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 62d Congress) SENATE (Document 
 
 2d Session \ \ No. 122 
 
 THE CONSTITUTION AND ITS MAKERS 
 
 AN ADDRESS 
 
 DELIVERED BEFORE 
 
 THE LITERARY AND HISTORICAL ASSOCIATION 
 OF NORTH CAROLINA 
 
 AT 
 
 RALEIGH, N. 0., NOVEMBER 28, 1911 
 
 BY 
 
 HENRY CABOT LODGE 
 
 DNiypjftSITYOirCAL] 
 
 AT LOS ANGELES 
 
 DEC 20 1933 
 
 LlBRAR 
 
 PRESENTED BY MR. OVERMAN 
 December 5, 1911. — Ordered to be printed 
 
 WASHINGTON 
 1911

 
 
 
 THE CONSTITUTION AND ITS MAKERS. 
 
 Mr. Lodge said: 
 
 Before this society and on such an occasion to speak on any subject 
 not connected with the history of our common country would hardly 
 be possible and would certainly not be fitting. I have, therefore, 
 chosen a subject which touches the history of the Un ; ted States at 
 every point. I shall try to set before you some of the results of a 
 great work in which your State and mine alike took part a century 
 and a quarter ago and which possesses an interest and an importance 
 as deep and as living to-day as at the moment of its inception. I 
 shall touch upon some present questions, but I shall speak without 
 the remotest reference to politics or parties, for my subject tran- 
 scends both. I shall speak as a student of our history with reverence 
 for the past and with a profound faith in the future. In a word, I 
 shall speak simply as an American who loves his country "now and 
 forever, one and inseparable." 
 
 A little less than twenty-five years ago great crowds thronged the 
 streets of Philadelphia. Men and women were there from all parts 
 of the United States; the city was resplendent with waving flags 
 and brilliant with all the decorations which ingenuity could suggest, 
 while the mights were made bright by illuminations which shone on 
 every building. Great processions passed along the streets, headed 
 by troops from the thirteen original States, marching in unusual 
 order, with Delaware at the head, because that little State had been 
 the first to accept the great instrument of government which now, 
 having attained its hundredth year, was celebrated in the city of its 
 birth. Behind the famous hall where independence was declared an 
 immense crowd listened to commemorative speakers, and the Presi- 
 dent of the United States, a Democrat, honored the occasion with 
 his presence and his words. 
 
 Two years later, in 1889, the same scenes were repeated in New 
 York. Again the cannon thundered and again flags waved above 
 the heads of the multitude gathered in the streets, through which 
 marched a long procession, both military and civil, headed as before 
 by the representatives of the original thirteen States. Again, at a 
 great banquet, addresses were delivered and once more the President 
 of the United States, this time a Republican, honored the occasion 
 by his presence, and in the name of all the people of the country 
 praised the great work of our ancestors. 
 
 In Philadelphia we celebrated the one hundredth anniversary of the 
 formation of the Constitution of the United States. In New York 
 we commemorated the one hundredth anniversary of the inaugura- 
 tion of the Government which that Constitution had brought into 
 being. Through all the rejoicings of those days, in every spoken and 
 in every written word, ran one unbroken strain of praise for the 
 great instrument and of gratitude to the men who, in the exercise of 
 
 3 
 
 
 a 448783 
 
 5*i 
 
 ^ 

 
 4 THE CONSTITUTION AND ITS MAKERS. 
 
 the highest wisdom, had framed it and brought it forth. All men 
 recalled that it had made a nation from thirteen jarring States; 
 that it had proved in its interpretation flexible to meet new conditions 
 and strong to withstand injustice and wrong; that it had survived 
 the shock of civil war; and that under it liberty had been pro- 
 tected and order maintained. The paean of praiso rose up from 
 all parts of tins broad land unmarred by a discordant note. Every- 
 one agreed with Gladstone's famous declaration, that the Consti- 
 tution of the United States was the greatest political instrument 
 ever struck off on a single occasion by the minds of men. We 
 seemed, indeed, by all wethen said and did to justify those foreign 
 critics who reproached us for our blind reverence for our Constitu- 
 tion and our almost superstitious belief in its absolute wisdom and 
 unexampled perfections. 
 
 Those celebrations of the framing of the Constitution and of the 
 inauguration of the Government have been almost forgotten. More 
 than twenty vears have come and gone since the cheers of the crowds 
 which then filled the streets of New York and Philadelphia— since 
 the reverberations of the cannon and the eloquent voices of the 
 orators died away into silence. And with those years, not very many 
 aftor all, a change seems to have come in the spirit which at that time 
 pervaded the American people from the President down to the hum- 
 blest citizen in the land. Instead of the universal chorus of praise and 
 gratitude to the framers of the Constitution the air is now rent with 
 harsh voices of criticism and attack, while the vast mass of the 
 American people, still believing in their Constitution and their Gov- 
 ernment, look on and listen, bewildered and confused, dumb thus 
 far from mere surnrise, and deafened by the discordant outcry so 
 suddenly raised against that which they have always reverenced and 
 held in honor. Many excellent persons believe apparently that 
 beneficent results can be attained by certain proposed alterations 
 in the Constitution, often, I venture to think, without examina- 
 tion of the history and theory of government and without measuring 
 the extent or weighing the meaning of the changes which are urged 
 upon us. But it is also true that everyone who is in distress, or in 
 debt, or discontented, now assails the Constitution, merely because 
 such is the present passion. Every reformer of other people's mis- 
 deeds—all of that numerous class which is ever seeking to promote 
 virtue at somebody else's expense — pause in their labors to point 
 out the supposed shortcomings of our National Charter. Every 
 raw demagogue, every noisy agitator, incapable of connected thought 
 and seeking his own advancement by the easy method of appealing 
 to envy, malice, and all uncharitablcness— those unlovely qualities 
 in human nature which so readily seek for gratification under the 
 mask of high sounding and noble attributes— all such people now 
 lift their hands to tear down or remake the Constitution. In House 
 and Senate one can hoar attacks upon it at any time and listen to 
 men deriding its framers and their work. No longer are we criti- 
 cised by outsiders for having a superstitious reverence for our Con- 
 stitution. Quite recently I read an article by an English member 
 of Parliament (Mr. L. T. Ilobhouse), a Liberal, I believe, with 
 Socialist proclivities, who said that this reproach of an undue yenera- 
 Jion for the Constitution ought no longer to be brought against us, 
 because beneficent and progressive spirits were already beginning to
 
 THE CONSTITUTION AND ITS MAKEES. 5 
 
 pull it to pieces and were seeking to modernize it in conformity with 
 the clamor of the moment. All this is quite new in our history. 
 We have as a people deeply reverenced our Constitution. We have 
 realized what it has accomplished and what protection it has given 
 to ordered freedom and individual liberty. Even the Abolitionists, 
 when they denounced the Constitution for the shelter which it afforded 
 to slavery, did not deny its success in other directions, and their 
 hostility to the Constitution was one of the most deadly weapons used 
 against them. 
 
 The enmity to the Constitution and the attacks upon it which 
 have developed in the last few years present a situation of the utmost 
 gravity. If allowed to continue without answer, they may mislead 
 public opinion and produce the most baneful results. The people 
 of the United States may come to believe that all these attacks are, 
 in a measure at least, true. And therefore if they are not true, 
 their falsity ought to be shown. Beside the question of the main- 
 tenance or destruction of the Constitution of the United States all 
 other questions of law and policy sink into utter insignificance. In 
 its presence party lines should disappear and all sectional differ- 
 ences melt away like the early mists of dawn before the rising sun. 
 The Constitution is our fundamental law. Upon its provisions rests 
 the entire fabric of our institutions. It is the oldest of written con- 
 stitutions. It has served as a model for many nations, both in the 
 Old World and in the New. It has disappointed the expectations 
 of those who opposed it, convinced those who doubted, and won 
 a success beyond the most glowing hopes of those who put faith in 
 it. Such a work is not to be lightly cast down or set aside, or, which 
 would be still worse, remade by crude thinkers and by men who 
 live only to serve and flatter in their own interest the emotion of the 
 moment. We should approach the great subject as our ancestors 
 approached it — simply as Americans with a deep sense of its seri- 
 ousness and with a clear determination to deal with it only upon full 
 knowledge and after the most mature and calm reflection. The time 
 has come to do this, not only here and now, but everywhere through- 
 out the country. 
 
