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 REESE LIBRARY 
 
 UNIVERSITY OF CALIFORNIA. 
 
 Accessions No. 2-/^_? J_ _ . Slielf No. 
 
 ^8- ^■S 
 
Digitized by the Internet Archive 
 
 in 2007 with funding Irom 
 
 IVIicrosoft Corporation 
 
 http://www.archive.org/details/constitutionofunOOmillrich 
 
The Constitution of the United States. 
 
 THREE LECTURES 
 
 DELIVERED BEFORE 
 
 THE ONmsm' LAW SCHOOL 
 
 OF WASHINGTON, D. C. 
 
 J *-" '-'•> 
 
 BY 
 
 Mr. Associate Justice. Miller, 
 
 Y^^ OV THE 
 
 UNIVERS 
 
 FEBRIiARY 6, 12, AND 19, 1880. 
 
 WASHINGTON, D. C. : 
 
 W. H. & O. H. MORRISON, 
 
 Law Boohellers and Publishers. 
 
 1880. 
 

 Entered according to Act of Congress, in the year 1880, by 
 
 Samuel F. Miller, 
 
 In the Office of the Librarian of Congress, at "Washington, D. C. 
 
 PftEHS or TuoMAR McGiix h Co., 
 Law Pwsterb, 
 
 WAsmnaTOM, D. ( 
 
First Lecture. 
 
 ]jt gives me great pleasure, gentlemen, to spend 
 three evenings of the little recess, or holiday, that 
 our court takes from its labors, in communing 
 with gentlemen who are in pursuit of the law. 
 As I had occasion to say to the Bar Association 
 of the city of New York, last fall was a year, 
 when I delivered the address before it, " We are 
 all lawyers, and judges do not cease to be hiw- 
 yers by becoming judges; in fact, they would be 
 very poor judges if they were not lawyers." 
 
 The subject with which I propose to occupy 
 your attention in the three discourses that I shall 
 have the pleasure of delivering before you, is 
 " The Constitution of the United Stales" I have 
 adopted that subject not because there is anything 
 in it new or fresh to you, or to any other well- 
 read class of gentlemen, but because, owing to 
 my situation on the bench of the Supreme Court 
 of the United States, I have been compelled to 
 give it very close attention, and to look at it in 
 aspects which required the best powers that I had 
 to give. 
 
4 LECTURES ON THE CONSTITUTION 
 
 It is a veiy remarkable instrument in many 
 particulars. I think I may venture to say that 
 no more important written instrument exists to- 
 day in the history of the world, as aifecting the 
 happiness of the world, outside of those which are 
 of a religious character — perhaps I might say out- 
 side of those of a divine origin. It is the subject 
 of perpetual exegesis by all the lawyers of the 
 country and by all the courts of this country, — 
 an immense number of lawyers and courts rep- 
 resenting a very large population and very ex- 
 tensive business, all of which are more or less 
 affected by this instrument which we call the 
 Constitution of the United States. 
 
 Written Constitutions are not very numer- 
 ous. Still, there have been societies of men, 
 and States and colonies, which have been gov- 
 erned, in their organic policy, by instruments 
 called charters, granted by kings, or monarchs, 
 or rulers — by whatever style they may have 
 been called — to their subjects, and designed 
 to confer rights and regulate the relations of 
 the subjects to the monarch. This instrument, 
 however, is one which comes from a different 
 source. It is one in which the people themselves 
 have undertaken to frame an organic law gov- 
 erning the relations of the whole people of the 
 
OF THE UNITED STATES. 5 
 
 United States, to a very large extent, to the Gov- 
 ernment of the United States, and the relations 
 of the States to that government, and to pre- 
 scribe, in very many cases, the limits and rules 
 of private and individual rights. Such an in- 
 strument, framed and put into language', judi- 
 ciously operative upon the affairs which it is 
 intended to govern, is a rare thing in the history 
 of the world ; and I think I may, with safety, say 
 that no instrument of such a character, so well 
 adapted to the purposes which it is intended to 
 subserve, and so successful for those purposes, 
 has ever been framed by the ingenuity of man. 
 It is therefore a subject unique in that respect, 
 to which I invite your attention. 
 
 This, however, hke all other instruments, when 
 it becomes the subject of comment and of con- 
 struction, must necessarily be looked at in the 
 light of its origin, the purposes which it was in- 
 tended to subserve, and the evils which it was 
 intended to remedy. 
 
 It would be almost enough to occupy an entire 
 course of lectures for any one to attempt to give 
 you a history of the Constitution of the United 
 States. 
 
 Probal)ly the l)est condensed history of it will 
 be found in Mr. Justice Story's preliminary 
 
6 LECTURES ON THE CONSTITUTION 
 
 and introductory chapters to his Commentaries 
 on the Constitution of the United States. I 
 will, however, state to you, in a very few words, 
 that this Constitution arose out of the condition 
 J in which the people of the United States found 
 themselves at the close of the Revolutionary 
 War. Having established their independence 
 of the Government of Great Britain, and been 
 recognized as one of the family of nations, they 
 soon found that the compact under which they 
 had achieved successfully that independence, 
 namely, the Articles of Confederation, was ut- 
 terly inefficient and incompetent to answer the 
 purpose of binding them together and conduct- 
 ing the new nation on its pathway to future 
 usefulness. Its defects were obvious, and some 
 of them you have no doubt heard before. It 
 was found that the Colonies, as they had been 
 previously called, had never really been inde- 
 pendent States or Nations. They had been sub- 
 jects of Great Britain, controlled by charters of 
 the King of England, submitting very largely to 
 the legislation of the Imperial Parliament, until 
 certain questions connected with taxation caused 
 a resistance, not to the King, but to the laws of 
 Parliament. 
 
 In the effort at resistance, thev had united to- 
 
OF THE UNITED STATES. 7 
 
 gether in a body to make that resistance suc- 
 cessful ; so tliat being a government or a nation 
 when they were free, each individual colony had 
 never been at any time a separate and inde- 
 pendent State, and yet neither of them recog- 
 nized any supremacy in any other State; and 
 the question was, what amount of supremacy 
 should they grant or yield to the common gov- 
 ernment which they were about to form. It was 
 found that that which had carried them throuo:h 
 the war in the paroxysm of patriotism necessary 
 for self-defense, was incapable for carrying on 
 a successful government after that impulse was 
 gone. 
 
 One of the evils which was most pressing, to be 
 remedied by this new organization or reorgan- 
 ization of the government, was that no taxes 
 could be successfully collected for the support 
 of the general government. The only rehance 
 during the Revolutionary War, and from 1776 up 
 to 1789, when this government was organized, 
 was a call, or request, by the Federal author- 
 ity upon the States for their proportion of 
 the taxes necessary to support the government. 
 Even during the pendency of the war, this was 
 responded to very feebly and very unequally; 
 and hence the war of the Revolution was fought 
 
8 LECTURES ON THE CONSTITUTION 
 
 on credit, and an immense debt remained to 
 be paid at its close. There was no means of 
 relief in taxing the people by the parent gov- 
 ernment. 
 
 Another evil was, that, coming to be recog- 
 nized as one of the nations of the earth, this so- 
 called central or general government had no 
 sufficient pow^ers, conceded to it by the States, 
 to conduct its affairs with foreign governments. 
 We had no capacity to make treaties except 
 on a limited class of subjects. We had no 
 means to raise armies and navies, or of pay- 
 ing the government debt; and how far each 
 State could itself negotiate wnth other nations, 
 and how soon we should be subjected, as the 
 Grecian republics were in the days of the Olym- 
 pic councils, to the influence of other nations 
 who might approach any one of the States 
 to withdraw it from the Union, nobody could 
 tell. 
 
