^^Hmm UC-NRLF \ IB i ii I The March of the Constitution Annual Address before the American Bar Association AT Saratoga, August 30, igoo BY GEORGE R. PECK The March of the Constitution Annual Address before the American Bar Association AT Saratoga, August 30, igoo BY GEORGE R. PECK THE MARCH OF THE CONSTITUTION. Mr. President, and Gentlemen of the American Bar Association: For something more than a hundred years the peo- ple of the United States have enjoyed — or have had the right to enjoy — the protection of a written constitution. Its sanctions and its guaranties have been with them and over them so long that they often seem to be only natural and every-day rights, immemorially existing. But the Federal Constitution was a great creative work. It established a union of states and breathed into it the powers and attributes of nationality. It was a new departure; for until then, though there had been various leagues and federations united by written covenants, and some small local constitutions, there had been no attempt, anywhere in the world, to make a written constitution on a large scale; one that should be the supreme organic law for a great nation. What is a constitution? The question is more difficult than it seems. In a general way, however, it may be said that it is the system or body of fundamental principles, writ- ten or unwritten, under which a nation, state or body politic is formed or governed. Unwritten constitutions, like the British — that an- cient fabric which our fathers knew and revered — are evolutionary, growing from year to year, from reign to reign, and from century to century. Bagehot, writing of the English Constitution, was oppressed with the difficulties of the subject, because of this very element *^8<)00.'i of growth. ■"" There is a great difficulty in the way of a writer," he says, " who attempts to sketch a living constitution— a constitution that is in actual work and power; the difficulty is that the object is in constant change." An unwritten constitution is never com- pleted; for, silently, with the growth of years, it is modi- fied and enlarged to meet the exigencies of what Glad- stone termed " progressive history." It is an old story; on one side successive demands, on the other successive refusals, until that which was stubbornly contested finally settles down and becomes incorporated in the great catalogue of indisputable rights. No doubt the English constitution is well adapted to the English people, and they to it. They grew to- gether; the people faster than the constitution, but waiting — generally, though not always, with patience — for the incorporation of ancient and incommunicable rights into the acknowledged fundamental law of the realm. Well did Tennyson describe the process by which the British constitution was evolved, when he wrote: " A land of old and just renown Where freedom broadens slowly down From precedent to precedent." It is, perhaps, not quite accurate to speak of the British constitution as an unwritten one, for its great features were written in black and white to the end that they should never be forgotten. Such was Magna Charta, of which Professor Stubbs says that the entire body of English constitutional history is but a com- mentary upon it. Such was the Petition of Rights; the Habeas Corpus Act of 1679; the Bill of Rights, and the Act of Settlement. These are parts of the British constitution, not because they are in writing, but because they are of such fundamental character that they are presumed to inhere in the common rights of British subjects. But, gentlemen, it need not be said that the British constitution, however splendid its proportions, could not suffice when the American people proposed to em- bark upon a career of separate nationality. They had their local charters, constitutions and laws; they had the articles of confederation, and each had for itself the English common law. But all these did not, and could not, make a nation; or if you like the term better, a national government. Surely never did men face a graver responsibility than did those who un- dertook to bring order out of the chaos which then enveloped them. They proposed to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, pro- mote the general welfare, and secure the blessings of liberty to themselves and their posterity. This lofty enumeration of their purposes was, in itself, a solemn judgment upon the Articles of Confederation, which, indeed, all men knew were entirely inade- quate for gathering or holding the fruits of their strug- gle for independence. " The Confederation," in the language of that great lawyer, Horace Bin- ney, " was no more than the limited representative of other governments, and not a government it- sell. It was a league of sovereigns, but not a sover- eign." Indeed, it is not a just use of language to call that a government which had no executive, no coer- cive power, no power of energetic offense or defense, and no means of raising revenue beyond the voluntary contributions of the different states. Washington's genius was of that sane, clear-eyed quality which does not often indulge in figures of speech; but the man who never gave up hope when his armies were in the field against appalling odds said, in 1786: " It is clear to me as A, B, C, that an extension of federal powers would make us one of the most happy, wealthy, respectable and powerful nations that ever inhabited the terrestrial globe. Without them, we shall soon be everything which is the direct reverse. I predict the worst consequences from a half starved, limping government, always moving upon crutches, and tottering at every step." The Father of His Country seldom suffered his mind to be moved from its serene equipoise; and it was surely an alarming situation that could wring such lan- guage from him. And so the Convention which framed the Federal Constitution was called. It is curious to note how little was said by