 Let us first consider who the men were who made the Constitution 
 and under what conditions they worked. Then let us determine 
 exactly what they meant to do — a most vital point, for much of the 
 discussion to which we have been treated thus far has proceeded 
 upon a complete misapprehension of the purpose and intent of the 
 framers of the Constitution. Finally, let us bring their work and 
 their purposes to the bar of judgment, so that we may decide whether 
 they have failed, whether in their theory of government they were 
 right or wrong then and now, or whether their work has stood the 
 test of time, is broad based on eternal principles of justice, and, if rent 
 or mangled or destroyed, would not in its ruin bring disaster and 
 woes inestimable upon the people who shall wreck their great inher- 
 itance and, like 
 
 The base Indian, throw a pearl away, 
 Richer than all his tribe. 
 
 First, then, of the men who met in Philadelphia in May, 1787, with 
 doubts and fears oppressing them, but with calm, high courage and 
 with a noble aspiration to save their country from the miseries which 
 threatened it, to lead it out from the wilderness of distractions in
 
 6 THE CONSTITUTION AND ITS MAKEES. 
 
 which it was wandering blind and helpless, into the light, so that the 
 chaos, hateful alike toGod and men, might be ended and order put in 
 its place. It is the fashion just now to speak of the framers of the 
 Constitution as worthy, able, and patriotic persons whom we are proud 
 to have embalmed in our history, but toward whom no enlightened 
 man would now think of turning seriously for either guidance or 
 instruction, so thoroughly has everything been altered and so much 
 has intelligence advanced. It is commonly said that they dealt 
 wisely and well with the problems of their day, but that of course 
 they knew nothing of those which confront us, and that it would be 
 worse than folly to be in any degree governed by the opinions of 
 men who lived under such wholly different conditions. It seems to 
 me that this view leaves something to be desired and is not wholly 
 correct or complete. I certainly do not think that all wisdom died 
 with our fathers, but I am quite sure that it was not born yesterday. 
 I fully realize that in saying even this I show myself to be what is 
 called old fashioned, and I know that a study of history, which has 
 been one of the pursuits of my life, tends to make a man give more 
 weight to the teachings of the past than it is now thought they 
 deserve. Yet, after all allowance is made, I can not but feel that 
 there is something to be learned from the men who established the 
 Government of the United States, and that their opinions, the result 
 of much and deep reflection, are not without value, even to the wisest 
 among us. 
 
 On questions of this character, I think, their ideas and conclusions 
 are not lightly to be put aside; for, after all, however much we may 
 now gently patronize them as good old patriots long since laid in 
 their honored graves, they were none the less very remarkable men, 
 who would have been eminent in any period of history and might 
 even, if alive now, attain to distinction. Let us glance over the list 
 of delegates to the Constitutional Convention m Philadelphia in 
 1787. I find, to begin with, that their average age was 43, which is 
 not an extreme senectitude, and the ages range from Franklin, who 
 was 81, to John Francis Mercer, of Virginia, who was 28. Among 
 the older men who were conspicuous in the convention were Frank- 
 lin, with his more than 80 years; Washington, who was 55; Roger 
 Sherman, who was 66; and Mason and Wythe, of Virginia, who were 
 both 61. But when I looked to see who were the most active forces 
 in that convention, I found that the New Jersey plan was brought 
 forward by William Paterson, who was 42; that the Virginia plan 
 was proposed by Edmund Randolph, who was 34; while Charles 
 Pinckney, of South Carolina, whose plan played a large part in the 
 making of the Constitution, was only 29. The greatest single argu- 
 ment, perhaps, which was made in the convention was that of Ham- 
 ilton, who was 30. The man who contributed more, possibly, than 
 any other to the daily labors of the convention and who followed 
 every detail was Madison, who was 36. The Connecticut compro- 
 mise was very largely the work of Ellsworth, who was 42; and the 
 committee on style, which made the final draft, was headed by 
 Gouverneur Morris, who was 35. Let us note, then, at the outset 
 that youth and energy, abounding hope, and the sympathy for the 
 new times stretching forward into the great and uncharted future, 
 as well as high ability, were conspicuous among the men who framed 
 the Constitution of the United States.
 
 THE CONSTITUTION AND ITS MAKEBS* 7 
 
 Their presiding officer was Washington, one of the great men of all 
 time, who had led the country through seven years of war, and of 
 whom it has been said by an English historian that "no nobler figure 
 ever stood in the forefront of a nation's life." Next comes Franklin, 
 the great man of science, the great diplomatist, the great statesman 
 and politician, the great writer; one of the most brilliant intellects of 
 the eighteenth century, who in his long life had known cities and men 
 as few others have ever known them. There was Hamilton, one of 
 the greatest constructive minds that modern statesmanship has to 
 show, to whose writings German statesmen turned when they were 
 forming their Empire forty years ago and about whom in these later 
 days books are written in England, because Englishmen find in the 
 principal author of the Federalist the great exponent of the doctrines 
 of successful federation. There, too, was Madison, statesman and law- 
 maker, wise, astute, careful, destined to be, under the Government 
 which he was helping to make, Secretary of State and President. 
 Roger Sherman was there, sagacious, able, experienced- one of the 
 leaders of the Revolution and a signer of the Declaration of Inde- 
 pendence, as he was of the Constitution. Great lawyers were present 
 m Philadelphia in that memorable summer of 1787, such men as 
 Ellsworth and Wilson and Mason and Wythe. It was, in a word, a 
 very remarkable body which assembled to frame a constitution for 
 the United States. Its members were men of the world, men of 
 affairs, soldiers, lawyers, statesmen, diplomatists, versed in history, 
 widely accomplished, deeply familiar with human nature. I think 
 that without an undue or slavish reverence for the past or for the 
 men of a former generation, we may fairly say that in patriotism and 
 in intellect, in knowledge, experience, and calmness of judgment, these 
 framers of the Constitution compare not unfavorably with those 
 prophets and thinkers of to-day who decry the work of 1787, would 
 seek to make it over with all modern improvements, and who with 
 unconscious humor declare that they are engaged in the restoration 
 of popular government. 
 
 That phrase is in itself suggestive. That which has never existed 
 can not do restored. If popular government is to be restored in the 
 United States it must have prevailed under the Constitution as it is, 
 and yet those, who just now are so devoured by anxiety for the rights of 
 the people, propose to effect the restoration they demand by changing 
 the very Constitution under which popular government is admitted 
 by their own words to have existed. I will point out presently the 
 origin of this confusion of thought. It is enough to say now that for 
 more than a century no one questioned that the government of the 
 Constitution was in the fullest sense a popular government. In 1863 
 Lincoln, in one of the greatest speeches ever uttered by man, declared 
 that he was engaged in trying to save government by the people. 
 Nearly thirty years later, when we celebrated the one hundredth 
 anniversary of the Constitution, the universal opinion was still the 
 same. All men then agreed that the Government which had passed 
 through the fires of civil war was a popular government. Indeed, 
 this novel idea of the loss of popular government which it is proposed 
 to restore by mangling the Constitution under which it has existed 
 for more than a century is very new; in fact, hardly ten years old. 
 
 This first conception of our Constitution as an instrument of popu- 
 lar government, so long held unquestioned, was derived from the
 
 8 THE CONSTITUTION AND ITS MAKERS. 
 
 framers of the Constitution themselves. They knew perfectly well 
 that they were founding a government which was to be popular in the 
 broadest sense. The theory now sedulously propagated, that these 
 creat men did not know what they were about, or wore pretending to 
 do one thing whilo they really did another, is one of the most fantastic 
 delusions with which" agitators have ever attempted to mislead or 
 perplex the public mind. The makers of the Constitution may have 
 been right or they may have been wrong m the principles upon which 
 thev acted or in the work they accomplished, but they knew pre- 
 cisely what they meant to do and why they did it. No man in history 
 ever faced facts with a clearer gaze than George Washington, and when, 
 after the adjournment of the convention he said, "We have raised a 
 standard to which the good and wise can repair; the event is in the 
 hands of God," he labored under no misapprehension as to the char- 
 acter of the great instrument where his name led all the rest. 
 
