LITMIR.BIZ

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or to aesthetic interests.

      There are many arguments outside of sermons which turn on questions of right and wrong. Questions of individual personal conduct we had better not get into; but every community, whether large or small, has often to face questions in which moral right and wrong are essentially involved. In this country the whole question of dealing with the sale of alcoholic drinks is recognized as such. The supporters of state prohibition declare that it is morally wrong to sanction a trade out of which springs so much misery; the supporters of local option and high license, admitting and fighting against all this misery and crime, declare that it is morally wrong to shut one's eyes to the uncontrolled sales and the political corruption under state-wide prohibition. The strongest arguments for limiting by law the hours of labor for women and children have always been based on moral principles; and all arguments for political reform hark back to the Ten Commandments. One has the strongest of all arguments if he can establish a moral right and wrong in the question.

      The difficulty comes in establishing the right and wrong, for there are many cases where equally good people are fighting dead against each other. The question of prohibition, as we have just seen, is one of those cases; the slavery question was a still more striking one. From before the Revolution the feeling that slavery was morally wrong slowly but steadily gained ground in the North, until from 1850 it became more and more a dominant and passionate conviction.¹ Yet in the South, which, as we must now admit, bred as many men and women of high devotion to the right, this view had only scattered followers. On both sides tradition and environment molded the moral principle. In arguing, therefore, one must not be too swift in calling on heaven to witness to the right; we must recognize that mortal vision is weak, and that some of the people whom we are fighting are borne on by principles as sincerely held to be righteous as our own.

      Nevertheless, a man must always hold to that which to him seems right, and fight hard against the wrong, tolerantly and with charity, but with unclouded purpose. In politics there are still in this country many occasions when the only argument possible is based on moral right. The debauching of public servants by favors or bribes, whether open or indirect, injustice of all sorts, putting men who are mentally or morally unfit into public office, oppression of the poor or unjust bleeding of the rich, stirring up class or race hatred, are all evils from which good citizens must help to save the republic; and wherever such evils are found the moral argument is the only argument worthy of a decent citizen.

      By far the most numerous of arguments of policy, however, are those which do not rise above the level of practical interests. The line between these and arguments of moral right is not always easy to draw, for in the tangle of life and character right and advantage often run together. The tariff question is a case in point. Primarily it turns on the practical material advantage of a nation; but inevitably in the settling of individual schedules the way opens for one industry or branch of business to fatten at the expense of another, and so we run into the question of the square deal and the golden rule.

      In general, however, the great questions on which political parties divide are questions of practical expediency. Shall we, as a nation, be more comfortable and more prosperous if the powers of the federal government are strengthened and extended? Shall we have better local government under the old-fashioned form of city government, or under some form of commission government? Should we have more business and more profitable business if we had free trade with the Dominion of Canada? Shall we be better off under the Republican or the Democratic party? All these are questions in which there is little concern with right and wrong: they turn on the very practical matter of direct material advantage. In some of these cases most men vote on one side or the other largely through long habit; but there constantly arise, especially in local matters, questions which cross the usual lines of political division, so that one, willingly or unwillingly, must take the trouble of thinking out a decision for himself. Not infrequently one is a good deal puzzled to decide on which side to range himself, for the issues may be complex; then one reads the arguments or goes to meetings until one side or the other seems to present the most and the most important advantages. When one is thus puzzled, an argument which is clear and easy to understand, and which makes its points in such a way that they can be readily carried in mind and passed on to the next person one meets, has a wonderful power of winning one to its side.

      The arguments of policy which, after political arguments, are the most common, are those on questions of law. As we have seen a few pages back, such arguments are settled by the judges, while questions of fact are left to the jury. In the White Murder Case, in which Daniel Webster made a famous argument, it was a question of fact for the jury whether the defendant Knapp was in Brown Street at the time of the murder, and whether he was there for the purpose of aiding and abetting Crowninshield, the actual murderer; the question whether his presence outside the house would make him liable as a principal in the crime was a question of law. This distinction between questions of fact and questions of law is one of the foundation principles of the common law. From the very beginning of the jury system, when the jury consisted of neighbors who found their verdict from their own knowledge of the case, to the present day when they are required carefully to purge their minds of any personal knowledge of the case, the common law has always held that in the long run questions of fact can best be settled by average men, drawn by lot from the community. Questions of law, on the other hand, need learning and special training in legal reasoning, for the common law depends on continuity and consistency of decision; and a new case must be decided by the principles which have governed like cases in the past.

      Nevertheless, these principles, which are now embodied in an enormous mass of decisions by courts all over the English-speaking world, are in essence a working out into minute discriminations of certain large principles, which in turn are merely the embodiment of the practical rules under which the Anglo-Saxon race has found it safest and most convenient to live together. They settle in each case what, in view of the interests of the community as a whole and in the long run, and not merely for the parties now at issue, is the most convenient and the justest thing to do. Mr. Justice Holmes, of the Supreme Court of the United States, wrote before his appointment to that bench:

      "In substance the growth of the law is legislative. And this in a deeper sense than that what the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret roots from which tine law draws all the juices of life. I mean of course considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of move or less definitely understood views of public policy; most generally, to be sure, under our practices and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis."²

      In some cases it is obvious that the question of law is a question of policy, as in the so-called "political decisions" of the United States Supreme Court. Such were the decisions formulated by Chief Justice Marshall on constitutional questions, which made our government what it is. The difference between "the strict construction" of the Constitution and the "free construction" was due to a difference of temperament which has always tended to mark the two great political parties of the country. So with the Insular cases, which determined the status of the distant possessions of the United Stales, and which split the Supreme Court into so many pieces: the question whether the Constitution applied in all its fullness to Porto Rico and the Philippines was essentially a political question, though of the largest sort, and therefore a question of policy.

      Finally, there are the arguments of policy which deal with matters of taste and aesthetic preference. The difficulty with these arguments is that they do deal with questions of taste, and so fall under the ancient and incontrovertible maxim, de gustibus non est disputandum. Artists of all varieties and some critics are given to talking as if preferences in color, in shape, in styles of music, were absolutely right and wrong, and as if they partook in some way of the nature of moral questions; but any one who has observed for even twenty years knows that what the architects of twenty years ago declared the only true style of art is now scoffed at by them and their successors as hopelessly false. The cavelike forms of the Byzantine or

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