those who pressed upon the people and upon the state governments the necessity of a con- vention, about the paramount reason that was in their minds, which was that the country was rapidly drifting into anarchy. The governors and dignitaries who were working together to bring about a convention, the leg- islatures that passed resolutions in favor of it, and the great leaders who in private life were so influential in moulding public opinion, generally veiled the real meaning of the movement by talking about the neces- sity of a better understanding in respect to their com- mercial relations, a fair distribution of trade, the con- struction of canals and other such matters, which, though certainly important, were as nothing when compared with the immediate and imperative necessity of transforming the confederation into a government of real national vigor, possessing not only the authority which belongs to a nation, but the power to vindicate it at home and abroad. It is a hard thing to make a constitution — still harder to make a good one, or one which can be relied upon to stand the strain of actual use. Nevertheless, the delegates undertook the task, and began in a manner which augured well for the success of their efforts when on May 25th, 1787, by a unanimous vote, they chose George Washington to preside over their delib- erations. In a little less than four months the work of the convention was finished. The instrument they framed is known to all — at least its language and the general scope of its various provisions. Time has shown, and every year it becomes clearer, that Glad- stone's oft-quoted panegyric was profoundly true, when he said: "The American Constitution is the most won- derful work ever struck off at a given time by the brain and purpose of man." The men who framed it were not mere visionaries. They were, almost with- out exception, calm, thoughtful men, who thoroughly apprehended the problem they had to solve, and knew that it could not be worked out by declamation, nor by passionate discussion of the abstract rights of Man, nor by mutual congratulations that they had wrested from the Mother Country an acknowledgment of their inde- pendence. They were called upon to construct — or, rather, to reconstruct — and to that great task they bent their energies, patriotically, intelligently, and triumphantly. What order of men they were is shown in the light of a historical contrast which is full of dramatic in- terest. France was in trouble — a trouble more serious, more tragic, more frightful than any which ever be- fore confronted an existing order of things. The Revolution was upon them. Poor Louis the Six- teenth was struggHng in a blind way with the forces, political, social and intellectual, which were ultimately to bring his reign to an end and his head to the block. On the very day that George Washington was elected President of the convention, the great assembly of the Notables — the first which had met since the days of Richelieu — adjourned. They had sat two months and utterly failed to do anything which could save France. Then came another meeting of the Notables and of the States General, the National Assembly, the Constituent Assembly, and that fruitless and utterly abortive attempt to make a constitution which should save the King's crown and the people's rights. Car- lyle, in his saturnine way, observes of this depressing effort: "A constitution can be built; constitutions enough, «/^ Sieyes, but the frightful difficidty is that of getting men to come and live in them. * * * Xhe constitution, the set of laws or prescribed habit that men will live under, is the one which images their convictions — their faith as to this wondrous Universe; and what rights, duties, capabilities, they have there; which stands sanctioned, therefore, by Necessity itself; if not by a seen Deity, then by an unseen one. Other laws, whereof there are always enough ready-made, are usurpations which men do not obey, but rebel against and abolish at their earliest convenience." This language may seem extravagant and not alto- gether intellgible, but in it there is that essential grain of truth which is in all that Carlyle wrote. Their at- tempt at constitution-making failed, for it could not rally to its support any faith in its inherent strength or genuineness. It simply collapsed when put to the pitiless test of those pitiless times. Great hopes had been centered in it, hopes of deliverance, hopes of hap- pinessand hopes of peace; but Carlylesums up the result in a single sentence, which he makes the heading for one of his grandly picturesque chapters: "Constitu- tion WILL NOT MARCH," But, gentlemen, the constitution our fathers made had the marching quality in it; and our history records how it has marched in good and evil days, sometimes through perils and difficulties, sometimes seeming al- most ready to halt, but always moving forward. The people who framed it, and the people who adopted it, never considered it perfect; some of the mem- bers of the convention refused to sign it, and its adoption was fiercely opposed in many of the states. In the convention, Franklin, old and. feeble in body, but with unimpaired intellectual vigor, urged the members to sink their personal objections for the sake of the great issue at stake. "Thus I consent, sir, to this constitution," he said, "because I expect no better and because I am not sure that it is not the best. The opinions I have had of its errors I sacrifice to the public good." Though the work of the convention was not entirely satisfactory to any member, nearly all accepted it as the best then attainable, and only three refused to sign it. It was nearly three years before all the states came in under it, and when Rhode Island gave her tardy assent, the government of the Union was already in operation, George Washington was President, and the constitu- tion had begun its march. It is impossible to over-estimate