 It is the fashion to say that since then great changes have occurred 
 and wholly new conditions have arisen of winch the men of 1787 could 
 by no possibility have had any knowledge or anticipation. This is 
 quite true. They could not have foreseen the application of steam 
 to transportation, or of electricity to communication, which have 
 wrought greater changes in human environment than anythmg which 
 has happened to man since those dim, prehistoric, unrecorded days 
 when some one discovered the control of fire, invented the wheel, and 
 devised the signs for language, masterpieces of intelligence with 
 winch even the marvels of the last century can not stand comparison. 
 The men of the Constitution could as little have foreseen what the 
 efTects of steam and electricity would be as they could have anticipated 
 the social and economic effects of these great inventions or the rapid 
 seizure of the resources of nature through the advances of science and 
 the vast fortunes and combinations of capital which have thus been 
 engendered. Could they, however, with prophetic gaze have beheld 
 in a mirror of the future all these new forces at work, so powerful as 
 to affect the very environment of human life, even then they would 
 not, I think, have altered materially the Constitution which they 
 were slowly and painfully perfecting. They would have kept on 
 their way, Because they would have seen plainly what is now too often 
 overlooked and misunderstood, that all the perplexing and difficult 
 problems born of these inventions and of the changes, both social 
 and economic, which have followed were subjects to be dealt with by 
 laws as the questions arose, and laws and policies were not their busi- 
 ness. They were not making laws to regulate or to affect either 
 social or economic conditions. Their work was not only higher but 
 far different. They were laying down certain great principles upon 
 which a government was to be built and by which laws and policies 
 were to be tested as gold is tested by a touchstone. 
 
 Upon the work in which they were engaged social and economic 
 changes or alterations in international relations and political condi- 
 tions'^ no matter how profound or unforeseen — and none could have 
 been more profound or more unforeseen than those which have 
 actually taken place — had little bearing or effect. They were framing 
 a government, and human nature was the one great and controlling 
 element in their problem. Human nature, with its strength and its 
 weakness, its passions and emotions so often dominating its reason, 
 its selfish desires and its nobler aspirations, was the same then as now.
 
 THE CONSTITUTION AND ITS MAKERS. » 
 
 There is no factor so constant in human affairs as human nature 
 itsc?lf and in its essential attributes it is the same to-day as it was 
 among the builders of the Pyramids. As to the principles of govern- 
 ment winch the framers of the Constitution wished to adapt to that 
 portion of human nature which had gained a foothold on the North 
 American Continent there was little to be discovered. There is no 
 greater fallacy than to suppose that new and fundamental principles 
 of government are constantly to be invented and wrought out. Laws 
 change and must change with the march of humanity across the cen- 
 turies as it alteration finds in the conditions about it, but fundamental 
 principles and theories of government are all extremely old. The very 
 words in which we must express ourselves when we speak of forms of 
 government are all ancient. Let me recall a few facts winch every 
 schoolboy knows and which anyone can obtain by indulging in that 
 too much neglected exercise of examining a dictionary. Anarchy, 
 for example, is the Greek word "rule" or "command" with the alpha 
 privative in the form of "an" prefixed, and means the state of a people 
 without government. Monarchy is the rule of one; oligarchy is the 
 rule of a few. We can not state what our own Government is with- 
 out using the word "democracy," winch is merely the Greek word 
 A-qfioKparzta and means popular government or the rule of the people. 
 Aristocracy, ideally as Aristotle had it, is the rule of the best, but 
 even in those days it meant in practice the rule of the best-born or 
 nobles. Plutocracy is the rule of the rich; autocracy, self-derived 
 power — the unlimited authority of a single person. Ochlocracy is 
 the rule of the multitude, for winch we have tried to substitute the 
 hideous compound "mobocracy." As with the words, so with the 
 things of winch the words are the symbol; the people who invented the 
 one had already devised the other. The words all carry us back to 
 Greece, and all these various forms of government were well known to 
 the Greeks and had been analyzed and discussed by them with a bril- 
 liancy, a keenness, and an intellectual power which have never been 
 surpassed. If you will read The Republic and The Laws of Plato and j 
 supplement that study by an equally careful examination of what ] 
 Aristotle has to say on government you will find that those great ■ 
 minds have not only influenced human thought from that time to 
 this, but that there is little winch they left unsaid. It is the fashion, i 
 for example, to speak of socialism as if it were something new, a rath- 
 ant discovery of our own time which is to wipe away all tears. The 
 truth is that it is very old, as old in essence as human nature, for it 
 appeals to the strong desire in every man to get something for nothing 
 and to have someone else bear his burdens and do his work for him. 
 As a system it is amply discussed by Plato, who, in The Republic, 
 urges measures which go to great extremes in tins direction. In the 
 fourth century of our era a faction called the Circumcellions were 
 active as socialists and caused great trouble within the weakening 
 Empire of Rome. The real difficulty historically with the theories of 
 socialism is not that they are new, but that they are very, very old, 
 and wherever they have been put in practical operation on a large 
 scale they have resulted in disorder, retrogression, and in the arrest of 
 civilization and progress. Broadly stated, there have been only two 
 marked additions to theories or principles of government since the 
 days of the Greeks and the Romans. One is the representative prin- 
 ciple developed by the people of England in the "Mother of Parlia-
 
 10 THE CONSTITUTION AND ITS MAKERS. 
 
 ments" and now spread all over the world, and the other is the 
 system of federation on a large scale embracing under a central gov- 
 ernment of defined powers a union of sovereign and self-governing 
 States which the world owes in its bold and broad application to the 
 men who met at Philadelphia to frame our Constitution in 1787. 
 
 With these exceptions the framers of the Constitution dealt with 
 the theories and systems of government which have been considered, 
 discussed, and experimented with for more than two thousand years 
 and which are to-day, a century later, the same as in 1787, un- 
 changed and with no additions to their number. In order to reach 
 the essence of what the makers of the Constitution tried and meant 
 to do, which it is most important to know and reflect upon deeply 
 before we seek to undo their work, let us begin by dismissing from 
 our consideration all that is unessential or misleading. Let us lay 
 aside first the word republic, for a republic denotes a form and not a 
 
 Erinciple. A republic may be democratic like ours, or an autocracy 
 ke that of Augustus Caesar, or an oligarchy like Venice, or a changing 
 tyranny like some of those visible in South America. The word has 
 become as inaccurate, scientifically speaking, as the word monarchy 
 which may be in reality a democracy as in England or Norway, con- 
 stitutional as in Italy, or a pure despotism as in Russia. Let us 
 adhere in this discussion to the scientifically exact word "democ- 
 racy." Next let us dismiss all that concerns the relations of the 
 States to the National Government. Federation, as I have said, 
 was the great contribution of the Philadelphia convention to the 
 science of government. The framers of the Constitution, if they did 
 not invent the principle, applied it on such a scale and in such a 
 way that it was practically a discovery, a venture both bold and new, 
 as masterly as it was profoundly planned. With the love of prece- 
 dents characteristic of their race they labored to find authority and 
 example in such remote and alien arrangements as the Achean 
 League and the Amphictyonic Council, but the failure of these prec- 
 edents as such was the best evidence of the novelty and magnitude 
 of their own design. Their work in this respect has passed through 
 the ordeal of a great war; it has been and is to-day the subject of 
 admiration and study on the part of foreign nations, and not even 
 the most ardent reformer of this year of grace would think, in his efforts 
 to restore popular government, of assailing the Union of Sovereign 
 States. Therefore we may pass by this great theme which was the 
 heaviest part of the task of our ancestors. 
 
 In the same way we may dismiss, much as it troubled the men of 
 1787, all that relates to the machinery of government, such as the 
 electoral college, the tenure of office, the methods of electing Senators 
 and Representatives, and the like. These matters are important; 
 many active thinkers in public life seek to change them, not for the 
 better, as I believe, but none the less these provisions concern only the 
 mechanism of government ; they do not go to the root of the matter, 
 they do not anect the fundamental principles on which the Govern- 
 ment rests. 
 
 By making these omissions we come now to the vital point, which 
 is, What kind of a government did the makers of the Constitution 
 intend to establish and how did they mean to have it work? They 
 were, it must be remembered, preparing a scheme of government for 
 a people peculiarly fitted to make any system of free institutions work
 
 THE CONSTITUTION AND ITS MAKERS. 11 
 
 well. The people of the United Colonies were homogeneous. They 
 came in the mam from Great Britain and Ireland, with the addition of 
 the Dutch in New York, of some Germans from the Palatinate and of a 
 few French Huguenots, whose ability and character were as high as their 
 numbers were relatively small. But an overwhelming majority of the 
 American people in 1787 were of English and Scotch descent and they, 
 as well as the others from other lands, were deeply imbued with all those 
 principles of law which were the bulwarks of English liberty. In this 
 new land men had governed themselves and there was at that moment 
 no people on earth so fit for or so experienced in self-government as 
 the people of the Thirteen Colonies. Their colonial governments 
 were representative and in essence democratic. They became entirely 
 so when the Revolution ended and the last English governor was with- 
 drawn. In the four New England Colonies local government was in 
 the hands of the town meetings, the purest democracies then or now 
 extant, but it is best to remember, what the men of 1787 well knew, 
 that these little democracies moved within fixed bounds determined 
 by the laws of the States under which they had their being. 
 
