tional uncertainty and form the tests by which statutes will be adjudged to be uncertain, and consequently a nullity. Thus we will still further clarify our intellect and fortify ourselves against the dangerous, liberty-destroying tendency to punish for constructive offenses. Penalizing Abstractions and Emotions.If the legislative verbiage in a criminal enactment is so involved as to make its significance doubtful, or if the offense is bunglingly described by words which symbolize and generalize only a subjective (emotional) state, associated in the minds of different persons with a variety of mere, peculiarly personal, abstractions incapable of accurate, concrete definition, such as is uniformly applicable to every conceivable case, and decisive beyond all speculative doubt, then in either event, that enactment must be declared a nullity, because "where the law is uncertain there is no law." If courts were allowed to decide which of possible or conflicting descriptions is to be made effective and which annulled, or are allowed to create the criteria of guilt, when the legislature has failed to do so, this would be judicial legislation, because the legislature having furnished no exact material for definition, the courts can only declare that to be the law which its judges, in the exercise of legislative discretion, believe ought to be the law, (instead of deriving that legislative intent exclusively by deductions made from the legislative language); and therefore read it into the statutes and dogmatically declare the judge's will to have been the legislative intent. by importing and engrafting into a criminal statute facts and phrases not actually placed there by the legislative body, is again a judicial usurpation of the power to enact criminal legislation. It follows that if those words, which alone are actually employed in the statute, do not unavoidably import such an exact definition, that every man of average intelligence, by the use of the statutory definition alone can determine with mathematical certainty, whether a particular act is a crime, (or a particular book is obscene) then the legislative body has failed to create. a criminal "law," and the court being without legislative power, has nothing to execute, but must declare the pretended statute a nullity, because, "where the law is uncertain there is no law." Statutory Words Must Symbolize Definite and Uniform Concepts.-Not quite identical with the foregoing proposition is this truism: The power of courts is limited to deductions made from the legislative words; that is, the general concept symbolized by the statutory words may be made. concrete to determine if the specific act is necessarily included in the legislative general conception, as that is exclusively revealed in the legislative language: In other words, the court cannot create such a concept where the legislative word-symbols do not stand for definite concepts. That again would be judicial legislation, not interpretation, because, "where the law is uncertain there is no law," and a law which requires this to make it effective is void. If courts can be credited with any power to construe penal statutes, the ambiguity which furnishes the occasion and subjectmatter of construction, must be found sole The judicial power over criminal statutes must be limited to a mere redeclaration, or restatement of that which, to every intelligent person, is already definitely and clearly in the word-symbols used in the criminal ly manifest from the actual words of the enactment, and from these alone. If it requires more than this to make the statute enforcible, or applicable to a particular case, then the statute is a nullity under the maxim: "Where the law is uncertain there. is no law." To do less than this, for every word used in the enactment, or to do more statutes, and not in the exercise of judicial legislative-power, under the guise of interpreting the indefinable nature of that which the legislative words in fact do symbolize. Any other rule would authorize arbitrary ex post facto judicial legislation and punishment, and where the legislative wordsymbols do not stand for definite concepts, the enactment is a nullity because "where the law is uncertain there is no law." tween deductions made from the statutory phrases and our feeling-convictions, read into statutes, made hospitable thereto because uncertain, and therefore containing little or no limitation upon the reading-in process. Under our system (especially that of the Federal Criminal law,) where legislative power is definitely placed, accurately limit To clarify our minds let this be restated in another way. When the word-symbols descriptive of the crime do not stand for definite or concrete concepts, nor any senseperceived, objective quality or activity of matter, of present or past existence, but represents to each individual, only a sub-ed, and incapable of transference to a jury, jective relation between his own purely personal experience, or the abstractions. made from them, and his purely personal emotions of approval or disapproval, then the words used to describe this subjective condition, because of its abstractions and emotional element, always making it personal and individual, must always elude accuracy of definition, and the law is void "because where