Excerpt from "Due Process of Law" In Relation to Statutory Uncertainty and Constructive Offences: Giving Much Needed Enlightenment to Legislators, Bar and Bench

It appears, historically, that those baneful constructive crimes developed from several specific causes. A union of church and state resulted in punishing the mere constructive injury of heretical speech; the witchcraft superstition resulted in punishing the mere constructive cause of material injuries; the abridgement of the freedom of speech and of the press, also punished psychologic crimes based upon mere constructive injuries; these, with the evils of judicial legislation in defining crimes, were all Of the sources for those evils which are so often denounced under the name of constructive offenses. Our ancestors saw the evils and their practical concrete origins, but apparently did not concern themselves with the generaliza tion of the ultimate tests by which to determine the essence ofall constructive offenses. Notwithstanding this, they very effectively barred the door against any recurrence of such evils if we will but construe our constitution in the light of a truly scientific conception of the law. Such as will be formu lated hereinafter.

To obviate the recurrence to punishment of mere psycho logic or constructive injuries our forefathers prohibited the union of church and state, and the abridgement of freedom of speech and of the press. To the same end, and to preclude judicial legislation and its arbitrary tyrannies, they separated the functions of the legislative and judicial branches of our government. And then, as including all these and more be sides, they made the more general and comprehensive guar antee that no man should be deprived of life, liberty or prop erty without due process of law.

In spite of all these safeguards, and innumerable judicial denunciations of the punishment of constructive offenses, it seems to me that all about me I discover such penalties being inflicted. Without its inducing much of a protest. In seeking for an explanation, I have been led to the conclusion that it is to be found in the fact that in reducing the lawyer's calling from a profession to a business, we have put so high a pre mium upon his commercial acumen, that we have reduced the lawyer from a scientist of the law to a business executive. The result is that not one lawyer in ten thousand has a truly scientific conception of the late, or of its essential nature. As best I can I intend to point out the nature of law as I believe the few intelligent lawyers view it, and then I will endeavor to deduce therefrom, criteria for determining what are constructive offenses, especially in their relation to due process Of law.

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