 But perhaps of all the causes, — like some little 
 fretful thing that seems unimportant, but which 
 perpetually annoys you, — of all the causes which 
 contributed most largely to the formation of the 
 new Constitution, was the condition of trade and 
 commerce abroad, and trade and commerce be- 
 tween the States. The power of taxing all the 
 
OF THE UNITED STATES. 9 
 
 goods that passed through each State and every 
 port remained with the States. The Httle StatQi^ 
 of Rhode Island was mistress of the finest and 
 most extensive harbor or port in the United 
 States at that time — the harbor of Newport. All 
 the goods, nearly that went to the large cities 
 of New York and Boston — the foi-eign goods 
 that suppHed the markets of New England and 
 New York — nearly all of them — were imported 
 through Newport; and that little State levied 
 taxes on their importations at her own pleasure. 
 She was getting rich at the expense of her 
 neighbors and confederates, in what was then 
 nothing more than a confederacy. And one 
 result and evidence of that will be found in 
 a thing which perhaps you will all remember, 
 that the State of Rhode Island was the last State 
 which assented to the Federal Constitution, and 
 that she did not give that assent until three years 
 after it was promulgated. That was the reason. 
 She was living on the commerce of the whole 
 country and enriching her citizens at the expense 
 of those of the other States. The port of Charles- 
 ton did the same thing with reference to the 
 southern country — Georgia and North Carolina. 
 The port of Norfolk did tlie same thing with 
 reference to Virginia and Maryland ; and I am 
 
10 LECTURES ON THE CONSTITUTION 
 
 not certain but our neighboring town of Alex- 
 andria did the same tiling with reference to some 
 portion of Virginia and Maryland. 
 
 But that was not all. The trade between the 
 States was taxed heavily, and this was one of the 
 most diffi<5ult things to correct, and has been most 
 persistently pursued up to the present hour. Not- 
 withstanding fornearly one hundred years we have 
 had, in the instrument of which I am speaking 
 to you, the declaration that Congress shall have 
 power to regulate the commerce with foreign 
 nations and among the several States, there are 
 to this hour, upon the statute-books of almost 
 every State, laws violating that provision ; and 
 if that provision of the Constitution were re- 
 moved to-morrow, this Union would fall to pieces, 
 simply by the struggles of each State to make the 
 property owned in other States pay its expenses. 
 Within two weeks we have had before the Su- 
 preme Court three cases in which that point has 
 come up (and we will have several more of 
 them). One of them was from Pennsylvania, 
 in which I had the honor to deliver the opinion 
 of the court, in which that State declared that 
 auctioneers should pay a license-tax of such 
 a percentage upon their sales of all goods not 
 produced in the State of Pennsylvania ; which you 
 
OF THE UNITED STATES. 11 
 
 see at once is a discrimination and a tax upon 
 all goods, sold at auction, produced in sister 
 States. And it is not long since we had a case 
 coming from the city of St. Louis, where an 
 ordinance of that city, authorized by the State of 
 Missouri, imposed a tax upon all peddlers except 
 those who sold goods produced in the State. And 
 the thing is infinite. We have now pending be- 
 fore lis, and undecided, a question that was argued 
 a month ago, in which the city of Baltimore, 
 authorized by a statute of the State of Maryland, 
 imposed a wharfage-duty upon all produce land- 
 ing at a wharf of the city, other than the produce 
 of the State of Maryland ; so that the fish and 
 other produce of Virginia, Pennsylvania, and 
 other States, had to pay a tax for landing, while 
 the produce of Maryland had none. * 
 
 It was this tendency of each State to make a 
 grabbing business of supporting its government 
 out of taxes upon the property of other States, or 
 on the produce which must go through one State 
 to another, that more than any other compelled 
 the formation of the present Constitution. 
 
 Now, the importance of understanding this fact 
 as one of the reasons for forming the Constitu- 
 
 *The court has since decided the law to be imconstitu- 
 v^ OF TlJE ^r 
 
 UNIVERSITY 
 
12 LECTURES ON THE CONSTITUTION 
 
 tion, is quite apparent. A key to the construc- 
 tion of a statute or a Constitution, is to inquire 
 what was the evil to be removed, and what rem- 
 edy did the Constitution propose ; so that when 
 any of these questions come up, requiring judi- 
 cial construction of a clause of the Constitution, 
 we go back to ascertain the evil that was in- 
 tended to be remedied. 
 
 The Articles of Confederation were a rope of 
 sand ; the nation was only a nation in name; and 
 when the framers of the Constitution came to 
 their work with a full view of the importance of 
 it and of the evils to be remedied, they declared 
 that this instrument which they framed was no 
 longer to be a rope of sand, but that they were 
 framing an instrument and instituting a govern- 
 ment for common defense and general welfare ; 
 and they used language no longer speaking for 
 the States individually, who might struggle with 
 each other, but they said : " We, the people of 
 the United States, do ordain this instrument to 
 be our Constitution." It was then that a na- 
 tion was born. 
 
 Of course, when these delegates all came to- 
 gether, they must have had among them a great 
 deal of the philosophy of government. Probably 
 no nation or people, as young as ours then was. 
 
OF THE UNITED STATES. 13 
 
 ever had as many men thoroughly versed in that 
 philosophy — as many men who had given vigor- 
 ous attention, educated and trained attention, to 
 the science of government, as were to be found 
 in the United States at the time this instrument 
 was to be made. And, fortunately, society was 
 in a condition when personal aspirations and ma- 
 lign influences were not brought to bear — proba- 
 bly could not be brought to bear, from the fact 
 of the wisest and best men being sent forward to 
 make that Constitution. In that we have reaped 
 the benefit of the good fortune of our ancestors. 
 In considering the forms of government, we 
 find that there are three prim^iry forms : the mon- 
 archy, the aristocracy, and the democracy. I am 
 not here to tell you what a monarchy is, or what 
 either of these is. You know that a monarchy, 
 pure and simple, is the despotic government of 
 one man. An aristocracy is perhaps less des- 
 potic, but clearly arbitrary — a government of the 
 leading men or spirits of a country, whether they 
 be gentlemen or hereditary noblemen — not one, 
 but many — but still professing to act by the 
 power of the people ; a beneficial power and in- 
 fluence, acquired either by inheritance or by con- 
 quest; and this is called an aristocracy. A de- 
 mocracy, pure and simple, is said to be a govern- 
 
14 LECTURES ON THE CONSTITUTION 
 
 ment by all the people. There have been very 
 few of these governmental forms, simple and 
 pure, in the history of the world ; perhaps in re- 
 gard to monarchy there have been, and possibly 
 always will be, monarchs who are absolute, at 
 least who are limited by no acknowledged re- 
 straint on their authority. In regard to aris- 
 tocracies, they have been but few; and probably 
 the Venetian government, which was carried on 
 with great prosperity for three or four hundred 
 years by a set of hereditary nobles and success- 
 ful merchants, was the purest example of aristoc- 
 racy that the world has ever seen. England 
 was, a century ago, more of an aristocracy 
 than anything else. But a pure democracy 
 is almost unknown, from the difficulty of hav- 
 ing all the people participate in the functions 
 of the government; because these functions not 
 only require the processes of government, but 
 they include the process of making laws and the 
 process of administering those laws. Such was 
 the democracy of Athens, probably the only 
 highly-civilized form of democracy that ever ex- 
 isted — a government in wdiich the common peo- 
 ple, from the streets and everywhere, met and 
 decided lawsuits. Questions of the right of prop- 
 erty ; questions of life and death of the individ- 
 
OF THE UNITED STATES. 15 
 
 iial ; questions of banishment and censure of their 
 officers; questions of the proprietorship of land; 
 questions of the election of the chief officers; 
 questions of making war and peace, — all were 
 submitted in that democracy to the people that 
 could gather together in the pubhc buildings of 
 that little city of Athens. But those of you who 
 have read its history know that it w^as a perpetual 
 scene of turmoil ; how little security there was 
 for life when they made their best men drink the 
 hemlock, and banished their best generals for a 
 year and perhaps for life. While it stimulated 
 the intellect of that race and made them prize 
 human effort directed in channels of imagination, 
 of science, and of literature, it still was far from 
 being a place where personal rights were respect- 
 ed, and where any man of modern times would 
 be willing to make a home. 
 