the difficulties that confronted the men upon whom devolved the duty of 8 administration in the new government. They were to be guided by the constitution, but the constitution itself was not entirely clear, and many different views were held as to its meaning. It was the result of a large number of compromises between different classes of po- litical thinkers and between different localities and in- terests. As has been truly said, " Nobody liked all its provisions, and everybody feared some of them." And yet, no one can doubt that its adoption was a great, wise and patriotic act; for all experience has shown that statesmanship is not the obstinate reaching out for the unattainable, but the acceptance of the best that is within reach. It was the profound recognition of this truth that secured its adoption, without the pro- visions soon afterward adopted in the first ten amend- ments, the absence of which in the original draft caused so much opposition. The good sense of the American people accepted the work of Washington and the con- vention over which he presided, as infinitely better than the confederation, even if there were in it, to the minds of most men, obvious imperfections. Many, many great causes have been wrecked by the unyielding op- position of narrow minds, seeingonly a single point, that may or may not be correct, but which is as nothing compared with the object to be attained. Such minds there were in that day, and such there have been always, who, honestly believing that human wisdom is centered in them, cling fast to the things which are petty and insignificant, and sacrifice those which are of supreme value. But the constitution was adopted; and those who had opposed it were loud in their prophecies of failure; and those who had supported it were not with- out doubts. Its friends could only admit frankly that it was an experiment which must wait the test of time. The organization of the government under the con- stitution was one of the greatest events in human history. It was not a dramatic affair, such aswhen Na- poleon put upon his head the iron crown of Lombardy; it was grave and stately in a certain republican fashion as became a people who were establishing a nation, with a fixed, a determinate organic law, and were pro- posing to move forward within its limits. But what were its limits? What were the powers of the new gov- ernment? Were the people of the United States a na- tion with a national government, or only citizens of their respective states and of a federal union of states? These questions had not been settled in any authori- tative way. As Judge Cooley has said: "The de- cision upon them, when thus presented, might deter- mine whether the constitution was to be a bond of union or a rope of sand; for the practical construction might make it one or the other." This only means that, after all, the constitution which had been declared to be the supreme law of the land must needs be subjected to the test of construc- tion and interpretation. The almost infinite variety of questions which might become subjects of litigation would surely call upon the courts, and finally upon the court of last resort, for judicial announcements of the scope and meaning of every provision. Such is the in- firmity of human language that members of the con- vention who had voted for the constitution differed as to the meaning of its various provisions. It was plain from the first that the Supreme Court would have to grapple with great and difficult questions. The com- position of the court, and particularly the order of mind which should be possessed by the Chief Justice, 10 were matters of weighty importance, Again I quote from Judge Cooley, whose great learning, high char- acter and eminent judicial abilities have so en- deared him to our profession: " When the time is considered, and the circumstances under which the duty of authoritative construction must be entered upon, one cannot fail to be impressed that peculiar qualifications were essential in the person who should preside over the body to whom that duty would be entrusted, and who would give direction to its thought. He ought certainly to be a learned and able lawyer; but he might be this and still fail to grasp the full significance of his task. A mere lawyer might see in the Constitution nothing but an agreement of parties, to be construed by technical rules; it required a statesman to understand its full significance, as an instrument of government instinct with life and with authority." You will note, I doubt not, in the language I have quoted, the phrase " a mere lawyer." Far be it from me to say that " a mere lawyer" may not be a very well- meaning and useful man. But he never was and never will be a great judge. In this country, every judge, state and federal, is, or may be, called upon to decide questions arising under constitutions, and such ques- tions require historical knowledge, an insight into the meaning of organic laws, of the duties and obligations of citizenship, and, finally, of the great purposes of a constitutional and an institutional government. John Jay, our first Chief Justice, was lawyer, statesman and diplomat, a student of literature, and a man of unbending integrity and spotless character. To his hands and the hands of his associates the new and untried constitution was entrusted, It is interesting to read the proceedings of the court in those first days, when questions of practice and procedure were con- 11 stantly coming up and receiving the careful considera- tion of the court, and were about the only questions before it. There was little business in the eleven years which preceded the appointment of Marshall, and only six constitutional cases were decided. In one. Ware v. Hylton, reported in 3rd Dallas, John Marshall was counsel for defendant in error, and was badly beaten, all the judges save Iredell be- ing against him — and Iredell against him