 For such a people, of such a character, with such a past and such 
 habits and traditions only one kind of government was possible, and 
 that was a democracy. The makers of the Constitution called their 
 new Government a Republic and they were quite correct in doing 
 so, for it was of necessity republican in form. But they knew that 
 what they were establishing was a democracy. One has but to 
 read the debates to see how constantly present that fact was to their 
 minds. Democracy was then a very new thing in the modern world. 
 As a system it had not been heard of, except in the fevered struggles 
 of the Italian City Republics, since the days of Rome and Greece, 
 and although the convention knew perfectly well that they were 
 estabhshing a democracy and that it was inevitable that they should 
 do so, some of them regarded it with fear and all with a deep sense 
 of responsibility and caution. The logical sequence as exhibited in 
 history and as accepted by the best minds of the eighteenth century, 
 struggling to give to men a larger freedom, was democracy — anarchy — 
 despotism. The makers of the Constitution were determined that 
 so far as in them lay the American Republic should never take the 
 second step, never revolve through the vicious circle which had cul- 
 minated in empire in Rome, in the tyrants of the Grecian and the 
 despots of the Italian Cities which in their turn had succumbed to 
 the absolutism of foreign rulers. 
 
 The vital question was how should this be done; how should 
 they establish a democracy with a strong government — for after 
 their experience of the confederation they regarded a weak govern- 
 ment with horror — and at the same time so arrange the government 
 that it should be safe as well as strong and free from the peril of 
 lapsing into an autocracy on the one hand, or into disorder and 
 anarchy on the other? They did not try to set any barrier in the 
 way of the popular will, but they sought to put effective obstacles 
 in the path to sudden action which was impelled by popular passion, 
 or popular whim, or by the excitement of the moment. They were 
 the children of the "Great Rebellion" and the "Blessed Revolu- 
 tion" in the England of the seventeenth century, and they were 
 steeped in the doctrine of limiting the power of the King. But here 
 they were dealing with a sovereign who could not be limited, for
 
 12 THE CONSTITUTION AND ITS MAKERS. 
 
 while a kins: can be limited by transferring his power to the people, 
 when the people are sovereign their powers can not be transferred 
 to anybody. There is no one to transfer them to, and if they are 
 taken away the democracy ceases to exist and another government, 
 fundamentally different, takes its place. 
 
 The makers of the Constitution not only knew that the will of 
 the people must be supreme, but they meant to make it so. That 
 which tney also aimed to do was to make sure that it was the real 
 will of the people which ruled and not their momentary impulse, 
 their well-considered desire and determination and not the passion 
 of the hour, the child, perhaps, of excitement and mistake inflamed 
 by selfish appeals and terrorized by false alarms. The main object, 
 therefore, was to make it certain that there should be abundant 
 time for discussion and consideration, that the public mind should be 
 thoroughly and well informed and that the movements of the ma- 
 chinery of government should not be so rapid as to cut off due 
 deliberation. With this end in view they established with the utmost 
 care a representative system with two chambers and an executive 
 of large powers, including the right to veto bills. They also made the 
 amendment of the Constitution a process at once slow and difficult, 
 for they intended that it should be both, and indeed that it should 
 be impracticable without a strong, determined, and lasting public 
 sentiment in favor of change. 
 
 Finally they established the Federal judiciary, and in the Supreme 
 Court of the United States they made an addition to the science of 
 government second only in importance to their unequaled work in 
 the development of the principle of federation. That great tribunal 
 has become in the eyes of the world the most remarkable among the 
 many remarkable solutions devised by the Convention of 17S7 for 
 the settlement of the gravest governmental problems. John Mar- 
 shall, with the intellect of the jurist and the genius of the statesman, 
 saw the possibilities contained in the words which called the court 
 into being. By his interpretation and that of his associates and 
 their successors the Constitution attained to flexibility and escaped 
 the rigidity which then and now is held up as the danger and the 
 defect of a written instrument. In their hands the Constitution 
 has been expanded to meet new conditions and new problems as they 
 have arisen. In their hands also the Constitution has been the pro- 
 tection of the rights of States and the rights of men, and laws which 
 violated its principles and its provisions have been set aside. 
 
 By making the three branches of the Government, the executive, 
 the legislative, and the judicial, entirely separate and yet coordinate 
 and by establishing a representative system and creating a Supreme 
 Court of extraordinary powers the framors of the Constitution 
 believed that they had made democracy not only all powerful but at 
 the same time safe and that they had secured it from gradual con- 
 version into autocracy on the one hand and from destruction by too 
 rapid motion and too quick response to the passions of the moment 
 on the other. If ever men were justified by results they have been. 
 The Constitution in its development and throughout our history has 
 surpassed the hopes of its friends and utterly disappointed the pre- 
 dictions and the criticisms of its foes. Under it the United States has 
 grown into the mighty Republic we see to-day. New States have come 
 into the Union, vast territories have been acquired, population and
 
 THE CONSTITUTION AND ITS MAKERS. 13 
 
 wealth have increased to a degree which has amazed the world, and 
 life, liberty, and property have been guarded beneath the flag which 
 is at once the symbol of the country and of the Constitution under 
 which the Nation has risen to its high success. Such results would 
 seem to be a potent argument in favor of the instrument of gov- 
 ernment through which they have been achieved. But to argue 
 from results seems just now out of fashion. Actual accomplish- 
 ment it would appear is nothing. According to the new dispensa- 
 tion our decision must be made on what is. promised for the future, 
 not on what has been done in the past. Under this novel doctrine, 
 as I have observed it, we are to be guided only by envy and discon- 
 tent and are to act exclusively on the general principle that what- 
 ever is is wrong. 
 
 What, then, is the plan by which popular government, which 
 existed under the Constitution for more than a century and which 
 has been mysteriously lost during the past few years, is to be restored 
 to us ? It is proposed, to put it in a few words, to remove all the bar- 
 riers which the makers of the instrument established in order to pre- 
 vent rash, hasty, and passionate action and to secure deliberation, 
 consideration, and due protection for the rights of minorities and of 
 individuals. This is to be accomplished in two ways, by emasculat- 
 ing the representative system through the compulsory initiative and 
 referendum and by breaking down the courts through the recall. 
 These are the changes by which it is intended to revive popular gov- 
 ernment. Incidentally they strike at the very heart of the Consti- 
 tution as the framers planned and made it, for they will convert the 
 deliberate movement of the governmental machinery, by which its 
 makers intended to secure to democracy both permanence and suc- 
 cess, into an engine which starts at the touch of an electric button, 
 which is as quick in response as a hair-trigger pistol and as rapid in 
 operation as a self-cocking revolver. These new and precious ideas 
 are of a ripe age; in fact they have passed many hundreds of years 
 beyond the century fixed by Dr. Johnson for the establishment of a 
 literary reputation at a point where it might be intelligently dis- 
 cussed. Let us therefore consider and criticize them. 
 
 The compulsory initiative and the compulsory referendum need 
 not detain us long, for the effect of those devices is obvious enough. 
 The entire virtue or the entire vice — each of us may use the word 
 he prefers— of these schemes rests in the word "compulsory." The 
 initiative without compulsion is complete in the right of petition 
 secured by the first of the first ten amendments to the Constitution, 
 which really constituted a bill of rights. The right of petition 
 became the subject of bitter controversy at a later time and was 
 vindicated once for all by John Quincy Adams's great battle in its 
 behalf, more than three-quarters of a century ago. There are few 
 instances where petitions representing a genuine popular demand 
 have not met a response in action, whether in Congress or in the State 
 legislatures; still fewer where respectful attention and consideration 
 have not been accorded to them. But the responsibility for action 
 and the form such action should take has rested with the repre- 
 sentative body. When the initiative is made compulsory a radical 
 . change is effected. A minority, sometimes a small minority of the 
 voters, always a small minority of the people, can compel the legis- 
 lature to pass a law and submit it to the voters even when a very
 
 14 THE CONSTITUTION AND ITS MAKERS. 
 
 large majority of the people neither ask for nor, so far as the evi- 
 dence goes, desire it. In this way all responsibility is taken from 
 the representative body and they become mere clerks for drafting 
 and recording laws, poor puppets who move mechanically when 
 some irresponsible outsiders twitch the strings. It is the substi- 
 tution of government by factions and fractions for government by 
 the people. The representative body as hitherto constituted repre- 
 sented the whole people. Under the new plan it is to be merely the 
 helpless instrument or a minority, perhaps a very small minority, of 
 the voters. 
 