 But our forefathers, when they got together, 
 did not adopt either of these forms, though it is 
 common to say that ours is a government of the 
 democracy. In the true sense of a democracy, 
 by which all the acts of the government are per- 
 formed by all the people, it is about as far from 
 a democracy as any other civilized government 
 that we know of. But they determined that 
 the people should be felt, and they made what 
 
16 LECTURES ON THE CONSTITUTION 
 
 we call a composite government — a representa- 
 tive republican government — a government in 
 which the powers that belong to all sovereignties 
 were divided and placed in different depositories ; 
 and the question of that division was one of 
 very great interest. The proper division of 
 these powers has since come to be recognized 
 and assigned in all good governments, and that 
 division is into the executive, legislative, and 
 judicial branches or departments. By executive, 
 is meant the branch which enforces the law ; by 
 legislative, is meant the branch which enacts the 
 law; and by judicial, is meant the branch which 
 administers the law, as regards both public and 
 private rights, as between the citizens themselves 
 and betw^een the citizens and the government. 
 You will observe, however, in this Constitution, 
 that the lines which mark that division are not 
 perfect. Perhaps it is impossible that they should 
 be perfect. Perhaps it is desirable that they 
 should be more perfect than they are. As re- 
 gards the executive branch of the government, 
 for instance, that was not completely vested in 
 the President; for we find that the Senate was 
 required to give its assent to all treaties made by 
 the President before they were valid. The Sen- 
 ate is also required to confirm all higher uomina- 
 
OF THE UNITED STATES. 17 
 
 tions to office before they become valid appoint- 
 ments. So that these two great functions, which 
 are usually classed as executive functions of the 
 government, — appointment to office and making 
 treaties, — are divided, to some extent, in their re- 
 sponsibility and in the forms necessary to give 
 them efficacy, between the President of the United 
 States, who is the executive, and the Senate of 
 the United States, which is one of the branches 
 of the legislative department. 
 
 So, also, declaring war and making peace, 
 which in all other respects is held to be an ex- 
 clusively executive function, and which in the 
 popular government of England remains in the 
 Crown alone — the Crown recently having de- 
 clared war without asking Parliament and having 
 made peace in the same manner, and that being 
 the common form of doing the thing — is a func- 
 tion in which the executive and legislative 
 branches of our government participate. The 
 Constitution of the United States says that Con- 
 gress shall have power to declare w\ir; and the 
 President takes part in that matter only as he is 
 part of the legislative branch. So when you 
 come to the legislative branch of the govern- 
 ment, you will find that that is not separate 
 from the executive, because our laws require 
 
18 LECTURES ON THE CONSTITUTION 
 
 that they shall be signed by the President. He 
 thus becomes an important part of the legislative 
 department of the government; and if he does 
 not choose to sign them he usually sends them 
 back with his reasons and objections, which is 
 commonly called the veto, and it then requires 
 two-thirds of the legislative houses to enact them 
 into laws over that veto. So that the legislative 
 power is not confided wholly to the legislative 
 branch. 
 
 Perhaps the judicial power is more nearly left 
 perfect in the hands of the judiciary than any 
 other, but not wholly so ; for the power of fram- 
 ing impeachments and trying them, which is 
 eminently a judicial function — as much so as it 
 is to indict a man and try him for murder — we 
 find belongs wholly and exclusively to the two 
 branches of the legislative department. The 
 House of Kepresentatives finds the impeachment, 
 and the Senate tries it. 
 
 But, after all,, those are only exceptions ; and 
 it remains true, that for general purposes, and 
 very useful purposes, the best feature of this 
 Constitution is that it does make this substantial 
 separation of power among these three depart- 
 ments. , 
 
 These departments, under our form of gov- 
 
OF THE UNITED STATES. 19 
 
 ernment, are co-ordinate in dignity. Neither/ 
 of them is intended, by the theory of our ConJ 
 stitution, to be subjected to the other. Tha 
 President cannot be compelled to make a treat}! 
 or appoint anybody to office that he does not 
 want to. The legislature cannot be compelled 
 to pass any laws, and the legislature alone can 
 pass laws. The judiciary alone can construe the 
 laws and enforce the laws by judgments of the 
 courts. In the case of Dodge v. Woolsey, in 18 
 Howard, Mr. Justice Wayne has advanced this 
 idea in language so much better than any I can 
 use, that I give his own words ; 
 
 ''The departments of the government are legislative, 
 executive, and judicial. They are co-ordinate in degree 
 to the extent of the powers delegated ,to each of them. 
 Each in the exercise of its power is independent of the 
 others; but all rightfully done by either is binding upon 
 the others. The Constitution is supreme over all of them, 
 because the people who ratified it liave made it so." 
 
 When the Constitution was first framed it was 
 received by a great many thinking people with a 
 great deal of distrust. An examination of the 
 history of the conventions of the States which 
 were called to ratify and confirm that instru- 
 ment, without which it would have had no effi- 
 cacy, will show that it was fiercely assailed, and 
 the debates uixMi^^tfvpi rQ£Kird4o its adoption in 
 
 v^ OF THE 'A 
 
 UNIVERSITY 
 
20 LECTURES ON THE CONSTITUTION 
 
 several of the States showed that the issue was 
 doubtful. 
 
 It is well, perhaps, to consider for a moment 
 some of the objections to that instrument in 
 the light of ninety years' experience. One of 
 the greatest was that it conferred too much 
 power upon the central or Federal government, 
 and curtailed too largely the powers of the State 
 govei-nments. You must remember that these 
 colonies had just been emancipated from the 
 parent government. They had worked together 
 for a short time, and not very harmoniously. 
 Each man felt that in his own State he had a 
 larger interest than he had in the welfare of all 
 tlie States ; and it is one of the most creditable 
 and remarkably things that the superior knowl- 
 edge and influence of a few great minds were 
 able to overcome these prejudices and enact that 
 Constitution into a form of government. But 
 several of the States, in the act of adopting it, pro- 
 posed amendments to be made under the provis- 
 ion in that instrument for amendments ; and with- 
 in two years after it was ratified Congress passed 
 and proposed to the different States thirteen 
 amendments to that instrument, eleven of which 
 were ratified by the requisite number of States 
 to make them part of the Constitution. In those 
 
OF THE UNITED STATES. 21 
 
 amendments, when you look at them carefully, 
 you will see this distrust of the power of the cen- 
 tral government, and this desire to protect the 
 States from being overwhelmed and annihilated 
 by this power. That fight — that contest, I 
 should rather say — has gone on, I might say, to 
 the present time. I would be glad to say that 
 with the recent war it was settled ; but while it 
 has undergone various discussion, it is not prac- 
 tically settled. But it is sufficient to say — I think 
 I can venture to say ; others may disagree with 
 me — that the experience of ninety 3'ears under 
 this government has shown that danger to the 
 perpetuity of government, danger to the people 
 of this country, is not in the central power, and 
 was not in the central power, but was in the 
 power of the States. [Applause.] 
 
 Another objection, second in importance in 
 the minds of those who were not favorable to 
 that Constitution, was the power of the exec- 
 utive. It was said to be inconsistent with the 
 genius of the government whic^ we were es- 
 tablishing, that any one man should, for the 
 period of four years, exercise ttie extraordinary 
 power which that instrument vested in the Pres- 
 ident of the United States. It was said that the 
 appointment of all the officers of the Federal 
 
22 LECTURES ON THE CONSTITUTION 
 
 government, the distribution of all its patronage, 
 the control of its army and its navy, would, in 
 process of time, enable some man to build up a 
 power which could not be resisted; that some 
 man would arise who, by that power and with 
 that inclination, would destroy the really demo- 
 cratic features of our government, and establish 
 a monarchy in its place. 
 
 Now, of all the delusions, of all the mistakes 
 which our ancestors made, that seems to have 
 been at once the most likely to be made, yet 
 which has practically turned out to be most un- 
 true. 
 
 It is my deliberate opinion that, of all the three 
 branches of government, the executive branch has 
 been in time, under the construction given that 
 instrument and its practical administration, most 
 shorn of the powers which the Constitution grant- 
 ed it. The President of the United States for 
 the first forty or iifty years did practically nomi- 
 nate all the officers; he selected his Cabinet, a 
 few private friends, occasionally a member of 
 Congress or two, making suggestions. But, with- 
 in the memory of many men around me, the 
 time arrived when the President (as the gentle- 
 man who has travelled around the world with 
 General Grant reports him as saying) but regis- 
 
OF THE UNITED STATES. 23 
 
 ters tbe edict of members of- Congress in appoint- 
 ments to office; tbat is to say, in tbe function 
 about wbicb mainly tbe executive is employed, 
 he bas become subjugated to the legislative 
 branch of the government; and of all the de- 
 lusive ideas, of all the fallacies that ever entered 
 the brain of anybody in this world, the most 
 delusive and fallacious is the idea that any exec- 
 utive, that a Jackson or a Grant, or anybody in 
 this country, will ever make himself a perpetual 
 dictator in our time and generation, or in gen- 
 erations to come. [Applause.] 
 