on part of the case. This was at the February Term, 1796. Five years later, on F'ebruary 4, 1801, John Marshall, him- self, took his seat as Chief Justice of the Court which had turned a deaf ear to the only argument he had made before it. Thus far the constitution had marched; but it must be admitted its pathway had not been a smooth one. The people had already learned that the Supreme Court was a body claiming enormous powers — powers that thousands of good men viewed with sincere alarm. F"rom the first the country had been divided on the question whether there should be a strong national government, operating directly upon the people, or a mere agency for certain purposes while the vigor of effective government should remain in the several states. In the convention and before the people there had been earnest, sometimes angry, dis- cussion of this question. Those who had hoped that it would be settled by the language of the constitution itself were doomed to disappointment, for, studying it sentence by sentence and line by line, it was evident that the argument was not closed. The question was simply changed from: " What government is best?" to " What government has the constitution actually given us? " 12 The Supreme Court has been eloquently called " the living voice of the constitution," and from its organiza- tion it has courageously assumed the right to speak the final word as to its meaning, and as to the rights it grants and the obligations it imposes. We are so much accustomed to connecting the name of Marshall with the establishment of constitutional principles that we have hardly done justice to the court as it stood before his appointment. They were learned men, they were honest men, and they were — which is scarcely less important — firm and unwavering in the performance of every judicial duty. When Chisholm v. The State of Georgia was brought before them, the country was aflame with excitement. Mingled feelings of astonishment and indignation filled men's minds, at the thought of bringing a sovereign state into court like an ordinary debtor. The opinion of Justice Wilson — himself one of the signers of the con- stitution — is a quaint and curious piece of judicial literature. " This is a case of uncommon magnitude," said Justice Wilson. " One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so re- spectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others more important still; and may, perhaps, be ultimately resolved into one no less radical than this — 'Do the people of the U^iited States form a Nation?' " This grim question was destined to rise from time to time until finally answered on the battlefield. Judge Wilson gave his own answer toward the close of his opinion in these words: " Whoever considers, in a combined and comprehen- 13 sive view, the general texture of the constitution, will be satisfied that the people of the United States in- tended to form themselves into a nation for national purposes. They instituted, for such purposes, a na- tional government, complete in all its parts, with pow- ers legislative, executive and judiciary; and in all those powers extending over the whole nation." When it became known that the court had held the State of Georgia to be suable by a private citizen, an overwhelming demand went up for an amendment to the constitution, and so the eleventh amendment was straightway adopted. A large portion of the people thought the decision in Chisholmv. Georgia wrong, and it must be admitted that the question involved was a very doubtful one, and to this day lawyers differ as to its correctness. But the adoption of the eleventh amendment removed the question from discussion, ex- cept by historical students. When Marshall took his seat it was plain enough to all that he would have many uncomfortable experiences and much rancorous criticism. Though he was of a singularly calm and equable temperament, no one in the station to which he was called could expect to escape the hostility of faction. He was a Federalist; and Jefferson, whose administration came on less than a month after Marshall's appointment, was a Re- publican. These two great men, both Virginians, both patriots, both sincerely devoted to the principles of constitutional liberty as they understood them, enter- tained for each other a dislike almost amounting to hatred. Each considered the other a dangerous enemy to the liberties of his country, and neither concealed this opinion from his intimate friends. The result was bitter hostility — more or less hidden by the proprie- ties which rested upon each — but still well understood by their friends and partisans. 14 It is not worth while, now, to judge between them, for the names of both are cherished by all their coun- trymen. But I believe the settled opinion of good law- yers and of statesmen whose minds have the conserva- tive strength, which is the real test of statesmanship, is that, on this fundamental question, Marshall took the broader and the safer view. He be- lieved, and avowed his belief, in a strong govern- ment; and so also did his adversaries. But they believed the strength should be in the separate parts, while he believed it should be in the sum of all the parts — the Nation. Our subsequent history has told how vain it was to rely on judicial decisions to settle such a question. What the language of the constitu- tion had left open to discussion, the people continued to discuss. It is not fair to say that the advocates of State rights, so called, had nothing on which to base their claims, nor that they were perversely wrong who believed the federal government was but a mere con- trivance to enable the states to get along comfortably with foreign nations and with each other — so long as each state could have its way. Of course, as we see it now, the scheme of a constitutional government for the Union was a far more comprehensive scheme than that. It was, indeed, the great conception of John Milton: " — not * * * many sovereignties united in one Commonwealth, but many commonwealths under one united and intrusted sovereignty." When Marshall came to the bench, he had to face the question which Judge Wilson had asked in Chisholm V. Georgia, — '* Is the United States a Nation ?" And he answered it, in those monumental opinions which preserve his memory and will preserve it forever. 