 The voluntary referendum has always existed in this country. In 
 the National Government, owing to our dual or Federal form, the refer- 
 endum on constitutional amendments is necessarily made to the States 
 and it has never been suggested for the laws of the United States, 
 owing to both physical and constitutional difficulties. In the States 
 the referendum has always been freely used, not only for constitu- 
 tions and constitutional amendments but for laws, especially for 
 city charters, local franchises, and the like. But if, on the demand of 
 a minority of the voters, the referendum is made compulsory, all re- 
 sponsibility vanishes from the representative body. The representa- 
 tive no longer seeks to represent the whole people or even his own 
 constituency, but simply votes to refer everything to the voters, and 
 covers himself completely by pointing to the compulsory referendum. 
 On the other hand, the voters are called upon to legislate. Of the 
 mass of measures submitted they know and can know nothing. Ex- 
 perience shows that in all referendums a large proportion of the voters 
 decline to vote. Whether this is due to indifference or to lack of in- 
 formation the result is the same. It proves that this system demands 
 from the voters what the most intelligent voters in the world are unable 
 to give. They are required to pass upon laws, many of which they 
 have neither time nor opportunity to understand, without deliberation 
 and without any discussion except what they can gather from the 
 campaign orator, who is, as a rule, interested in other matters, or from 
 an occasional article in a newspaper. They can not alter or amend. 
 They must vote categorically "yes" or "no." The majority either 
 fails to vote, and the small and interested minority carries its measure, 
 or the majority, in disgust, votes down all measures submitted, good 
 and bad alike, because they do not understand them and will not vote 
 without knowing what their votes mean. 
 
 The great laws which, both in England and the United States, 
 have been the landmarks of freedom and made ordered liberty pos- 
 sible were not passed and never could have been perfected and passed 
 in such a way as this. This new plan is spoken of by its advocates 
 as progressive. As a matter of fact, it is the reverse of progressive, 
 it is reactionary. Direct legislation by popular vote was familiar, 
 painfully familiar, to Greece and Rome. In both it led through 
 corruption, violence, and disorder to autocracy and despotism. The 
 direct-vote system also proved itself utterly incapable of the govern- 
 ment of an extended empire and. of large populations. Where gov- 
 ernment by direct vote miserably failed, representative government, 
 after all deductions have been made, has brilliantly succeeded. The 
 development of the principle and practice of representative govern- 
 ment was, as I have already pointed out, the one great contribution 
 of modern times to the science of government. It has shown itself
 
 THE CONSTITUTION AND ITS MAKERS. 15 
 
 capable of preserving popular government and popular rights without 
 the violence and corruption which resulted of old in anarchy and 
 despotism and at the same it has proved its adaptability to the man- 
 agement of large populations and the efficient government of great 
 empires. Representative government was an enormous advance 
 over government by the direct vote of the forum, the agora, or the 
 market place, which had preceded it, and which had gone down in 
 disaster. It is now proposed to abandon that great advance and to 
 return to the ancient system with its dark record of disorder and 
 failure. This is not progress. It is retreat and retrogression. It 
 is the abandonment or a great advance and a return to that which is 
 not only old and outworn, but which history and experience have 
 alike discredited. 
 
 Look now for a moment at representative government as we our- 
 selves have known it. Let us not forget, in the first place, that the 
 Congress of the United States under the Constitution has been in 
 continuous existence for more than 120 years; that with the single 
 exception of the "Mother of Parliaments" it is much the oldest 
 representative body of a constitutional character now existing in tht> 
 world. Let us also remember that the history of the American 
 Congress is in large part the history of the United States, and that we 
 are apt to be proud of that history as a whole and of the many great 
 things we as a people have accomplished. Yet whatever praise his- 
 tory accords to the Congress of the United States in the past the Con- 
 gress of the moment and the members of that body in either branch 
 receive but little commendation from their contemporaries. This is 
 perhaps not unnatural, and it certainly has always been customary. 
 Legislative bodies have rarely touched the popular imagination or 
 appeared in a dramatic or picturesque attitude. The Conscript 
 Fathers, facing in silence the oncoming barbarians of Gaul; Charles 
 the First, attempting to arrest the five members; the Continental 
 Congress adopting the Declaration of Independence; the famous Oath 
 of the Tennis Court are almost the only instances which readily occur 
 to one 's mind of representative and legislative bodies upon whom for 
 a brief instant has rested the halo of heroism and from which comes a 
 strong appeal to the imagination. The men who fight by land and 
 sea rouse immediate popular enthusiasm, but a body of men engaged 
 in legislation does not and can not offer the fascination or the attrac- 
 tion which are inseparable from the individual man who stands 
 forth alone from the crowd in any great work of life, whether of war 
 or peace. 
 
 We may accept without complaint this tendency of human nature, 
 but I think every dispassionate student of history, as well as every 
 man who has had a share in the work of legislation, may rightfully 
 deprecate the indiscriminate censure and the consistent belittling 
 which pursue legislative bodies. This attitude of mind is not confined 
 to the United States. The press of England treats its Parliament 
 severely enough, although on the whole with more respect than is the 
 case with the American press in regard to the American Congress. 
 But running through English novels and essays we find as a rule the 
 same sneer at the representatives of the people as we do here. Very 
 generally, both in this country and abroad, those who write for the 
 public seem to start with the proposition that to be a Member of 
 Congress or a member of Parliament, or a member of the Chamber of
 
 16 THE CONSTITUTION AND ITS MAKERS. 
 
 Deputies in France implies some necessary inferiority of mind or 
 character. I do not desire to be rash or violent, but I think this 
 theory deserves a moment's examination and is perhaps open to some 
 doubt. As Mr. Reed once said, it is a fair inference that a man who 
 can impress himself upon 200,000 people, or upon the whole popula- 
 tion of a great State, sulliciently to induce them to send him to the 
 House or°Senate has something more than ordinary qualities and 
 something more than ordinary force. Then, again, as Edmund Burke 
 remarked, you can not draw an indictment against a whole people, 
 nor, I may add, can you draw an indictment against an entire class. 
 There are good men and bad men in business and in the professions, 
 in the ministry, in medicine, in law, and among scholars. Virtue is 
 not determined by occupation. There are, I repeat, good and bad 
 men in every profession and calling, among high and low, rich and 
 poor, and the honest men who mean to do right largely preponderate, 
 tor if they did not the whole social structure would come crashing to 
 the ground. What is true of business and the professions is true of 
 Congress. There are good and bad men in public life, and the pro- 
 portion of good to bad, I believe, compares favorably with that of any 
 other occupation. Public men live in the fierce light which beats 
 upon them as upon the throne, a Ught never fiercer or more pitiless 
 than now, and for this reason their shortcomings are made more glar- 
 ing and their virtues by contrast more shadowed than in private life. 
 This is as it should be, for the man who does wrong in private life is 
 far less harmful than the public servant who is false to his trust. To 
 inflict upon the public servant who is a wrongdoer the severest 
 reprobation is necessary for the protection of the community, but 
 for this very reason we' should be extremely careful that no reproba- 
 tion should'be visited unjustly on any public man. It is an evil thing 
 to betray the public trust, but it is an equally evil thing to pour whole- 
 sale condemnation upon the head of every man in public life, good and 
 bad alike. That which sutlers most from an injustice like this in the 
 long run is not the public servant who has been unfairly dealt with, for 
 the°individual passes quickly, but the country itself. After all, the 
 voters make the Representative. If he is not of the highest type, he 
 appears to be that which the majority prefers. Wholesale criticism 
 and abuse of the Representatives reflect more on the constituencies, if 
 we stop to consider, than on those whom the constituencies select to 
 represent them. Indiscriminate condemnation and equally indiscrimi- 
 nate belittling of the men who make and execute our laws, whether in 
 State or Nation, is not only a reflection upon the American people 
 but is a blow to the United States and every State in it. They help 
 the guilty to escape and injure the honest and the innocent. They 
 destroy the people's confidence in their own Government and lower 
 the country in the eyes of foreign nations. 
 
 The Congress of the United States embodies the representative 
 principle. The principle of representation, I repeat, has been 
 the great contribution of the English-speaking race to the science 
 and practice of government. The Greeks and the Romans, let me 
 say once more, had pure democracy and legislation by direct vote in 
 theory, at least, and we have but to read Plato's Republic and The 
 Laws to learn the defects of the system in use in Athens. Greece 
 failed to establish an empire; she touched the highest peaks of civ- 
 ilization, and finally went to pieces politically beneath the onset of
 
 THE CONSTITUTION AND ITS MAKERS. 17 
 
 Rome. Rome established a great empire, but, after years of bloody 
 struggles between aristocracy and democracy, it ended in a simple 
 despotism. The free cities of Italy oscillated between anarchy and 
 tyranny, only to fall victims in the end to foreign masters. In 
 Florence they had elections every three months and a complication 
 of committees and councils to interpret the popular will. Yet the 
 result was the Medicis and the Hapsburgs. 
 