 The branch of the government which has 
 grown in its powers, which perhaps a sagacious 
 man mfght have seen would so grow, is the legis- 
 lative department of the government. Coming, 
 as it does, more immediatel}' from the people, at 
 least one branch of it, and all of it representing 
 either tbe States or the people, who look to their 
 Senators and to their members as representing 
 them in all their legislation and all that looks 
 like legislation, and a great deal that is not legis- 
 lation, — the people tolerate in these, their repre- 
 sentatives and members, what they will not tole- 
 rate in the executive, what they will not tolerate 
 in the judicial department of the government; 
 because they say, ''Jg^e^tfeB^^^tfeaUfthey do badly 
 
24 LECTURES ON THE CONSTITUTION 
 
 this year, we can turn them out next, and we are 
 not afraid of them." But this has been a very 
 unfortunate sentiment. I speak it with due def- 
 erence to a co-ordinate branch of the govern- 
 ment. I have no doubt that the dangers in our 
 form of government are greatest in the legisla- 
 tive branch of it. They are extending their 
 borders, and they are making broad their phy- 
 lacteries in every direction. They pass laws 
 sometimes which are unconstitutional, and they 
 assei't powers which are executive and juchcial 
 in their nature and character. 
 
 The judicial branch of the government is, of 
 all others, the weakest branch. It has no army; 
 it has no navy; it has no press; it has no officers 
 except its marshals, and they are appointed by 
 the President and confirmed by the Senate; and 
 the marshals that we send our processes to can- 
 not be removed by us, but they may be removed 
 any day by the executive. The clerks whom 
 they permit us in some form or other to appoint, 
 have salaries and compensations regulated by 
 the legislature ; and a clerk who gets $20,000 in 
 fees, pays all but |3,500 into the Treasury of the 
 United States. We are, then, so far as the ordi- 
 nary forms of power are concerned, by far the 
 feeblest branch or department of the govern- 
 
OF THE UNITED STATES. 25 
 
 ment. We have to rely — I beg pardon for using 
 the personal prononn in this discussion — but the 
 judiciary have to rely on the coniidence and re- 
 spect of the public for their weight and influence 
 in the government ; and I am happy to say that 
 the country, the people, and the other branches 
 of the government have never been found want- 
 ing in that respect and in that confidence. It is 
 one of the best tributes to the American nation — 
 a tribute which it deserves above all others even 
 of the Anglo-Saxon race — a tribute which can be 
 paid to no other race like the Anglo-Saxon ^ 
 race — that they submit to the law as expounded 
 by the judiciary. [Applause.] 
 
 Under all the excitement of wealth ; of money; 
 of the contest of raih'oads; of political existence — ^ 
 everything which can be got before the court — 
 everything which can come fairly within judicial 
 cognizance — our people seem to think is safe. 
 And whatever may be said or felt about the 
 recent trouble in the State of Maine, there is no 
 grander phenomenon to be found in the history 
 of this country than a l)ody calling itself a legal 
 legislature and government quietly laying down 
 its functions and dispersing at the mere opinion 
 of a court that they were not the proper govern- 
 ment. [Applause.] 
 2 
 
26 LECTURES ON THE CONSTITUTION 
 
 Of course, gentlemen, there are nice questions 
 between these various departments of the govern- 
 ment as to the Hues of demarkation ; and it has 
 always been an anxious question, and always must 
 be one, where there is a conflict in the claims of 
 these branches of the government. While it is 
 the duty of the court to construe the great instru- 
 ment, the Constitution, whenever it shall come 
 before it in a fair judicial proceeding, and it can 
 construe it in no other way, — for it is a dehision, 
 it is a mistake, the idea that the Supreme Court 
 of the United States w^as created with one of its 
 special functions to interpret and construe that 
 instrument, — I say while, however, it is the spe- 
 cial function of the courts to construe the Consti- 
 tution in a judicial proceeding, with parties prop- 
 erly before them, it is equally the duty of each 
 member of Cono-ress and of the executive to 
 make that construction for himself when he is 
 called to act within the sphere of his duty. And 
 I think myself I have changed one of my beliefs 
 of early life, when I used to think that when 
 a Marshall and his compeers had decided that 
 the Bank of the United States -was a finan- 
 cial institution authorized by the Constitution 
 of the United States, the legislative and execu- 
 tive branches should also concede that fact. I 
 
OF THE UNITED STATES. 27 
 
 am prepared to admit, that while thev are bound 
 to consider that in that particular — that is, its 
 execution of the law as betw^een the parties — all 
 the other branches of the government nmst yield, 
 yet when it comes to the conscience of any mem- 
 ber of^ Congress or any executive to say, " Can I 
 sign a bill ?" or " Can I vote for a measure ?" it 
 is for him- to decide, on the best lights he has, 
 whether the act he is going to do is within the 
 constitutional power of the body of wdiich he is a 
 member. Therefore you see the difficulty in get- 
 ting a settled construction of this instrument. 
 And since every branch of the government, when 
 called on to act originally, is bound to act on tlie 
 judgment it forms of its own powers, you can 
 understand the reason that for eighty or ninety 
 years the question of the relations of the States 
 to the Federal government should remain an 
 open and undecided question. 
 
 We are, however, getting a body of decisions 
 of recognized principles. The instrument is being 
 construed by the judicial branch more than the 
 others, but largely by all others, in the light of the 
 events which have arisen to test it. The construc- 
 tion which was put upon the Constitution during 
 the recent insurrection — the powers that could be 
 exercised in such an emergency by the President, 
 
28 LECTURES ON THE CONSTITUTION 
 
 by the War Department, by the Legislature, by 
 the Judiciary, all have been tested — all have un- 
 dergone investigation; and while no man can 
 say that all the decisions have been correct, be- 
 cause they have been varying, it must, in the 
 light of any impartial mind, be clear that we are 
 completing a construction and are deciding a 
 great many things that will remain forever, with 
 regard to the Constitution. 
 
 It is very desirable that it should be so. All 
 loose construction of authority is dangerous ; all 
 construction of authority too limited to serve the 
 purpose for which it is given is injurious. You 
 must look at that instrument in the light of the 
 purposes which it was intended to answer; in 
 the light of the evils it was intended to remedy; 
 in the light of the fact that we w^ere a dissolving 
 people, and the instrument was intended to bind 
 us anew forever; in the light of the fact that the 
 government was going to pieces for want of power 
 to protect itself, and we must consider that one 
 of the purposes of the Constitution was to give 
 the government that power; in the light of the 
 fact that the Confederacy — the government un- 
 der the Articles of Confederation — could only 
 request the States to do a great deal that was 
 necessary to carry on the Federal government, 
 
.t:.3 
 
 OF THE UNITED STATES. 
 
 
 and it was desirable to give the new governBtiejat <P\. 
 the power of operating directly upon the pe<)|>^i^ ^ 
 without going through the instrumentalitj'of tlla^__^ 
 States, and that instead of laws which before that 
 Constitution was made were intended to have 
 effect through the State legislatures, the govern- 
 ment should now have direct effect through the 
 legislation of Congress — the action of the legis- 
 lative branch — and the judiciary, upon the peo- 
 ple themselves, without the consent, and even 
 against the Welshes, of the States, if it were nec- 
 essary. 
 
 In all these ways, when you come to construe 
 this instrument like a remedial statute, like a con- 
 tract between individuals, it must be construed 
 in the light of the times in which it was made — 
 of the evils to be remedied, of the good to be 
 effected, and, above all, in the light of the idea 
 that it was made to create a perpetual govern- 
 ment of the people, among the people, and by 
 the people. 
 
80 LECTURES ON THE CONSTITUTION 
 
 Second Lecture. 
 
 On last Friday evening, gentlemen, you will 
 remember that I closed my remarks by some 
 observations on the division which the Constitu- 
 tion made of the powers to be exercised by the 
 national government into the three departments, 
 legislative, executive, and judicial. As students 
 of law, I take it for granted that the branch of 
 the government in which you are most interested, 
 or at least in which you are most interested in 
 having an exposition of its powers and duties, is 
 the judicial branch, and that is the subject on 
 which I propose to address you this evening. 
 