15 John Marshall was the simplest of men in his daily life; a Virginia gentleman, content to move in the path of duty, but with the iron firmness which is much more common in gentle natures than is gen- erally supposed. Because he was a Federalist, it was often said that he was the advocate of an aristocratic government; but it is hard to see how one can be charged with favoring an aristocratic government who simply believed that there ought to be a direct connection between that government and all its citi- zens, with no intermediary between them. The phil- osophical student has not failed to see that it was not the believer in the supremacy of the nation within its accorded limits, who favored an aristocracy, but the champion of a system which would make all rights de- pendent upon the permission of an assumed sov- ereignty, local but imperious. The first case in which Marshall was called upon to go deeply into the theory of our government is Mar- bury V. Aladhon, a case familiar to our profession as a great landmark of constitutional law. Though the writ of mandamus was denied, the Chief Justice showed by a wealth of argument which has never since been ques- tioned that the relator was entitled to the writ, — though not from the Supreme Court. The great value oF the decision lies not so much in the conclusive demonstration that all officers of the government are, in the performance of their ministerial duties, bound by the law, and subject to the courts, as in the luminous and convincing discussion of the question: " What is the duty of the judiciary when a statute not authorized by the constitution is asserted as the basis of a legal right?" If Marshall had hesitated or flinched, if he had par- 16 Ic^yed with duly or i()ni|)i()inis('(l with coiiscciiiciices, our (experiment, ol a const it lit ioiial government would have been a faihirc* so j^rcat as to have carried deslruc- tion with it to all such experiments for generations to come. It seems (;asy now fora jndtj^e to hav(^ walk(;(l in so |)lain a |)alh. Hiit we should not for decided at the February Term, i8iq. At the same term the decision in the celebrated Dartmouth College case was pronounced. More than any other case it has entered into the discussion of questions involving corporate rights, and their protection from legislative im- pairment. The court had already held in Fletcher V. Peck, 6 Cranch, 87, that a legislative grant is a contract and entitled to the protection of the con- stitution from a subsequent legislative act annulling the grant. But the grant involved in Fletcher v. Peck was one of lands made by the legislature of Georgia in 1795, and, therefore, after the adoption of the federal constitution; while in the Dartmouth College case, it was of a corporate charter granted by King George the Third in 1769. It is a matter of familiar legal history that the old charter was held to be a contract, and that the legislature of New Hampshire could not amend or materially alter it without violating the con- stitution. It has sometimes been thought, both within and without the legal profession, that the court pushed the doctrine of the inviolability of contracts from legislative impairment too far in this case. But 21 it seems to me the decision was not only sound, in law, but useful and salutary in its effects. It is not so frequently cited now as formerly, because almost all statutes for the organization of corporations contain provisions authorizing the legislature to alter or amend, and so the right to do so becomes a part of the contract itself. As I have already said, and as you know from your familiarity with the history of the times, the subject of commerce, and the commercial relations of the differ- ent states, was one of the great inducing motives that led to the adoption of the constitution. It was not the only one, and perhaps not the principal one, but it was a very powerful one. Trade and traffic, buying and selling, exchanging commodities and carrying on the extensive operations which are incident to modern civilization, were in men's minds then as they are now, and will be always. Before the constitution, Maryland, Delaware and Virginia; New York, New Jersey and Pennsylvania wrangled and disputed over duties, re- strictions and regulations calculated to advance the in- terests of one against the others, for selfishness has always been a largely controlling motive of human action. When the framers of the constitution inserted the provision vesting in Congress the power to regulate commerce among the several states, they stamped upon their work the indubitable evidence of practical wis- dom. But what is commerce? What is regulation.'' These questions have followed the path of our na- tional progress. It has not always been easy to answer them, and they have left in their wake many un- settled and indeterminate inquries. The present Inter- state Commerce Law is an attempt to solve some of 22 them, and is certainly a great forward step in the de- velopment of the constitution. I believe, and I think the belief is shared by our profession and by the business interests of the country, that the theory of the act is right, and that the time will come when the great purpose of the constitution in respect to commerce will be attained. It takes time to build up the structure of legal right upon the basis of acknowledged principles, and we must remember that successful legislation seldom precedes the acquiesence of those most largely affected by it. Gibbons V. Ogden, decided in 1824, is