 It is also to be remembered that the representative principle has 
 been coincident with political liberty. Whatever its shortcomings 
 or defects, and, like all things human, it has its grave defects, it 
 none the less remains true that the first care of every "strong man," 
 every "savior of society," every "man on horseback," of every auto- 
 crat, is either to paralyze or to destroy the representative principle. 
 It may be that the representative principle is not the cause of polit- 
 ical liberty, but there can be no question whatever that the two have 
 always gone hand in hand and that the destruction of one has been 
 the signal for the downfall of the other. The Congress of the United 
 States and the legislatures of the several States embody the repre- 
 sentative principle. By that principle your laws have been made 
 and the republican form of government sustained for more than a 
 century. Whatever its shortcomings, it has maintained the Govern- 
 ment of the United States and upheld law and order throughout our 
 borders. 
 
 The framers of our Government separated the executive from the 
 legislative branch. They deemed both essential to freedom. The 
 constitution of my State declares that the government it establishes 
 is to be a government of laws and not of men; a noble principle and 
 one worthy of fresh remembrance. With such a history, and typi- 
 fying as it does the great doctrines which were embodied in the 
 Declaration of Independence, the Constitution of the United States, 
 and the institutions of England, it may fairly be asked that if the 
 representative principle must be criticized, as it should be, with 
 severity when it errs, it should also be treated with that absolute 
 justice which is not only right in the abstract but which is essential 
 to the maintenance of law, order, and free government, to human 
 progress and to the protection of the weak, even as the fathers 
 designed that it should be. When we blame its failures let us not 
 forget its services. They have broadened freedom down from prece- 
 dent to precedent. They shine across those pages of history which 
 tell the great story of the advance of liberty and of the ever-widening 
 humanity which seeks to make the world better and happier for 
 those who most need happiness and well-being. In beneficent results 
 for the people at large no other form of government ever attempted 
 can compare with it for a moment. 
 
 The worst feature of the compulsory initiative and referendum lies 
 therefore in the destruction of the principle of representation. Power 
 without responsibility is a menace to freedom and good government. 
 Responsibility without power is inconceivable, for no man in his 
 senses would bear such a burden. But when responsibility and power 
 are both taken away, whether from the executive or the represen- 
 tatives, the result is simple inanition. No man fit by ability and 
 character to be a representative would accept the office under such 
 humiliating conditions. Those who accepted it would do so for the
 
 18 THE CONSTITUTION AND ITS MAKEBS. 
 
 pocuniary reward which the office carried and would sink rapidly 
 into mere machines of record, neither knowing nor caring what they 
 did. With a representative body thus reduced to nothingness we 
 are left with the people, armed only with their votes, and with an 
 executive who has necessarily absorbed all the real powers of the 
 State. This situation is an old story and has always ended in the 
 same way. It presents one of those rare cases in which the teach- 
 ing of history is uniform. When the representative principle has 
 departed and only its ghost remains to haunt the Capitol, liberty has 
 not lingered long beside its grave. The rise of the representative 
 principle and its spread to new lands to-day marks the rise of popular 
 government everywhere. Wherever it has been betrayed or cast 
 down the government has reverted to despotism. When representa- 
 tive government has perished freedom has not long survived. 
 
 Most serious, most fatal indeed are the dangers threatened by the 
 insidious and revolutionary changes which it is proposed to make in 
 our representative system, upon which the makers of the Constitu- 
 tion relied as one of the great buttresses of the political fabric which 
 was to insure to popular government, success and stability. Yet even 
 these changes are less ruinous to the body politic, to liberty and order 
 than that which proposes to subject judges to the recall. No graver 
 question has ever confronted the American people. 
 
 The men who framed the Constitution were much nearer to the 
 time when there was no such thing as an independent judiciary than 
 we are now. The bad old days, when judges did the bidding of the 
 King, were much more vivid to them than to us. What is a common- 
 place to us was to them a comparatively recent and a hardly won 
 triumph. The fathers of some of those men — the grandfathers of 
 all — could recall Jeffreys and the "Bloody Assize." They knew well 
 that there could be no real freedom, no security for personal liberty, 
 no justice, without independent judges. It was for this reason that 
 they established the judiciary of the United States with a tenure 
 which was to last during good behavior and made them irremovable 
 except by impeachment. The Supreme Court then created and the 
 judiciary which followed have, as I have already said, excited the 
 admiration of the civilized world. The makers of the Constitution 
 believed that there should be no power capable of deflecting a judge 
 from the declaration of his honest belief, no threat of personal loss, 
 no promise of future emolument, which could be held over him in 
 order to sway his opinion. This conviction was ingrained and born 
 with them, as natural to them as the air they breathed, as vital as 
 their personal honor. How could it have been otherwise ? The inde- 
 pendence of the judiciary is one of the great landmarks in the long 
 struggle which resulted m the political and personal freedom of the 
 English-speaking people. The battle was fought out on English soil. 
 If you will turn to the closing scenes of Henry IV, you will find there 
 one of the noblest conceptions of the judicial office in the olden time 
 ever expressed in literature. It was written in the days of the last 
 Tudor or of the first Stuart, in the time of the Star Chamber, of judges 
 who decided at the pleasure of the King and when Francis Bacon, 
 Lord Chancellor of England, took bribes or gifts. Yet lofty as is the 
 conception, you will see that Shakespeare regarded the judge as 
 embodying the person, the will, and the authority of the King.
 
 THE CONSTITUTION AND ITS MAKERS. 19 
 
 We all know how the first two Stuarts used the courts to punish 
 their enemies and to prevent the assertion of political rights which 
 are now such commonplaces that the fact that they were ever ques- 
 tioned is forgotten. The tyranny of the courts was one of the chief 
 causes which led to the great rebellion, and out of that great 
 rebellion, when the third Stuart had been restored, came the 
 habeas corpus act, which has done more to protect per- 
 sonal liberty than any act ever passed. But the second Charles 
 and the second James had learned nothing as to the judges. 
 They expected them to do their bidding when the King had any 
 interest at stake, and under the last Stuart the courts reached a very 
 low point and the legal history of the time is characterized by the 
 evil name of Jeffreys. When the lawyers went to pay their homage 
 to William of Orange, they were headed by Sergt. Maynard, then 
 90 years of age. "Mr. Sergeant," said the prince, "you must have 
 survived all tlie lawyers of your standing." "Yes, sir," said the old 
 man, "and, but for Your Highness, I should have survived the laws 
 too." The condition of the courts was indeed one of the strongest of 
 the many bitter grievances which wrought the Revolution that placed 
 William of Orange on the English throne. In the famous bill of 
 rights there is no provision in regard to the courts and it is not quite 
 clear why it was omitted, although, apparently, it was due to an over- 
 sight. In any event it was not forgotten. It was brought forward 
 more than once in Parliament, but William announced that he would 
 not assent to any act making the judges independent of the Crown. 
 As his reign drew toward its close, however, he signified that al- 
 though he would veto a separate act he would accept the indepen- 
 dence of the judiciary if provided for in the act of settlement which 
 was to determine the succession to the throne of England. There- 
 fore we find in the act of settlement the clause which declares that 
 the judges shall hold office during good behavior — "quamdiu se 
 bene gesserint" — and shall be removable only on the request of 
 both houses of Parliament. 
 
 It is necessary to pause a moment here and consider briefly the 
 provision of the act of settlement for the removal of judges on an 
 address by the houses, because it has been most incorrectly used by 
 persons ignorant probably of its history as a precedent justifying the 
 recall. The clause was mserted not lor the purpose of controlling 
 the judges but to protect them still further against the power of the 
 Crown by which they had hitherto been dominated. The history of the 
 clause since its enactment demonstrates what its purpose was as well 
 as the fulfillment of that purpose in practice. During the two cen- 
 turies which have elapsed since William III gave his assent to the act 
 there has been, so far as I can learn, only one removal on address, 
 that of Sir Jonah Barrington, an Irish judge, in 1806, more than a 
 hundred years ago. There have been several cases where removal 
 was petitioned for, but Barrington's was, I think, the only one in 
 which the demand was successful. The procedure employed shows 
 that there is no resemblance whatever between the removal of a judge 
 upon the address of the lawmaking body and the popular recall. 
 They are utterly different, instituted for different purposes, and the 
 former furnishes in reality a strong argument against the latter. In 
 all tho cases of removal or attempted removal by address of Parlia- 
 ment the accused judge was carefully tried before a special committee
 