 After the manner of the clergy, I presume 
 that the best thing I can do is to read you m}^ 
 text ; and as the whole chapter is not a very 
 long one, although a very important one, I will 
 read you the third article of the Constitution. 
 That instrument devotes one article to the legis- 
 lative, one to the executive, and one to the judi- 
 cial branch, and these are the main articles of the 
 Constitution. There are then some provisions 
 
OF THE UNITED STATES. 31 
 
 establishing private rights; some provisions con- 
 cerning the powers of the two houses ; but the 
 main body of the Constitution is to be found in 
 the three articles. The judicial article comes 
 third and last. It says : 
 
 "• The judicial power of tlie United States shall be vested 
 in one Supreme Court, and in such inferior courts as the 
 Con(?ross may from time to time ordain and establish. 
 The iud*?es, both of the supreme and inferior courts, shall 
 hold their offices durinj^good behavior, and shall, at stated 
 times, receive for their services a compensation, which 
 shall not be diminished durino^ their continuance in office. 
 
 "Sec. 2. The judicial power shall extend to all cases, 
 in law and equity, arising under this Constitution, the 
 laws of the United States, and treaties made, or which 
 shall be made, under their authority ; to all cases affect- 
 ing ambassadors, other public ministers, and consuls; to 
 all cases of admiralty and maritime jurisdiction; to con- 
 troversies to which the United States shall be a party; to 
 controversies between two or moie States; between a 
 State and citizens of another State ; between citizens of 
 different States; between citizens of the same State claim- 
 ing lands under grants of different States, and between a 
 State, or the citizens thereof, and foreign States, citizens, 
 or subjects. 
 
 "In all ca?:es affecting ambassadors, other public min- 
 isters, and consuls, and those in which a State shall be 
 party, the Supreme Co«n-t shall liave original jurisdiction. 
 In all the other cases before mentioned, the Supreme Court 
 shall have appellate jinisdiction, both as to law and fact, 
 with such exceptions and under such regulations as the 
 Consfress shall make. 
 
82 LECTURES ON THE CONSTITUTION 
 
 "The trial of all crimes, except in cases of impeach- 
 ment, sliall be by jury, and such trial shall be held in the 
 State wliere the said crimes shall have been committed ; 
 but wlien not committed witlnn any State, tlie trial shall 
 be at sncli place or places as the Congress may by law 
 have directed. 
 
 "Sec. 3. Treason against the United States shall con- 
 sist oidy in levying war against them, or in adhering to 
 their enemies, giving them aid and comfort. 
 
 " No person shall be convicted of treason unless on the 
 testimony of two witnesses to the same overt act, or on 
 confession in open court. 
 
 '•The Congress shall have power to declare the punish- 
 ment of treason ; but no attainder of treason shall work 
 corruption of blood, or forfeiture except during the life 
 of the person attainted." 
 
 Now, I propose to turn your attention first to 
 the second section : 
 
 "The judicial power shall extend to all cases, in law 
 and equity, arising under this Constitution, the laws of the 
 United States, and treaties made, or wliich shall be made, 
 under their authority." 
 
 The first thing that justifies or requires any 
 criticism is on the words "judicial power." 
 What is judicial power? It would not do to 
 answer that it is power exercised by the courts, 
 because one of the very things to be determined 
 is what power the courts may exercise; and it is 
 very difficult to find any exact definition made 
 to hand. I know it cannot be found in any of 
 
OF THE UNITED STATES. 33 
 
 the old treaties, or any of the old English au- 
 thorities or judicial decisions, for a very obvious 
 reason, that while in a general way they had this 
 division between the legislative and judicial 
 power, yet their legislature was in the habit of 
 exercising a very large part of the judicial power 
 of the country. The House of Lords was often 
 the court of appeals, and they were in the habit 
 of passing bills of attainder and of enacting con- 
 victions for treason in Parliament. The judicial 
 power is defined, perhaps, better in some of the 
 reports of our own courts, especially the Supreme 
 Court of the United States, than in any other 
 place, because it has oftener been the subject of 
 comment, oftener necessary to be decided, in that 
 court, than anywhere else. The judicial power 
 is the power of a court to decide and pronounce 
 a judgment and carry it into effect between per- 
 sons and parties who bring a case before the 
 court for judicial decision. And hence, you see, 
 after the words "judicial power," the language 
 goes on, "shall extend to all cases" of a partic- 
 ular character, describing what character. So 
 that, before there can be any proper exercise of 
 the judicial po\yer, there must be "a case" pre- 
 sented in court for its action. A case implies 
 parties ; a case implies an assertion of rights ; a 
 
34 LECTURES ON THE CONSTITUTION 
 
 case implies a wrong to be remedied ; and our 
 decisions in the Supreme Court of the United 
 States, and in the other various courts, are full 
 of definitions of what a case is. I will read some 
 of them very shortly, as I find them in Mr. Pas- 
 chal's "Annotated Constitution," a very valuable 
 work in giving you the authorities to which you 
 had better refer, so that you may see the whole 
 of their leading features. I am compelled to 
 omit much in the short time to which I am lim- 
 ited in these lectures. 
 
 "A case" — says Chief Justice Marshall, in the 
 case of Osborn against the United States Bank, 
 9th Wheaton, p. 319 — "a case arises, within the 
 meaning of the Constitution, when any question 
 respecting the Constitution, treaties, or laws of 
 the United States has assumed such a form that 
 the judicial power is capable' of acting upon it." 
 
 And in this connection, it is proper, I think, 
 that I should endeavor to. correct a very erro- 
 neous impression that prevails with regard to 
 the powers of the Supreme Court of the United 
 States as the expounder of the Constitution. I 
 have seen it asserted, even in popular treatises, 
 in public speeches, and in political harangues, 
 that the Supreme Court of the United States is 
 the final expounder, and that it \Yas made for the 
 
OF THE UNITED STATES. 35 
 
 purpose of expounding the Constitution, and that 
 one of its priraarj- functions is to do that. But 
 it has been over and again held in our court that 
 all we can do in the way of expounding the Con- 
 stitution is to decide the questions in which the 
 Constitution may be involved in a suit between 
 proper parties. To be sure, in some cases these 
 parties have been very dignified ones. They 
 have been the United States; they have been 
 States suing each other in our courts ; but oft- 
 ener than otherwise — I should say, nine times 
 out of ten that the court has been called upon to 
 construe the Constitution of the United States — 
 it has been a question of right between private 
 individuals, in which the validity of a law, or 
 of a right asserted by one side and denied by 
 the other, has to be settled by the Constitu- 
 tion of the United States. So that we only do 
 in our way in a higher position — as being the 
 last court to which such questions can be 
 brought — what every court in the United States 
 has to do, whether it is a State court, a Federal 
 court, or any other court. We only decide such 
 questions as they arise in the progress of ordi- 
 nary litigation. 
 
 This, then, is what I have to say upon the 
 subject of cases, as the Constitution is affected. 
 
3b LECTURES ON THE CONSTITUTION 
 
 with regard to the word " cases." " The judicial 
 power shall extend to all cases, in law and in 
 equity, arising under this Constitution, the laws 
 of the United States, and the treaties made, or 
 which shall be made, under their authority." 
 That is to say, the judicial power of the Federal 
 government extends to all cases where a right 
 exists under the Constitution, a right under the 
 laws of the United States which are made in 
 accordance with the Constitution, or a right un- 
 der a treaty which shall be made under the au- 
 thority of the Constitution. 
 