the great source to which all must go who would understand the scope and import of the commerce clause of the constitution. Again, the great Chief Justice had to face the preten- sions of a sovereign state, and to strike down one of its statutes. There is a certain solemnity in all of Marshall's constitutional decisions; a solemnity becom- ing a great magistrate with such duties to perform. No judge ever had to walk in a harder path. But he never faltered, and his judgments have stood every test, as the firm and convincing pronouncements of the law. Gibbons v. Ogden upheld the exclusive power of Con- gress to regulate commerce among the states, wherever it has legislated upon the subject. The argument in the case dealt largely with the question whether navigation is commerce, but Marshall, answering the question in the affirmative, added in that conclusive way which no other judge ever equaled or approached: "Commerce undoubtedly is traffic, but it is something more;zV is in- tercourse!' It would almost seem that he was prophet as well as judge, for in that sentence he unconsciously foretold the railroad, the telegraph, the telephone and 23 all the wonderful appliances by which science com- pels nature to be the servant and minister of man. In this great case Marshall rendered a service to his country in laying down the true principle of con- struction, as great, perhaps greater, than in construing the commerce clause which was before the court. He vindicated the constitution as a working instrument of government. He made it, if I may say so, what in modern litigation we call " a going concern." In all Marshall's opinions I recall nothing more filled with the wisdom of the hour nor more useful to the generations that were coming on, than his fine disposition of the argument that the constitution must be strictly construed. "What do gentlemen mean," he asks, " by a strict construction ? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the con- stitution is to be expounded." There is something very noble and elevating in the 24 discussion towards the end of the opinion, of the powers of the states and of the general government where he speaks of "powerful and ingenious minds," who would explain away the constitution " and leave it a mag- nificent structure, indeed, to look at, but totally unfit for use." Gentlemen. John Marshall was not "a mere lawyer." His judicial career and his earthly career ended July 6, 1835. He had been Chief Justice thirty-four years, and it is only true of him to say that, " take him for all in all," he was the greatest judge that ever lived. By the com- mon and unfettered judgment of the bar, by the unani- mous voice of statesmen, jurists and scholars, he was the oracle of our constitutional law, the interpreter, the expounder, and in a certain sense the maker of the constitution. True, he was not a member of the convention that framed it, but he was a member of the Virginia convention that passed upon and adopted it, and when he came to the bench he took up as the cases came before him the great questions presented and solved them unerringly and, as we all know, con- clusively. During all his long incumbency of the chief judicial office there never was a day that the constitu- tion did not move forward, as a constitution should, to meet the crowding exigencies of human affairs. And so, gentlemen, the constitution marched; and without exaggeration it maybe truly declared that John Marshall was its guide, its light and its defender. Our profession looks upon him with a somewhat idolatrous feeling, but I do not think it is excessive. When we consider what might have been our fate if another and not he had occupied that great seat, we may well be- 25 lieve that Providence watched over the Republic. He interpreted the constitution, but he interpreted it in the comprehensive way which made it a thing of life in- stead of death; a chart of government instead of a collection of meaningless phrases. Only two Amer- icans are better entitled to the gratitude of our peo- ple, — George Washington and Abraham Lincoln. When Marshall died our government under the con- stitution was less than half a century old. He had been Chief Justice thirty-four years, and had laid the foundation of our constitutional law, in that massive and enduring way which was his wont. His judicial temperament was such that it was not possible for him to see any question simply on its technical side. He had, in its fullest measure, that " large discourse" of which Shakespeare speaks, " looking before and after." Since his day many constitutional questions have arisen, are still arising, and, we may be sure, will continue to face us with the flight of years. But the hard ones came in that formative period, when the path was dim and untrodden. If you will read the subsequent reports of the great court over which he so long presided you will find few constitutional decisions that do not draw from his opinions as from a peren- nial fountain. An eminent lawyer, Judge Simeon E. Baldwin, in his Presidential address before this As- sociation for 189T, said, and at that moment John Marshall must have been, consciously or unconsciously, in his memory: " Constitutions are nothing unless enforced in the spirit in which they were conceived. In them, more than in any other thing of human foundation, ' the letter killeth.' " Surely a constitution for a great Nation, a Nation whose founders knew that 26 it would, and intended that it should, grow, must be construed with a view to the Nation's needs, and its possibilities, Roger B. Taney, who succeeded Marshall, was a man eminently fitted for that exalted position. Learned, able, patient, honest, he filled the ideal of a great judge. But, like Marshall, he had a temperament; like Mar- shall, he belonged to a school. Strict construction*was as dear to him as it was odious to his predecessor. But, gentlemen, our profession can never fail