty without law, made possible because no one has the inclination to invade his neighbor, and all are agreed as to what constitutes an invasion. The great mass of Americans, and humans generally, are now in that stage of their development which compels a love of tyranny under the forms of law—a tyranny tempered only by the discretion of the ignorant, such as know nothing of liberty in the sense of an acknowledged claim of right to remain exempt from authority.

The transition from despotism to government by law in its earlier stages is marked by the misleading seemings of law, which, however, are devoid of all its essence. This is illustrated in many of the miscalled laws of the Russian Tsar, and also in the Chinese code, which latter prescribes a punishment for all those who shall be found guilty of "improper conduct," without supplying any further criterion or test of guilt. Manifestly under such authority the magistrates are justified in punishing anything which whim, caprice, or malice might prompt them to adjudge "improper." Accordingly, we have a state of affairs wherein under the misleading appearances of law everything is condemned, and the arbitrary will of the officers of the State again creates the penalty instead of merely enforcing "the law" as they find it. Thus, while observing the outward forms and seemings of law, the people are still governed by the mere despotic wills of officials.

Upon the questions as to what are all the essentials of law, and what are the limits of liberty, we still have, in the main, very crude thinking and perhaps still more crude efforts toward generalizations. So far as my investigations have informed me, no court has had the confident clarity of vision to even attempt the formulation of a comprehensive general statement as to the limits of liberty and governmental control. This of course means that our judges are still in that early stage of their intellectual development wherein this branch of the law has not become a science. However, it is a most deplorable state of mind which too often impels courts to confess to the permanent intellectual bankruptcy of the judiciary by asserting that such definitive generalizations are impossible.

The present purpose is to inquire into the historical verdict as to the reasons which make law a necessity and especially the verdict of all lovers of liberty as to the degree of certainty required to make a penal statute the law, and its enforcement “due process of law.” The method will be to exhibit the facts and the authoritative declarations concerning this question as these appear in our juridical history. This fragmentary material often includes very crude statements of imperfectly conceived principles, as well as mere empirical generalizations, but out of it we will later erect a rational generalization, and this will be done so far as is necessary to determine the degree of certainty required in the law, as the same is formulated in penal statutes.

I confess that it seems to me as though men claiming to be learned in the law should be presumed to know all that follows, and yet it is self-evident that they do not. self-evident, because the fact is notorious that among the many uncertain criminal statutes those only which are directed against “obscene, indecent, filthy or disgusting" literature and art, which words are as vague as a London fog, have resulted in over 5000 persons being deprived of life, liberty, or property, and yet it seems hardly to have occurred to any one connected with these cases to question the constitutionality of those laws

I say

because of their uncertainty. Such facts, and numerous equally vague statutes and municipal ordinances which are continually being enforced, without having their constitutionality questioned, demonstrate that the intelligence of the profession in general has not yet risen to the point where there is any need to apologize for attempting to enlighten its members concerning the constitutional requirement of certainty in pepal statutes.

EARLY WRITERS ON THE NECESSITY OF LAW. John Adams, in "A Defense of the Constitution and Government of the United States," defends at some length the proposition that even under laws to which all are equally subject the Majority may oppress the minority. In this connection he speculates about the meaning and limits of liberty, in the course of which discussion he quotes from numerous old authors about the necessity of a government according to law to prevent the tyranny of arbitrary punishments by the magistrate. I will now reproduce some of Mr. Adams' quotations and speculations, asking the reader as he scans these quotations concerning the necessity for having princes and judges govern according to law, always to bear in mind the essential nature of the law, in contradistinction to arbitrary edicts.

"It is weakness rather than wickedness which renders men unfit to be trusted with unlimited power.

* Junius says: 'Laws are intended, not to trust to what men will do, but to guard against what they may do.' Aristotle says that 'A government where the Laws alone should prevail, would be the kingdom of God.' This indeed shows that this great philosopher had much admiration for such a government. Aristotle says, too, in another place, 'Order is law, and it is more proper that law should govern, than any one of the citizens; upon the same principal, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.' These two are very just sentiments, but not a formal definition of liberty. Livy, too, speaks of happy, prosperous, and glorious times, when Imperia legum potentiora fuerant quan hominum.' But he nowhere says that liberty consists in being subject only to the legum imperio. Sidney says, 'No sedition was hurtful to Rome, ‘until through their prosperity some