 That class of cases the Federal power extends 
 over, covers them, and they come within its ju- 
 risdiction. "All cases, in law and in equity." 
 There is a separate clause with regard to ad- 
 miralty, which I will speak of presently. It 
 must be with the exception of admiralty "in 
 law or in equity," — and an attempt has been 
 made to exclude a very large class of cases aris- 
 ing in the State courts, and in other courts, which 
 were of an anomalous character ; remedies given 
 by peculiar modes of proceeding — summary rem- 
 edies by attachment, and summary proceedings 
 at variance with the common law, which were 
 therefore said not to be suits at law, and which 
 yet did not come under the head of equity juris- 
 
OF THE UNITED STATES. 87 
 
 prudence. But the decisions of the Supreme 
 Court of the United States are abundant to the 
 effect that, with the exception of admiralty, all 
 the modes of procedure for the assertion of rights 
 must be ranged under the one class or the other, 
 of law or equity, within the meaning of that 
 clause of the Constitution, Equity is a limited 
 jurisdiction which has grown up since the com- 
 mon law, which in some sense is a restriction of 
 and departure from the common hiw. There is 
 not much difhculty as to what are cases in equity ; 
 and I have no doubt you have an able professor 
 who has told you, or will tell you, what is equity 
 jurisdiction. It is sufficient to say that the Fed- 
 eral courts have held that all the cases that are 
 neither admiralty nor equity are, within this 
 clause of the Constitution, cases at law. Indeed, 
 the Supreme Court have held — the}' have been 
 compelled to hold, in regard to the improve- 
 ments, I will venture to say, in the modes of pro- 
 cedure which have been adopted by the codes of 
 the various States, in most of which equity and 
 law have been consolidated, and in reference to 
 many statutes giving new rights, new modes of 
 procedure, new i-emedies — the Supreme Court 
 have been compelled to hold that, when the Fed- 
 eral courts come to administer those rights and 
 
38 LECTURES ON THE CONSTITUTION 
 
 those remedies, thev must rano-e them on the 
 dockets of those courts on the equity side, or on 
 the law side, as the nature of the right asserted, 
 or of the remedy given, may require. We 
 do this as equity is understood and was under- 
 stood in the English courts at the time of the 
 Revolution ; and we have held that in the Fed- 
 eral courts no action of the States, no statutes 
 of the States, no laws of the States, or rules 
 which have heen adopted at law or in equity 
 in State courts — that none of them can abolish 
 the separate and distinct equity jurisdiction of 
 the Federal courts; and that wherever a case 
 is, in its nature, one which belongs to the equi- 
 table jurisdiction of the courts, it must be tried 
 on the chancery side of the Federal court which 
 has taken charge of it. One of the neces- 
 sary distinctions in that regard is, that another 
 provision of the Constitution declares that in all 
 suits at law the value of which exceeds twenty 
 dollars, every one shall have the right of trial by 
 jury, and the right of trial by jury is no part of 
 the system of equity jurisprudence; so that the 
 Federal courts have been compelled to keep 
 separate and distinct, cases at law and cases in 
 equity. 
 
 "The judicial power shall extend to all cases, 
 
OF THE UNITED STATES. 39 
 
 ill Uiw and equit}', arising under this Constitu- 
 tion, the laws of the United States, and treaties 
 made, or which shall he made, under their au- 
 thority." That is to say, a ease arises under the 
 Constitution whenever some man's constitutional 
 right is denied to him ; some right which this in- 
 strument, gives him — right of property, right to 
 liberty, right to vote — whatever right he can 
 trace under this Constitution. That is a right, 
 which, if it is impinged, or denied, or delaj'ed, he 
 can bring into the courts of the United States by 
 virtue of that provision of the Constitution. 
 
 And so of the laws of the United States: "all 
 cases arising under the laws of the United States." 
 Now% the Constitution itself is a very general 
 instrument. The rights which it confers are in 
 very general language; but these rights, these 
 duties, these obligations, have been put into full 
 operation — have been defined and perfected by 
 statutes which are called laws of the United States. 
 Whenever, therefore, an individual has a claim 
 or a right under an act of the United States 
 which he can enforce, which can only be en- 
 forced, or which he seeks to enforce by the judi- 
 cial power, the place to seek that power is in 
 some of the judicial departments or branches of 
 the United States. 
 
40 LECTURES ON THE CONSTITUTION 
 
 *'The treaties made, or wblcb shall be made, 
 under tbeir autbority." It is proper tbat I sbould 
 make some quaUfication in regard to the word 
 *' treaties." A treaty always means a compact or 
 convention between two independent nations or 
 governments. Independence is necessary, at 
 least quasi; some degree of independence is neces- 
 sary in order tbat the treaty may exist between 
 the parties who make it. So tbat, so far as the 
 treaty itself is a national obligation to be enforced 
 by the action of the States who have made it, by 
 war, or by negotiations, or by modification, or 
 by a[)peals to the State, the courts have nothing 
 to do with it, and the courts must follow and 
 abide by what the government proper does upon 
 that subject — what, in the language of the Su- 
 preme Court of the United States, we call the 
 political branches of the government having 
 charge of that relation. 
 
 But a treaty may be the foundation of a private 
 right, and then it becomes a subject of judicial 
 action, as any other private right does. An in- 
 stance occurred in the Supreme Court within the 
 last six or eight weeks. There are treaties be- 
 tween the United States and all or nearly all 
 European governments concerning the right to 
 inherit land by aliens. A man who comes from 
 
OF THE UNITED STATES. 41 
 
 a European country here, until he hecomes nat- 
 urahzed, is an ahen. He may hve here and die 
 here, and have children here, bnt he is an alien. 
 An aUen by the common law, by the prevalent 
 law, could not inherit real estate, and when he 
 died it could not go to his children ; his father 
 could not take it, he beinsj an alien. The most 
 of the States of the Union have passed laws to 
 remedy that evil, but some of those laws have 
 been imperfect, and many have passed no laws at 
 all. But the United States Government has en- 
 tered into treaties because there were so many 
 aliens, such a very large proportion of our popu- 
 lation are emigrants from these countries, who 
 come here and do business, acquire property, 
 and never take out naturalization papers; and 
 since it has not been shown that Congress has 
 any power over the subject, our government 
 has entered into treaties with foreign nations by 
 which these men can inherit the property of their 
 fathers. 
 
 jS^ow, we had a case from the State of Virginia 
 the other day, in which the law of Virginia had 
 failed to conform itself to this treaty. The proper 
 authorities of the State of Virginia had seized 
 the dead man's estate, and had instituted pro- 
 ceedings in the nature of what we call escheat. 
 
42 LECTURES ON THE CONSTITUTION 
 
 which is a process by which property that does 
 not belong to anybody else goes to the govern- 
 ment; and in their proceedings they disregarded 
 the rights of this man, and hjs case was brought 
 under that provision of the Constitution to our 
 court, and we held that he was entitled to the 
 property by virtue of the treaty. That was a 
 case arising under a treaty made in pursuance of 
 the Constitution. 
 
 Now we go on further. It shall not only extend 
 to cases arising under the Constitution and the laws 
 of the United States and treaties made, or which 
 shall be made, under its authority, but the text 
 goes on and assumes another form of expression. 
 Heretofore it has been dealing with the subject- 
 matter of the suit — with the nature of the contro- 
 versy going on. ]S'ow it uses another form 
 of expression ; it shall extend to all cases af- 
 fecting classes of people ; " ambassadors and other 
 public ministers and consuls," by which, you 
 understand, every ambassador from a foreign 
 government to this country, or if he be not of the 
 grade of an ambassador; if he be a minister — 
 because these diplomatic gentlemen have various 
 grades, very high-sounding grades — Ministers 
 Plenipotentiary, I think, some of them are, and a 
 few of them have the title of Ministers Plenipo- 
 
OF THE UNITED STATES. 43 
 
 tentiary and Envoy Extraordinary ; I understand 
 that Ambassador is the highest oihce of any of 
 them ; — but whether they be ambassadors, or pub- 
 lic ministers, or mere consuls at our various ports, 
 they have the right to have all their cases tried in 
 the Federal courts — some branch of them. You 
 understand the cause of that. These being repre- 
 sentatives of foreign governments, hidependent 
 nations, are not to be subjected to the powers of 
 the States who have no relation to those govern- 
 ments, but are to be brought before the courts 
 of the Government of the United States, who can 
 look into those troubles and right them. 
 