to acknowledge the services of Chief Justice Taney upon the bench, the sincerity of purpose, and steadfast devotion to his sense of duty, which always character- ized him. In all frankness, let me say for myself— and I believe for my profession — I wish there had been no Dred Scott case. It attracted so much attention; it touched the minds and souls of men so deeply that Taney's name is inseparably connected with it. And yet, who of us is prepared to maintain that, apart from the admitted obiter \n the opinions, the decision was wrong, as the law then stood? Let us be just. Judge Taney was sustained by the entire court, save two, McLean and Curtis. It matters little now who was right and who was wrong; for the issue went to a higher court and was settled forever. It cannot be said of Chief Justice Taney that he did not, in his lofty estimate of judicial duty, uphold with a firm and equal hand the rights of litigants, high and low. In the License Cases Judge Taney sustained the re- served powers of the States in their proper field of po- lice regulation. In Charles River Bridge v. Warren Bridge, he applied his life-long principle of strict con- 27 stniction to grants of public franchises to private cor- porations. Here he found most appropriate occasion for the application of this principle, and in so doing established, as the permanent doctrine of the Supreme Court, the ancient rule of the common law, that all public grants must be strictly construed against the grantee. This doctrine has been most beneficial to the country. Denying the right of any corporation to enjoy a mo- nopoly in an avenue of transportation and travel, he stimulated, and to a large degree made possible, that great industrial development upon which the country was then entering. Unfortunately for a calm and entirely just estimate of his judicial career, his lot was cast in a period of angry political discussion, and anxious solicitude for the fate of our institutions. As Chief Justice, it came to him in the order of duty to administer the oath of office to Abraham Lincoln as President of the United States. When these two men, each with a different image ot our Government in his mind, stood face to face on the east porch of the Capitol, what strange emotions, memories and hopes crowded upon them. The venerable Chief Justice, bowed with the weight of years, and the sad feeling that a new and stormy period was opening before the country, could only perform the duty of his office, and silently repress his gloomy forebodings. The new President, filled with a solemn sense of the future, appealed to all his country- men, North and South, in words which will live for- ever: " We are not enemies, but friends; we must not be enemies; if passion may have strained, it must not break our bonds of affection." This sad and tender 28 language did not conceal, and was not intended to conceal, the inflexible purpose of the man. He had already said in that same inaugural, and for four weary years he abided by it, — " I hold that, in contemplation of universal law and of the constitution, the Union of these States is perpetual." It is not too much to say that in that moment, the voice of John Marshall spoke again. I need not, on such a theme, recount the story of the war. During that memorable conflict the courts, wher- ever they could, continued to exercise their ordinary jurisdiction. And if questions sometimes arose which brought the unwelcome answer, " Inter arma silent leges,'' no one now doubts that the essential principles of the constitution retained their vigor. The three great amendments that followed the war, and which made freedom and equality organic in our law, were the logical and irresistible conclusion of that great struggle. The fourteenth amendment, perhaps in a larger sense than its framers realized, and certainly more than the Supreme Court at first recognized, is the great anchorage for the rights which essentially belong to citizenship in a free government. By the fifth amend- ment the people had protected these rights against arbitrary encroachments by the general government; while by the fourteenth amendment, they in like manner protected them against the arbitrary exercise of power by any of the states. Taking them together, they are to us what Magna Charta was and is to the English people; yet with this distinction, that under our system fundamental rights are not mere abstractions. Here, constitutions mean what they say; and every citizen may appeal to the courts for their vindication. 29 When these guaranties were thus made uniform in respect to both national and state legislation, the con- stitution took a forward step; and w^hen in 1886* the Supreme Court decided that these guaranties extended to every person, natural or artificial, another great advance was made. Notwithstanding the able opinion of that great jurist, Mr. Justice Miller, in the Slaughter House Cases, — and although the profession quite generally believe the main question involved, which was one of police power, was correctly decided — the large scope of the four- teenth amendment, maintained in the dissenting opin- ions of Justices Field, Bradley and Swayne, and con- curred in by Chief Justice Chase, has since become the established view of the court in numerous decisions. In none of them, probably, has the doctrine been more convincingly expressed than by Mr. Justice Harlan in the great case of Smyth v. Ames. Speaking of the fourteenth amendment he there said: " In view of the adjudications these principles must be regarded as settled: " I. A railroad corporation is a person within the meaning of the fourteenth amendment declaring that no state shall deprive any person of property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. " 2. A state enactment, or regulations made under the authority of a state enactment, establishing rates for the transportation of persons or property by rail- road that will not admit of the carrier earning such compensation as under all the circumstances is just to it and to the public, would deprive such carrier of its property without due process of law and deny to it the equal protection of the laws, and would, therefore, be repugnant to the fourteenth amendment of the Con- stitution of the United States. Santa Clara Co. v. Southern Pac. Railroad, 118 U. S., 394. 