the law is uncertain there is no law." Whenever we neglect the requirement that every crime must be predicated upon some actual sense-perceivable and proven material injury, or the imminent danger of such determined to be imminent by the known laws of the physical universe, and therefore accurately definable and so defined in the statute; I say, whenever we abandon these requirements then we are condemning men on mere metaphysical speculations about unrealized psychologic tendencies, or according to the personal ethical sentimentalizing, whim, caprice, malice, etc., etc., on the part of those charged with the execution of the law, and thus the judge arrogates to himself the role of legislator, and under such enactments convictions are never secured according to the uniform express authority of any statute, and all such convictions inflict punishment, for mere constructive injuries, and are an unconstitutional deprivation of liberty and property because not "due process of law." This error, I repeat, is one easily made if we are but careless about the proper different attitudes of mind which should characterize our outlook upon penal statutes and those of a civil nature which only declare and enforce natural justice; or if our vision is clouded as to the difference be star-chamber, or any other department of government, and where in addition ex post facto laws are prohibited, it is manifest that the maxim against uncertainty in statutes must be treated as an inseparable, inalienable and inherent part of that liberty of the citizens which is guaranteed by every American constitution. Without certainty before the fact, as to what is the law in relation to it, there can be no such thing as "due process of law" in any conviction. If the criminal statute is uncertain, then courts and juries become legislators after the fact, if any enforcement of the statute is had. It follows that if any American legislative body should create a crime without defining it, such enactment would be a nullity. Should an attempt be made to penalize the commission of "screw-loos-ibus," without defining the word, such a law would be unenforcible and void. It is intolerable that courts should resort to current history, and therefrom deduce meaning to be read into a penal statute whose words are devoid of all definiteness of meaning. By such a process the court might conclude that a legislature by "screwloos-ibus" intended to penalize certain unpopular practices of christian scientists. If courts may thus speculate inductively from current history, personal emotions and prejudices, and read the result into penal statutes by dogmatically asserting that this or that was the legislative intent, then we have re-established judicial despotism. In the absence of a generally known and accurately definable meaning for the word, an enforcement of the law against "screw-loosibus" would necessarily involve the exercise of legislative power, by the court or jury charged with its execution, and this enactment, by an unauthorized delegation of legislative power, must be specially made. at each trial to cover only the acts then under investigation, and must always be ex post facto. For each of these reasons law which in its practical administration necessarily involves such objections must be judicially annulled. a If a criminal law is so vague as to need interpretation, then it should be declared a nullity for uncertainty. Any other course necessarily involves on the part of the interpreting judge that as between all possible meanings he exercise his own legislative discretion and read the result into the legislative intent and phraseology. If the the words to be interpreted symbolize emotions as their only element of unification, and therefore are incapable of accurate general definition, or if the materials for a judgment as to the applicability of the law to every conceivable case, are varying in different persons, then to allow judges or juries to interpret or apply such a doubtful statute is to admit their authority to enforce an er post facto criteria of guilt; which is not public nor general, but of private origin in the court, and particular for each defendant. its These foregoing speculations suggest all that has occurred to me by way of specifying in general terms the principal sources of that outrageous remnant of absolutism, which so often results, even in our time and country, in the damnable practice of punishing men for mere constructive of fenses. The motive for these wrongs is usually a stupid moral sentimentalism and self-righteousness, and often finding roots in religious superstitions of the past. The remedy can only be found in securing judges whose intellectual development is such as to make them true scientists of the law, and who with clear intellectual insight shall combine that moral courage which will make them dare to resist the "moral" rant of a politically potent but intellectually bankrupt professional reformers. I am sure there are such judges, and that with persistence and diligence they can be found. The Standard of Certainty.