 "To all cases of admiralty and maritime juris- 
 diction." That is a very peculiar thing to be in 
 that Constitution. I suppose the reason it was 
 put there is, that while admiralty cases do not 
 involve any law or statute of the United States, 
 nor the Constitution of the United States, nor a 
 treaty, yet at the time this Constitution was framed 
 admii-alty being supposed to be limited (as it was 
 in ilngland) to traffic on the ocean, to the affairs 
 of vessels and seamen and navigators of the ocean, 
 it was in the nature of an international relation, 
 and, corning inmiediately in juxtaposition with the 
 clause relating to ambassadors and ministers, I 
 have no doubt that was the reason why it was 
 
44 LECTURES ON THE CONSTITUTION 
 
 taken out from ordinary cases and placed with 
 the judicial power of the United States. That, 
 however, is an interpolation in that clause of the 
 suhject-matter of jurisdiction instead of the char- 
 acter of the party. 
 
 The instrument now leaves the form of using 
 the word "cases," and it leaves the reference 
 to the suhject-matter of jurisdiction, and pro- 
 ceeds again to the person — to give jurisdiction 
 by the description of persons or parties w^ho shall 
 come before the court; and instead of the case, 
 it goes on to say — you will supply the word " ex- 
 tend" — "to controversies to which the United 
 States shall be a party." Whenever the United 
 States is a party in a suit the Federal courts may 
 have jurisdiction — that is, courts acting under the 
 Federal power, in which alone the United States 
 can be sued, and which are courts established 
 under the authority of the United States. Suits 
 in which the United States may sue to recover 
 property and taxes; suits on bonds against de- 
 faulting officers; prosecutions for crimes against 
 the United States, — all these are cases in which 
 the United States is a party, and in which she 
 sues in the courts of her own creation. 
 
 " Controversies between two or more States." 
 There never was any tribunal but one in the 
 
OF THE UNITED STATES. 45 
 
 history of time, anterior to this Constitution, 
 which had jurisdiction, in the full sense of the 
 word, of controversies between States. The old 
 Olympic Council, among the Greeks might pos- 
 sibly have been called a court or tribunal in some 
 sense, but certainly in no such sense as the Su- 
 preme Court of the ITnited States is a court. 
 They could meet and hear complaints of the 
 Greek States against each other. Athens and 
 Sparta and Corinth could meet before that coun- 
 cil and complain of each other's acts, and the 
 council could recommend what should be done, 
 but they had no power to give it any effect. The 
 Constitution of the United States creates, as I 
 shall proceed to show in another clause, a court 
 with jurisdiction of controversies between States, 
 which can bring these States by process before it 
 as it can bring the humblest citizen of the United 
 States, and which can declare its judgment, and 
 which has usually been able to enforce its judg- 
 ment. 
 
 " Controversies between a State and the citi- 
 zens of another State." That is to say, while a 
 State cannot sue one of its own citizens in the 
 courts of the United States, it can sue the citizens 
 of other States in those courts. As this Con- 
 stitution stood at the time ^vhgu ^wjifl - 4 iclopted, 
 
 // ^ OF T1]E ^r \ 
 
 |UNI7ERSITY» 
 
46 LECTURES ON THE CONSTITUTION 
 
 a citizen of one State could sue another State in 
 the courts of the United States; but as soon as a 
 case of that kind originated, in which a State 
 found its dignity infringed, and that a State could 
 be brought into tlie court by everybody, the requi- 
 site number of States modified that provision of 
 the Constitution by declaring that- it should not 
 apply to suits by citizens of one State against 
 another State. The jurisdiction is between. States, 
 and between a State and citizens of other States 
 when the State is plaintiff. 
 
 "Controversies between citizens of different 
 States." And here is the largest source, as it 
 turns out, of the jurisdiction of the Federal courts. 
 You will understand that while the previous part 
 of this section granting parties a right to sue in 
 the Federal courts, in any action arising under 
 the Constitution and laws and treaties of the 
 United States, without regard to their citizenship 
 or residence, these cases are those in which the 
 character of the party gives the right to sue with- 
 out reference to the nature of the matter at issue. 
 And we have here a class of persons who can bring 
 suits no matter what is the cause of action. On 
 -a promissory note, or assault and battery, or any 
 other matter which can become the subject of a 
 judicial investigation, this class of persons can 
 
OF THE UNITED STATES. 47 
 
 bring the suits in the United States courts; and 
 the largest source of jurisdiction up to the pres- 
 ent hour has been from suits between citizens of 
 different States. A person living in Maryland 
 can sue in the United States courts a person liv- 
 ing in Virginia, and e converso ; and so of other 
 States. If you have the qualification of citizen- 
 ship in one State, and your adversary has it in 
 another State, the suit can be brought in the Fed- 
 eral courts. The reason for this, as has been fre- 
 quently said by commentators and by courts, was 
 the fear in the minds of the makers of the Con- 
 stitution, that the local prejudice in favor of a 
 man who is sued in the courts of his own State 
 would result in unfair, decisions against his non- 
 resident adversary. As an illustration, one is 
 living in Boston, and has a suit against a man 
 living in New Orleans. It was supposed that 
 the popularity, the home influence, of the man 
 sued in New Orleans, and possibly some irritation 
 and ill-feeling against citizens of another State, 
 would stand in the way of his getting justice. 
 So, also, seeing that the legislature liad provided 
 that the man so sued for an amount as much as 
 twenty dollars might demand a trial by jury,' 
 that the jury might be afl:ected by this class of 
 prejudices, it was thought wise that a tribunal 
 
48 LECTURES ON THE CONSTITUTION 
 
 which was supposed to be impartial should be 
 provided, and which did not owe its appointment 
 or compensation to the State in which the case 
 was tried. A court owing its own allegiance and 
 receiving its commission from the United States, 
 would be a safer tribunal than a court which re- 
 ceived its conmiission at the hands of a State, 
 which could be influenced by the vote of a ma- 
 jority of the citizens, and swayed more or less in 
 its decisions from the absolute principles of jus- 
 tice. It is on this account that this provision was 
 placed in the Constitution; and it has been, and 
 is to this day, in the ratio of four to one, the source 
 of controversies, suits, and cases in the courts of 
 the United States. 
 
 Now we come again in this intermingling to a 
 class of cases that depend upon questions partly 
 of citizenship and partly of a particular issue 
 '^ between citizens of the same State claiming 
 
 o 
 
 lands under grants of different States." At the 
 time this Constitution was framed, Virginia claim- 
 ed, I believe — or had claimed — a large part of the 
 great Northwestern Territory ; certainly there was 
 a very large amount of land which was claimed 
 under the authority of the original State of Vir- 
 ginia. Connecticut had a grant which is now in the 
 State of Ohio. What is called now the Western 
 
OF THE UNITED STATES. 49 
 
 Keserve, witli a pO[)ulatioij of a quarter of a mil- 
 lion, was, I)y the grant under it, held from the 
 State of Connecticut. It was supposed, wliere 
 there was this evil of grants under the difierent 
 States, there would be controversies, and this 
 was a provision giving the Federal courts juris- 
 diction of that class of cases. And linally, con- 
 troversies "between a State or the citizens 
 thereof and foreign States, citizens, or subjects." 
 Every foreign State is entitled to sue in the Fed- 
 eral courts any of our citizens ; and if we can get 
 hold of anything they have, we have a right to 
 sue them in the Federal courts. 
 
 These are the chisses of cases and the nature 
 of the controversies and the characteristics of the 
 parties who, by the fundamental law of this land, 
 are authorized to bring suits in the courts of the 
 United States. But in the largest part of them 
 there is requii'ed an act of Congress to create the 
 courts which should exercise this jurisdiction. 
 Congress, immediately after the organization of 
 the government, did create courts, but up to the 
 present time — certainly up to withiu live years 
 ago — a very large body of this judicial power was 
 vested in no court at all, and therefore could not 
 be exercised in a court of the United States; and 
 at the present hour there is a very large limita- 
 3 
 
50 LECTURES ON THE CONSTITUTION 
 
 tion upon the class of cases the power in regard 
 to which has been vested by acts of Congress. 
 For instance, no suit can be brought in the courts 
 of the United States where the amount in con- 
 troversy does not exceed iive hundred dollars in 
 value, with the exception of criminal cases, pat- 
 ent cases, and revenue cases, in which the United 
 States is concerned, where the United States may 
 bring suit without reference to the value. But a 
 citizen of the United States cannot bring a suit 
 in a court of the United States, unless it be a 
 patent case, an admiralty case, or where the value 
 in controversy exceeds live hundred dollars. I 
 understand there is a bill before Congress to ex- 
 tend the rule of exclusion still further, by making 
 the amount two thousand dollars; and it was 
 only in 1875 that they passed a law which author- 
 ized the bringing in the Federal courts of all 
 cases arising under the Constitution, the laws, and 
 treaties made under their authority. Previous to 
 1875, if the party had a right, under the Consti- 
 tution, the laws, or treaties, but had not the requi- 
 site citizenship, he had to go before the State 
 court; and when he had carried his case through 
 all the State courts, up to the highest, then, by a 
 writ of error, the question which concerned the 
 Federal jurisdiction might be brought to the 
 
OF THE UNITED STATES. 51 
 
 Supreme Court of the United States, if decided 
 afijainst him. But now, by the act of 1875, that 
 class of cases, of live hundred dollars in value, 
 may be brought originally in the Circuit Courts 
 of the United States. 
 
