truth has vaguely been recognized in one way and another. Thus, even when Massa chusetts was overwhelmingly Republican, it used to be felt by Republicans in general that there ought to be at least one Dem ocrat on the Supreme Bench of the State. Partly, no doubt, this was due to a just con viction that Democratic lawyers ought not to be excluded absolutely from high judicial office, but partly also it arose from a per ception that the Democrats had on some fundamental points a view of things differ ent from the Republican view. Few people would deny, for example, that even to this day, and, of course, with many exceptions and qualifications, Democrats have a greater regard for individual rights than Republi cans have. It is, so far as one can discrim inate between two great heterogeneous par ties, a Republican characteristic to prefer the interests of the community to the rights of an individual, whereas it is a Democratic characteristic to take the opposite view. An important case which turned directly upon this point was decided a few years ago by the Supreme Court of the United States. The question was whether in a suit based upon a personal injury the plaintiff could be compelled to expose in court the wounded arm or leg, in order that it might be in spected by counsel and by witnesses for the defendant. The Supreme Court decided that no such exposure could be compelled without violating those individual rights which are held sacred under our law. Two judges dissented, and in the course of their dissent ing opinion they made the following re mark: — " It is said, there is a sanctity of the person which may not be outraged. We believe that truth and justice are more sacred than any personal consideration." * This means, I take it, that the establishment of truth and justice is more sacred than any personal consideration. So understood, the proposition is a strong one — it puts the case of the dissenting judges as strongly as
- 141 U. S. 250.
it could be put; and yet a stickler for indi vidual rights might well take issue upon this very proposition. There can be no doubt, it seems to me, that an English court would have taken the same view which our court took. In Sparta, on the other hand, the position of the dissenting judges would have seemed the only possible one. The truth is that this case, simple as it might appear at first sight, raises some fundamental questions as to the nature of man and the in dividual's relation to the State. The point at issue is not really a legal point, but a philo sophical point, and it must be decided ac cording to the preconceptions, the opinions, the bringing up, the idiosyncrasies of the judges concerned. Many judicial decisions turn ultimately upon political or politico-economical con siderations, and although in such cases the conclusion may be put formally upon tech nical grounds, and deduced in regular fash ion, from legal precedents, yet in fact it is derived from the fundamental notions of government and public policy which are held by the judges. Thus if a certain court is prepossessed against state or municipal ownership, it will probably be able con scientiously to decide that a municipal coal yard is an illegal thing; whereas, if its political principles were different, it would probably give a different twist to the con stitutional argument, and arrive at the oppo site conclusion. This aspect of judicial de cisions has been set forth in an able manner by Judge Holmes of the Supreme Court of Massachusetts. Men do not approach the decision of a legal question with pas sively receptive minds. If this were so, ar gument would be far more effective than it is in producing unanimity of opinion. There is a striking passage in Cardinal Newman's "Grammar of Assent," where he shows how the utterly different conclusions reached by the different students of early Greek history are due to the various preconcep tions with which the several historians