-The standard of certainty and constitutionality 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 in the criteria of guilt, then it is not the law of the land, because no such judicial test of criminality 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 law-making branch of government because of the necessity for limiting and destroying arbitrariness and judicial discretion in such matThat is what we mean when we say ours is a government by laws, 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. ters. An Illustrative Application. Let us briefly apply the foregoing test of constitutionality to our various laws against "obscene indecent, filthy or disgusting" literature or art. To constitute a valid criminal law the statute under consideration must so precisely define the distinguishing characteristics of the prohibited degree of "obscenity" that guilt may be accurately some and without doubt ascertained by taking the statutory description of the penalized qualities and solely by the tests of obscenity therein prescribed determine the existence of the prescribed criminal qualities in the physical attributes inherent in the printed page. Judicial tests of "obscenity" cannot be read into the statutory words. Nor can official or judicial speculations (of a character not calculated to discover such definitely penalized physical qualities in the book) be permitted, so long as they deal only with the mere unrealized psychologic potentiality, for influencing in the future. Such mere hypothetical person. speculative psychologic tendencies are never found with certainty in any book, but are read into it, with all the uncertainty of the a priori method, as an excuse for a verdict of guilty. Even if the legislative body attempted to authorize such a procedure it would be a nullity, under the maxim, "Where the law is uncertain there is no law." Therefore such procedure cannot be "due process of law." An unrealized psychologic tendency cannot be made the differential test of criminality, although for the sake of the argument we admitted that such tendency may properly appeal to the legislative discretion, and may properly result in penal laws wherein the statutes and not the courts, specify the tests, definite and certain, by which to determine what it is that is deemed to possess the criminal degree of such dangerous tendency. It is for the legislature definitely and precisely to prescribe all the criteria of guilt by which to determine the existence of that which is prohibited, because of its immoral tendency, and no mere seeming necessity nor even by express language, and much less by vague implication derived from mere uncertainty, can it delegate to the judge or jury a legislative discretion for condemning, after the facts, according to its own arbitrary guess about the problematical psychological influence and a consequent immoral tendency of a book. For the foregoing reason all laws against "ob scene, indecent, filthy or disgusting" literature or art" are void, as not constituting "due process of law." THEODORE SCHROEDER. New York City. RAILROADS-SAFETY APPLIANCE ACT— CONSTRUCTION OF. UNITED STATES v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. United States Circuit Court of Appeals, Eighth Circuit, August 22, 1908. The safety appliance law of Congress, in the situations in which it is applicable, imposes upon a railway company an absolute duty to maintain the prescribed coupling appliances in operative condition, and is not satisfied by the exercise of reasonable care to that end. VAN DEVANTER, Circuit Judge. This writ of error challenges a judgment for the defendant in a civil action to recover a penalty for an alleged violation of the safety appliance law of Congress embodied in Act March 2, 1893, c. 196, 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), Act April 1, 1896, c. 87, 29 Stat. 85, and Act March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St: Supp. 1907, p. 885). Stripped of matters about which there is no controversy here, the violation charged consisted in hauling a car, in the usual course of transportation, when one of the couplers thereon was broken and inoperative, so that it could not be coupled or uncoupled without the necessity of a man going between the ends of the cars. The trial was to a jury, and the single question presented to us is whether or not the duty of the defendant, in respect of the maintenance of the coupler in an operative condition, was correctly stated in the portion of the court's charge, which reads: "The act, however, must necessarily have a reasonable construction. These couplings will get out of repair, and it takes time to repair them. It takes time to discover whether or not they are out of repair. It is the duty of the railway companies to use prudence and the ordinary diligence of a business man, keeping in view the purposes of the act, to keep these couplings in repair. And it is for you to determine in this case whether or not the defendant used reasonable care in ascertaining whether the car was in good repair, and then, again, whether the defendant used reasonable care in putting the coupler in good repair, after it ascertained that it was out of repair. If you find that it did use reasonable care in both instances, then it is not liable, and you should return a verdict in favor of the defendant; otherwise, you should find for the United States." * * Applying to the evidence the law as so interpreted, the jury returned a verdict for the defendant, which the court declined