30 " 3- While rates for the transportation of persons and property within the limits of a state are primarily for its determination, the question whether they are so unreasonably low as to deprive the carrier of its prop- erty without such compensation as the constitution se- cures, and, therefore, without due process of law, can- not be so conclusively determined by the legislature of the state or by regulations adopted under its author- ity, that the matter may not become the subject of judicial inquiry." It has been supposed by some students of our national history that a written constitution is an inert mass of tabulated provisions. The supposition is not correct; for the national constitution, under the guid- ance of our great court of last resort, has grown and developed, not, perhaps, like an unwritten one, but still keeping abreast with the demands of " progressive history." This does not mean that a written consti- tution grows by being violated whenever its provisions stand in the way of national progress; but it does mean that our constitution was, by the enlightened foresight of its framers, made to be an intelligent guide and chart, and not a mere list of obstacles. The American people in constructing their constitutions, both national and for the states, cherished the great features of the English constitution, of which they, as well as the English, were heirs, and so their work has ever been preservative of the old, as well as creative of the new. In the complex workings of modern civilization, large fortunes have been rapidly accumulated, and great wealth has been centered in few hands. People naturally ask: Would a just order of social and economic relations permit this to happen? Whatever the true answer may be to this inquiry, no one 31 acquainted with the general history of the human race, or with our own history as a Nation, can doubt that the well-being of our people depends upon maintaining sacredly the equal rights guaranteed by the fifth and fourteenth amendments to rich and poor alike. Property, because it is most easy of attack, is most frequently attacked. This is no new illustration of human nature, but is a part of the phenomena of all history. When the Centennial Anniversary of the Supreme Court was celebrated in New York, the venerable Justice Field said, with the prophetic dignity which became that solemn occasion: "As population and wealth increase — as the inequal- ities in'the conditions of men become more and more marked and disturbing — as the enormous aggregation of wealth possessed by some corporations excites un- easiness lest their power should become dominating in the legislation of the country, and thus encroach upon the rights or crush out the business of individuals of small means— as population in some quarters presses upon the means of subsistence, and angry menaces against order find vent in loud denunciations — it be- comes more and more the imperative duty of the court to enforce with a firm hand every guaranty of the Constitution. Every decision weakening their restrain- ing power is a blow to the peace of society and to its progress and improvement. It should never be for- gotten that protection to property and to persons can- not be separated. Where property is insecure, the rights of persons are unsafe. Protection to the one goes with protection to the other; and there can be neither prosperity nor progress where either is uncer- tam. In English history, as in our own, most of the great questions which mark the progress of legal rights have grown out of small property disputes. Men 32 have invariably been more ready to engage in litiga- tion over concrete questions than to go to law about ab- stract principles. The historic assertions of personal privilege which have come down to us from Hampden's day have generally risen from some slight encroach- ment upon the property or rights of a single in- dividual. It was but an injunction suit brought by the State of Texas against private individuals claiming ownership of certain United States bonds that gave us the great pronouncement upon the nature of our government ; which, all things considered, is perhaps the most valu- able judicial utterance ever made under our constitu- tion. "The constitution, in all its provisions." said Chief Justice Chase, " looks to an indestructible union, composed of indestructible states." The indestru*ctibility of the states, when thoughtfully considered, is the surest guaranty of an indestructible union. Throughout our constitutional history we have carried on the most complex system of government known to man; — and to-day I venture to assert that, notwithstanding its complexity, it has been so ad- ministered as to combine more of liberty to the citizen with more of power in the nation than any other con- stitutional government. The states, unimpaired in their just powers, carry on the due operations of local administration unfettered; — and the union^which is a union both of people and of states — has long since passed the time when any court or any statesman may renew Justice Wilson's inquiry: — " Do the people of THE United States form a Nation?" 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. Tliis book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. f^l^CD LD "'W«i2l958 pEAP ~ General Library LD 21A-50r«,-8,'57 University of California (C8481sl0)476B Berkeley Gaylamount Pamphlet Binder G«ylord Bros., Inc. Stockton, Calif. TM- Reg. U.S. Pat. Off. YD0333yi «.)8960,3 ^kf S ^ ^4 THE UNIVERSITY OF CALIFORNIA LIBRARY 'fl