 20 THE CONSTITUTION AND ITS MAKERS. 
 
 of each house; he could be heard at the bar of either house, he could 
 and did employ counsel, and could summon and cross-examine wit- 
 nesses. This process is as far removed from the recall as the zenith 
 from the nadir, for under the recall the accused judge has no oppor- 
 tunity to summon or cross-examine witnesses, to appear by counsel, 
 or to be properly heard and tried. He is obliged under the recall to 
 make an appeal by the usual political methods and at the same time 
 to withstand another candidate, while he is forced to seek a hearing 
 from audiences ignorant of the law and inflamed perhaps against him 
 by passion and prejudice. lie has no chance whatever of a fair trial. 
 Some of our States borrowed this provision of the act of settlement 
 when they formed their constitutions. My own State of Massachu- 
 setts was one of them. The power has been but rarely exercised by 
 the legislature in the hundred and thirty years which have passed 
 since our constitution was adopted, but it so happened that when I was 
 in the legislature a case occurred, and I was a member of the committee 
 on the judiciary to whom the petitions were referred. The accused 
 judge was tried as elaborately and fairly as he could have been by any 
 court or by the Senate if he had been impeached. He had counsel, 
 he summoned and cross-examined witnesses, and the trial, for it was 
 nothing less, occupied weeks. The committee reported in favor of 
 removal, but the house rejected the committee's report. Some years 
 later, after a similar trial, the address passed both houses and the 
 judge was removed by the governor for misdemeanors and mal- 
 feasance in office. A mere statement of the procedure shows at 
 once that the removal by address is simply a summary form of 
 impeachment with no relation or likeness to the recaU. Removal by 
 address is no more like the recall than impeachment is. If successful, 
 they all result in the retirement of the judge accused, but there the 
 resemblance ends. The makers of the Constitution did not follow the 
 act of settlement and adopt the removal on address. They no doubt 
 perceived its advantages, because it made possible the removal of a 
 judge incapacitated by insanity or age or disease without inflicting 
 upon him the stigma of an impeachment, but they also saw that 
 the removal by address might be used for political and personal 
 reasons, of which one instance occurred in my own State, and they 
 
 Crobably determined that the risk of its abuse outweighed any possi- 
 le benefit which might flow from its judicious exercise. 
 They placed their courts as far as they could on the great heights 
 of justice, above the gusts of popular passion. They guarded them 
 in every possible way. They knew' that judges were human and there- 
 fore fallible. They knew that the courts would move more slowly 
 than popular opinion or than Congress, but they felt equally sure that 
 they would in the end follow that public opinion which was at once 
 settled and well considered. All this they did because all history and 
 especially the history and tradition of their own race taught them that 
 the strongest bulwark of individual freedom and of human rights was 
 to be found ultimately in an independent court, the corner stone of all 
 liberty. Their ancestors had saved the judges from the Crown. They 
 would not retrace their steps and make them subject to the anger or 
 the whim of anyone else. 
 
 They wished men to be free, 
 As much from mobs as kings, 
 From you as me.
 
 THE CONSTITUTION AND ITS MAKERS. 21 
 
 The problem which they then solved has in no wise changed. The 
 independence of the judiciary is as vital to free institutions now as 
 then. The system which our forefathers adopted has worked admi- 
 rably and has commanded the applause of their children and of foreign 
 nations, who Bacon tells us are a present posterity. Now it is pro- 
 posed to tear this all down and to replace the decisions of the court 
 with the judgment of the market place. If I may borrow a phrase 
 from the brilliant speech made recently by Mr. Littleton in the House, 
 it is intended to substitute "government by tumult for government 
 by law. 
 
 Those who advocate this revolution in our system of government 
 seem to think that a judgeshould be made responsive to the popular will, 
 to the fleeting majority of one day which may be a minority the next. 
 They would make their judges servile, and servile judges are a menace 
 to freedom, no matter to whom their servitude is due. They talk of a 
 judge's duty to his constituents. A judge on the bench has no con- 
 stituents and represents no one. He is there to administer justice. 
 He is there not to make laws, but to decide what the law is. He must 
 know neither friend nor foe. He is there to declare the law and to do 
 justice between man and man. 
 
 The advocates of the recall seem to believe that with subservient 
 judges glancing timidly to right and left to learn what voters think, 
 instead of looking steadfastly at tb.3 tables of the law, the poor will 
 profit and the rich will suffer; that the individual will win and the 
 corporation lose; that the powerful will be crushed and the weak will 
 triumph, while the sword of the recall hangs over the head of the 
 judicial Damocles. If even this were true, nothing could be more 
 fatal. A judge must know neither rich nor poor, neither strong nor 
 weak. He must know only law and justice. He must never listen 
 to Bassanio's appeal, "To do a great right, do a little wrong." But 
 the theory is in reality most lamentably false. No man fit to be a 
 judge would, with few exceptions, take office under the recall. In 
 the end the bench would be filled by the weak and the unscrupulous. 
 The weak would make decisions to curry favor and hold votes. The 
 unscrupulous would use their brief opportunity to assure their own 
 fortunes, and that assurance could come only from the rich and the 
 powerful, who would thus control the decisions. For the American 
 court we should substitute the oriental cadi, with the bribe giver 
 whispering in his ear. If a criminal happened to belong to some 
 large and powerful organization in whose interest the crime was com- 
 mitted he would have little to fear from a court where a judge subject 
 to the recall presided. We should have courts like those ruled by the 
 Camorra in the days of the Neapolitan Bourbons except that the 
 subservience of the judge would be insured by fear of the recall 
 instead of by dread of assassination. The result would be the same 
 and certain criminals would become a privileged class and commit 
 their crimes with impunity. 
 
 In one of the noblest passages of his letter to the sheriffs of Bristol 
 Edmund Burke says: 
 
 The poorest being that crawls on earth contending to save itself from injustice and 
 oppression is an object respectable in the eyes of God and man. 
 
 Without the independent judge those words could never have been 
 written, for before the independent judge alone could the poorest
 
 22 THE CONSTITUTION AND ITS MAKERS. 
 
 bring hope to contend against injustice. Judges, of course, are human 
 and therefore err. 1 know well that there have been one or two great 
 cases where the decision of the lughest court traveling beyond its prov- 
 ince has been reversed and swept away by the overwhelming force of 
 public opinion and the irresistible current of events. I know only too 
 well that we sufTer from the abuse of technicalities, from delays which 
 are often a denial of justice, and that the methods of our criminal law 
 are in many States a disgrace to civilization. But all these delays 
 and abuses and miscarriages of justice are within the reach of Congress 
 and legislatures, and these evils can be remedied by statute whenever 
 public opinion demands a reform. Their continued existence is our 
 own fault. Yet when all is said the errors of the highest courts are 
 few and the abuses and shortcomings to which I have referred can 
 be cured by our own action. In the great mass of business, in the 
 hundreds of trials which go on day by day and year by year, justice 
 is done and the rights of all protected. We may declare with truth 
 that in the courts as we have known them the poor, the weak, the 
 helpless have found protection and sometimes their only defense. 
 A mob might thunder at the gates, money might exert its utmost 
 power, but there in the courtroom the judge could see only the law 
 and justice. The safeguard of the rights and liberties of minorities 
 and individuals, of the weak and above all of the unpopular, as a 
 rule, has been found only in the court. And now it is proposed to 
 undo all this and to make the judges immediately dependent on the 
 will of those upon whom they must pass judgment. If the framers 
 of the Constitution were alive to-day, they would not find a single new 
 condition to affect their faith in an independent judiciary. They 
 would decide now, as they decided then. Are we ready to reverse 
 their judgment and open the door to the flood of evils which will 
 rush into the State as they always have rushed in when in times past 
 the courts were controlled by an outside power? 
 
 The destruction of an independent judiciary carries with it every- 
 thing else, but it only illustrates sharply the general theory pursued 
 by the makers of the Constitution. They established a democracy, 
 and they believed that a democracy would be successful; but they 
 also believed that it could succeed solely through forms and methods 
 which would not make it impossible for the people to carry on their 
 own government. For this reason it was that they, provided against 
 hasty action, guarded against passion and excitement, gave ample 
 room for the cooler second thought, and arranged that the popular 
 will should be expressed through representative and deliberative 
 assemblies and the laws administered and interpreted through inde- 
 pendent courts. Those who would destroy their work talk contin- 
 ually about trusting the people and obeying the people's will. But 
 this is not what they seek. The statement as they make it is utterly 
 misleading. That for which they really strive is to make the courts 
 and the Congress suddenly and rapidly responsive to the will of a 
 majority of the voters. It matters not that it may be a narrow, an 
 ephemeral, or a fluctuating majority. To that temporary majority, 
 which the next year may be changed to a minority, the Congress and 
 the courts must at once respond. Legislation of the most radical, 
 the most revolutionary character may thus be forced upon the 
 country, not only without popular assent but against the will of the 
 great mass of the people.
 