to disturb upon a motion for a new trial. United States v. Atchison, etc., Ry., (D. C.), 150 Fed. 442. That the interpretation of this law of Congress has been attended with difficulty is attested by many varying opinions in the reported cases, and that there are considerations tending to sustain the construction placed upon it by the District Court is attested by the opinion rendered upon the motion for a new trial and by the sustaining opinions in other cases, notably St. Louis & S. F. Ry. Co. v. Delk (C. C. A.) 158 Fed. 931; but, as we read the opinion of the Supreme Court in the more recent case of St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. -, s. c. 71 Ark. 445, 78 S. W. 220; 83 Ark. 591, 98 S. W. 959; it is now authoritatively settled that the duty of the railway company in situations where the congressional law is applicable is not that of exercising reasonable care in maintaining the prescribed safety appliance in operative condition, but is absolute. In that case the common-law rules in respect of the exercise of reasonable care by the master and of the non-liability of the master for the negligence of a fellow servant were invoked by the railway company, and were held by the court to be superseded by the statute; it being said in that connection (page 294 of 210 U. S., page 620 of 28 Sup. Ct. [52 L. Ed.,--]): "In deciding the questions thus raised, upon which the courts have differed (St. Louis & S. F. Ry. v. Delk [C. C. A.] 158 Fed. 931), we need not enter into the wilderness of cases upon the common-law duty of the employer to use reasonable care to furnish his employees reasonably safe tools, machinery, and appliances, or consider when or how far that duty may be performed by delegating it to suitable persons for whose default the employer is not responsible. In the case before us the liability of the defendant does not grow out of the common-law duty of master to servant. The Congress, not satisfied with the common law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is prescribed. It is enacted that no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard.' There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the Legis. lature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just." While the defective appliance in that case was a drawbar, and not a coupler, and the action was one to recover damages for the death of an employee, and not a penalty, we perceive nothing in these differences which distinguishes that case from this. As respects the nature of the duty placed upon the railway company, section 5, relating to drawbars, is the same as section 2, relating to couplers, and section 6, relating to the penalty, is expressed in terms which embrace every violation of any provision of the preceding sections. Indeed, a survey of the entire statute leaves no room to doubt that all violations thereof are put in the same category, and that whatever properly would be deemed a violation in an action to recover for personal injuries is to be 'deemed equally a violation in an action to recover a penalty. Because, in view of the later decision in the Taylor Case, the instruction before quoted did not embody a correct statement of the law, the judgment is reversed with a direction to grant a new trial. NOTE-Extent of Railroad's Liability for Failure to Comply with Provisions of the Federal Safety Appliance Act.-Many difficult questions have arisen concerning the proper construction of what is known as the safety appliance act, requiring railroads to equip all their rolling stock with automatic couplers and continuous brakes. Liberal Versus Strict Construction.-While this statute is penal and in derogation of the common law, it is not to be construed so strictly as to defeat the obvious intention of Congress as found in the language actually used according to its true and obvious meaning. Johnson v. Southern Pacific Co., 196 U. S. 1. Or in other words, a statute such as this, is to be construed so as to prevent the mischief and advance the remedy so far as the words fairly permit. Chicago, etc., R. R. v. Voelker, 129 Fed. 522. But in the case of United States v. Illinois Central R. R., 156 Fed. 182, the court held that the safety appliance act was a criminal statute and is to be construed as such and in suits by the government to inflict the penalty thereunder the offense must be proven beyond a reasonable doubt. It would seem, however, that in view of a recent decision of the supreme court (Taylor Case, 210 U. S. 281), this holding is erroneous. The Question of Interstate Commerce.-What cars are engaged in interstate commerce, making necessary the equipment required by statute? The Supreme Court of the United States has held that a dining-car regularly engaged in interstate traffic does not cease to be SO when waiting for the train to make the next trip. The argument here is that an "empty" or "idle" car standing in some "local" yard is not to be measured as to its interstate character by the same standards as determine the interstate commerce character of ordinary merchandise (116 U. S. 517), but a presumption of the interstate character of cars used by interstate carriers follows cars "used in moving interstate commerce, which have stopped temporarily in making its trip between two points in different |