by a minority of the Supreme Court who believe it to be constitutional? It is often said, when a decision of the Court is by a vote of five to four, that one judge determines the result. This is more striking than accurate, for the actual decision is that of five judges. But if the concurrence of six judges were required, then if there were four judges of a contrary opinion, they would in effect out-vote the five and it could still be said that the vote of one judge had made the result possible, as otherwise there might have been the required six votes. If seven votes were necessary to hold a statute invalid, then three judges would outweigh six on a judicial question, and still a change of one vote might be determinative.

It is urged that as legislation should be held to be repugnant to the Constitution only in clear cases, and as this is recognized as a principle of decision, a division in the Court should be regarded as enough to show reasonable doubt. Plainly that suggestion cannot be carried to its logical limit. If it were, the action of a single judge in the court of first instance, holding an act to be constitutional would be conclusive, for is he not a reasonable man? Or, if that judge decided the act to be unconstitutional, and in the Circuit Court of Appeals two judges agreed with him, but the third dissented, should not the majority bow to his dissent as sufficiently indicating doubt? We have similar considerations with respect to State court decisions. Why have any review by the Supreme Court in such cases, unless the courts under review, whether Federal or State, should hold legislation to be unconstitutional? And, then, on the view suggested, their unanimous opinions to this effect might be overthrown, and the legislation still be sustained, if a minority of the Supreme Court considered it to be valid, as a vote of the majority of the Supreme Court would not be sufficient to render a contrary decision.

In truth, judges will have their convictions, and it is of the essence of the appropriate exercise of judicial power that these should be independently expressed. Divisions on close questions cannot be prevented. The unpopularity of a decision against the constitutionality of a legislative act is sometimes too readily assumed by those who propose changes. It has already been observed that our history shows serious complaint in certain important cases where acts of Congress have been sustained. If the object is to create public contentment with the result, it would not likely be obtained if a statute highly obnoxious to many, as interfering with cherished liberty of action, were made effective by a minority of the highest court. It must also be remembered that we are considering the exercise of the judicial power which the Constitution places in one Supreme Court and the lower Federal courts. The Supreme Court has appellate jurisdiction with such exceptions and under such regulations as are made by Congress. But making allowance for such exceptions and giving effect to such regulations as Congress may appropriately provide with respect to the cases in which the appellate jurisdiction shall be exercised, when the appellate jurisdiction attaches to a case the judicial power extends to it, and it is doubtful to say the least if Congress would have the constitutional authority to fetter the exercise of the judicial power by giving the control of it to the minority of the Court. In a small group, the action of any one may be of decisive effect, no matter what rule may be adopted, and the method that best accords with our traditions and is most likely to have public favor in the long run is that of decision by the majority.

In our system, the individual finds security in his rights because he is entitled to the protection of tribunals that represent the capacity of the community for impartial

judgment as free as possible from the passion of the moment and the demands of interest or prejudice. The ends of social justice are achieved through a process by which every step is examined in the light of the principles which are our inheritance as a free people. The spirit of the work of the Supreme Court permeates every legislative assembly and every important discussion of reforms by legislative action. We largely subject our political thinking to the conception of law, not as an arbitrary edict of power, but as governed by the fundamental conceptions of justice. No one is above the law. The officer of government, the State itself, is subject to the fundamental law, that the humblest may invoke. Our relations to each other, to the society of which we are a part, to the governments, Federal and State, which are the organs of that society, come to the judicial test, as far removed from the intrusions of artifice, selfishness and caprice as any test can be. The Supreme Court is the embodiment of this conception of our law, the exemplar of its application, and the assurance that in the complexities of an extraordinarily expanded life, we have not forgotten the ancient faith by which we have pledged ourselves to render each one his due, a faith which alone makes it possible to look to the coming years with confidence as well as hope.

CHAPTER XI

CONSERVATION OF NATURAL RESOURCES

44. DECLARATION OF THE CONFERENCE OF GOVERNORS, 1908

In 1908 President Roosevelt summoned to Washington a conference of all the Governors of the States and territories for the purpose of discussing the problem of conserving our natural resources. After having discussed the question for several days and in response to the vital needs of the nation, the conference made a declaration of principles which is given below. As a result of the conference much impetus was given to the conservation movement with the result that a more economical use of our natural resources is now being made.

We, the Governors of the States and Territories of the United States of America, in conference assembled, do hereby declare the conviction that the great prosperity of the country rests upon the abundant resources of the land chosen by our forefathers for their homes and where they laid the foundation of this great nation.

We look upon these resources as a heritage to be made use of in establishing and promoting the comfort, prosperity and happiness of the American people, but not to be wasted, deteriorated or needlessly destroyed.

We agree that our country's future is involved in this: that the great natural resources supply the material basis upon which our civilization must continue to depend and upon which the perpetuity of the nation itself rests.

We agree, in the light of facts brought to our knowledge

and from information received from sources which we cannot doubt, that this material basis is threatened with exhaustion. Even as each succeeding generation from the birth of the nation has performed its part in promoting the progress and development of the republic, so do we in this generation recognize it as a high duty to perform our part, and this duty in large degree lies in the adoption of measures for the conservation of the natural wealth of the country.

We declare our firm conviction that this conservation of our natural resources is a subject of transcendent importance which should engage unremittingly the attention of the nation, the States and the people in earnest coöperation. These natural resources include the land on which we live and which yields our food; the waters, which fertilize the soil, supply power and form great avenues of commerce; the forests, which yield the materials for our homes, prevent erosion of the soil and conserve the navigation and other uses of our streams, and minerals, which form the basis of our industrial life and supply us with heat, light and power.

We agree that the land should be so used that erosion and soil wash should cease, that there should be reclamation of arid and semi-arid regions by means of irrigation and of swamp and overflowed regions by means of drainage; that the waters should be so conserved and used as to promote navigation, to enable the arid regions to be reclaimed by irrigation and to develop power in the interests of the people; that the forests, which regulate our rivers, support our industries and promote the fertility and productiveness of the soil, should be preserved and perpetuated; that the minerals found so abundantly beneath the surface, should be so used as to prolong their utility, that the beauty, healthfulness and habitability of