 THE CONSTITUTION AND ITS MAKERS. 23 
 
 The framers of the Constitution made it in the name and for the 
 benefit of the people of the United States; for the entire people, not 
 for any fraction or class of the people. They did not make the Con- 
 stitution for the voters of the United States. They recognized that 
 the popular will could only be expressed by those who voted and that 
 the expression of the majority must in the end be final. But they 
 restrained and made deliberate the action of the voters by the limita- 
 tions placed upon the legislative, the executive, and the judicial 
 branches, so that the rights of all the people might be guarded and 
 protected against ill-considered action on the part of those who vote. 
 Those who now seek to alter the fundamental principles of the Consti- 
 tution start with a confusion of terms and a false proposition. They 
 talk glibly of " the people." But they mean the voters, and the voters 
 are not the people, but a small portion of the people, not more than a 
 fifth or a sixth part, who are endowed by law with the power to 
 express what is to be regarded as the popular will. The legal voters are 
 the representatives and trustees of all the inhabitants of the country, 
 of all those under twenty-one to whom the future belongs, of all the 
 women, of all resident aliens, and of all persons not qualified to vote. 
 They are the instrument, the only practicable instrument, for reach- 
 ing an expression of the popular will ; but they are not the people as a 
 whole, for whom and for whose protection the Constitution was made. 
 It was for the protection of the people that the makers of the Consti- 
 tution made provisions to assure deliberate movement and to pre- 
 vent hasty, passionate, or ill-considered action. The purpose of those 
 who would destroy the present Constitution is to remove these safe- 
 guards and for the "people" of the Constitution substitute, without 
 check, hindrance, or delay, the will of the voters of the moment. 
 They are blind to the awful peril of turning human nature loose to 
 riot among first principles. 
 
 But they do not stop even there. Under the system they propose 
 a small mmority of the voters, who are themselves a minority of the 
 people, are to have unlimited power to compel the passage of laws. 
 A small minority will be able and, as the experience of the voluntary 
 referendum shows, will in almost every instance contrive to place 
 laws upon the statute book which the mass of the people really do 
 not desire. A small minority can force the recall of a judge and 
 drive him from the bench. The new system places the actual power 
 in the hands of minorities, generally small, always interested and 
 determined. Instead of government "by the people and for the 
 people" we shall have government by factions, with all the turbu- 
 lence, disorder, and uncertainty that the rule of factions ever implies. 
 Such a system is a travesty of popular government and the antipodes 
 of true democracy. Under the same conditions of human nature, 
 with no element of decision lacking then that we have now, the 
 framers of the Constitution established the system under which we 
 have nourished and rejected that which it is now proposed to set up 
 and which all experience had shown to be a failure. Their system 
 embodied in the Constitution has proved its efficacy. It has worked 
 well and it has been an extraordinary success. The other, burdened 
 with the failures of centuries, has always trodden the same path which 
 revolves in the well-worn vicious circle from democracy to anarchy, 
 from anarchy to despotism, and then by slow and painful steps back 
 to the high levels of an intelligent freedom and an ordered liberty. 
 
 448783
 
 24 THE CONSTITUTION AND ITS MAKERS. 
 
 Our ancestors sought to make it as impossible as human ingenuity 
 could devise to drag democracy down by the pretense of giving it a 
 larger scope. We are asked to retrace our steps, adopt what they 
 rejected, take up that which has failed, cast down that which has 
 triumphed, and for government by the people substitute the rule of 
 factions led by the eternal and unwearied champions who in the name 
 of the people seek the promotion which they lack. 
 
 Such are the questions which confront us to-day, amazing in 
 their existence under a Constitution with such a history as ours. 
 The evils which it is sought to remedy are all, so far as they actually 
 exist, curable by law. No doubt evils exist; no doubt advance, 
 reform, progress, improvements are always needed as conditions 
 change, but they can all be attained by law. There is no need to 
 destroy the Constitution, to wreck the fundamental principles of 
 democracy and of the Bill of Rights embodied in the first ten amend- 
 ments, in order to attain to an amelioration of conditions and to a 
 wider and more beneficent social state when statutes can effect all 
 and more than is demanded. It is not necessary to scuttle a noble 
 ship in order to rid her of rats; it is not imperative to burn the 
 strong, well-timbered house which has sheltered successive genera- 
 tions because there is a leak in the roof; it is only a madman who 
 would hurl down in blackened ruin a noble palace, the work and 
 care of centuries, because a stain easily erased may now and then 
 be detected upon the shining whiteness of its marble walls. 
 
 All these questions, all these reforms and revolutions so glori- 
 ously portrayed to us, it can not be said too often, are very old. 
 Their weakness is not that they are new but that they are time worn 
 and outworn. The voices which are now crying so shrilly that we 
 must destroy our Constitution and abandon ail our principles of 
 government nave been heard — 
 
 In ancient days by Emperor and clown. 
 
 They are as old as human discontent and human impatience and 
 are as ancient as the flattery which has followed sovereign authority 
 from the days of the Pharaohs to our own. 
 
 There is a familiar story, which we all heard as children, of the 
 courtiers of Knut, King of England, a mighty warrior and a wise man, 
 not destitute evidently of humor. These courtiers told the King that 
 the tide would not dare to come in against his command and wet his 
 feet. So he bade them place his chair near the edge of the sea and the 
 main came silent, flooding in about him, and you all remember the 
 lesson which the King read to his flatterers. Many kin<p have come 
 and gone since then, and those who still remain, now for the most 
 part walk in fetters. But the courtier is eternal and unchanged. 
 He fawned on Pharaoh and Caesar and from their day to our own has 
 always been the worst enemy of those he flattered. He and his 
 fellows contended bitterly in France for the privilege of holding the 
 King's shirt, and when the storm broke which they had done so much 
 to conjure up, with few exceptions they turned like cravens and fled. 
 New courtiers took the vacant places. They called themselves 
 friends of the people, but their character was unaltered. They 
 flattered the mob of the Paris streets, shrieking in the galleries of the 
 convention, with a baseness and a falsehood surpassing even those of 
 their predecessors who had cringed around the throne. Where there
 
 THE CONSTITUTION AND ITS MAKERS. 25 
 
 is a sovereign there will bo courtiers, and too often the sovereign has 
 listened to the courtiers and turned his back on the loyal friends who 
 were ready to die for him but would not lie to him. Too often has the 
 sovereign forgotten that, in the words of one of the most penetrating 
 and most brilliant of modern English essayists, "a gloomy truth is a 
 better companion through life than a cheerful falsehood." Across 
 the centuries come those dangerous and insidious voices and they 
 sound as loudly now and are as false now as ever. Thev are always at 
 hand to tell the sovereign that at his feet the tide will cease to ebb 
 and flow, that the laws of nature and economic laws alike will at his 
 bidding turn gently and do his will. And the tides move on and the 
 waves rise and the sovereign who has listened to the false and selfish 
 voices is submerged in the waste of waters, while the courtiers have 
 rushed back to safety and from the heights above are already shouting 
 "The king is dead! Long live the king!" 
 
 I have a deep reverence for the great men who fought the Revolu- 
 tion and made the Constitution but I repeat that I as little think that 
 all wisdom died with them as I do that all wisdom was born yester- 
 day. When they dealt with elemental questions and fundamental 
 principles, the same yesterday, to-day, and forever in human his- 
 tory, 1 follow them because they have proved their wisdom by their 
 success. I am not ready to say with Donne — 
 
 We are scarce our father's shadow cast at noon — 
 
 but I am more than ready; I profoundly believe that we should cherish 
 in our heart of hearts the noble and familiar words of the wise son 
 of Sirach: 
 
 Let us now praise famous men and our fathers that begat us. The Lord hath wrought 
 great glory by them through his great power from the beginning. Leaders of the peo- 
 ple by their counsels and by their knowledge of learning meet for the people; wise 
 and eloquent in their instructions; all these were honored in their generations and 
 were the glory of their times. 
 
 There be of them, that have left a name behind them, that their praises might be 
 reported. And some there be which have no memorial; who are perished as though 
 they had never been; and are become as though they had never been born; and their 
 children after them. But these were merciful men whose righteousness hath not 
 been forgotten. With their seed shall continually remain a good inheritance and their 
 children are within the covenant. 
 
 Their seed standeth fast and their children for their salses. Their seed shall remain 
 forever and their glory shall not be blotted out. Their bodies are buried in peace; 
 but their name liveth forevermore. The people will tell of their wisdom and the 
 congregation will show forth their praise. 
 
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