 I have read to you and commented mainly on 
 the second section in advance of the first section, 
 because this is the section which defines the judi- 
 cial power of the United States, which tells us 
 the classes of cases that it may extend to, and 
 which, therefore, is of primary importance to the 
 student of law. 
 
 The first section — which, perhaps, in the order 
 of sequence, might have been first read — pro- 
 vides that "the judicial power of the United 
 States" — this power of which we have been talk- 
 ing — "shall be vested in one Supreme Court, 
 and in such inferior courts as the Congress may 
 from time to time ordain and establish. The 
 judges, both of the supreme and inferior courts, 
 shall hold their offices during good behavior, and 
 shall, at stated times, receive for their services a 
 compensation, which shall not be diminished dur- 
 ing their continuance in office." 
 
 "The judicial power shall be vested in one 
 Supreme Court." There can be, therefore, but 
 one Supreme Court, That court, once in exist- 
 
52 LECTURES ON THE CO^^STITUTION 
 
 ence, cannot be abolished, because its tbandation 
 is not in an act of Congress, bat in the Constitu- 
 tion of the United States. It is true, an act of 
 Congress was necessary to define the number of 
 these judges, to some extent to limit their juris- 
 diction, as I shall presently show, and to provide 
 for their compensation ; but that thing once done, 
 you find that the judges shall hold office during 
 good behaA'ior. They cannot be legislated out 
 of office; they "shall, at stated times, receive 
 for their services a compensation, which shall not 
 be diminished during their continuance in office." 
 When they once have established the compen- 
 sation of judges, they cannot diminish that com- 
 pensation during the term of the judge then in 
 office. You can see an obvious reason for that. 
 As I told you the other evening, the judicial 
 branch of the government is the weakest branch. 
 It has neither the purse nor the sword. It is 
 dependent upon annual appropriations for the 
 bread on which its judges live. The courts are 
 dependent upon the President's furnishing mar- 
 shals who shall execute their decrees; and the 
 makers of this wonderful instrument, perfectly 
 aware of the waves of passion wliicb frequently 
 run through the legislative and executive branches 
 of the government, and that this judicial body 
 
OF THE UNITED STATES. 53 
 
 would be called upon occasiouallv to declare 
 what the Coustitiition means, and that what Con- 
 gress had said were laws were not constitutional, 
 and that might provoke hostility, they said : **You 
 cannot diminish these gentlemen's salaries he- 
 cause they do not agree with you." And they 
 said more than that to the President: "You shall 
 not turn them out of office; they shall remain as 
 long as they shall live, provided they behave 
 themselves." Well, I do not know how well 
 they have behaved; but the only mode of deter- 
 mining that thing is by impeachment. One judge 
 of the Supreme (>ourt of the United States went 
 through the process of impeachment and came 
 out unhurt. 
 
 So that this judicial body, these men, — [ am 
 not s[)eaking alone of the Supreme Court, but of 
 all the Federal courts, — have this protection. 
 And speaking of this Supreme Court, I will call 
 your attention again to the fact that this power 
 is vested in one Supreme Court and such inferior 
 courts as the Congress may from time to time 
 ordain and establish. The Constitution does not 
 admit that it should be abolished or the judges 
 legislated out of existence. It lias been argued 
 very forcibly, probably with truth, that all the 
 other courts can, by legislative act, be abolished, 
 
54 • LECTURES ON THE CONSTITUTION 
 
 and their powers conferred on other courts, sub- 
 divided in different modes. 
 
 It is declared in one of the clauses which I 
 have read to you — the second clause of the sec- 
 ond section — that in all cases aifecting ambassa- 
 dors, other public ministers, and consuls, and those 
 in which a State shall be a party, the Supreme 
 Court shall have original jurisdiction ; that is to 
 say, that there is a class of cases where you need 
 not go through the forms of the lower courts, the 
 Circuit Courts, District Courts, or anything else; 
 for if a man is an ambassador, or a minister, or a 
 consul, or if a State is a party, — as the Constitu- 
 tion as amended has it, if a State is a party against 
 anothei- State, or if a State clioose to bring a suit 
 against the citizens of another State, — that suit 
 can be brought at once in the Supreme Court in 
 its original jurisdiction, the word "original" be- 
 ing used in contradistinction to appellate jurisdic- 
 tion. 
 
 This class of persons, then, is limited, and the 
 number of suits in the original jurisdiction of the 
 Supreme Court is very small. It never amounts 
 to more than eight or ten cases at a time. In 
 all other cases before mentioned — that is, in all 
 that large mass of cases to which the power of the 
 Federal government extends — "the Supreme 
 
OF THE UNITED STATES. 55 
 
 Court shall have appellate jurisdiction both as to 
 law and fact, with such exceptions and under 
 such regulations as the Congress shall make." 
 The Congress, therefore, can control very largely 
 the appellate jurisdiction of the United States 
 Supreme Court. It has done so; it has passed 
 laws at various times regulating that jurisdiction. 
 One of its earliest laws upon the subject was that 
 110 ordinary suit between individuals could come 
 to the Supreme Court for revision unless there 
 were two thousand dollars involved; it is now 
 five thousand dollars; and there is a pressure 
 now, either by the creation of some intermediate 
 appellate court or otherwise, to enlarge that sum 
 to ten or twenty thousand dollars, so that only 
 cases involving great amounts, and certain other 
 cases of the class tirst mentioned, where the Con- 
 stitution of the United States is involved, or where 
 a conflict between State and Federal authority is 
 involved, may go up to the Supreme Court of 
 the United States. 
 
 You see, therefore, gentlemen, that after hav- 
 ing prescribed, with wonderful particulai'ity, the 
 classes and kinds of suits which may be brought 
 before it, the Constitution has created a judicial 
 department of this government as one of its three 
 branches, and to that exclusively is delegated the 
 
66 LECTURES ON THE CONSTITUTION 
 
 judicial power of the government. The lines 
 which mark legislative and judicial power are 
 not ver}^ w^ell defined, but they are becoming 
 more and more so. Our courts are full of de- 
 cisions on that subject. It is judicial power 
 which, in a controversy, decides the rights to 
 property between citizens. It is not a legislative 
 power ; and when a legislature, or at least the 
 legislature of this Federal government, shall de- 
 clare that the property which was, or is, the 
 property of A, sliall become the property of B, 
 it is an invasion of the judicial function ; and the 
 court would not hesitate to say that that was an 
 act which belongs to the courts alone ; that the 
 legislature cannot do it, because of this separa- 
 tion in the Constitution of judicial and legislative 
 powers. So the executive may, under certain 
 circumstances, invade the personal rights of the 
 individual, as regards his liberty. It has been 
 done in cases of emergency; it may be done 
 again ; because the writ of habeas corpus may be 
 suspended, and the President or the executive 
 officers may order a man into imprisonment. 
 But in all these cases they are to be careful to 
 exercise their power within the law. Whenever 
 they do this arbitrarily, by creating a law for 
 themselves in violation of the restrictions which 
 
OF THE UNITED STATES. 
 
 57 
 
 botli the Constitution and the laws have thrown 
 around private rights, they invade the judicial 
 functions and power of the United States, and 
 the courts will set that man at liberty if their 
 mandates are observed. 
 
 ^^ 
 
 LI 
 
 u 
 
 \^^ OF TUK 
 
 TERSITY 
 
58 LECTURES ON THE CONSTITUTION 
 
 Third Lecture. 
 
 In these three addresses, gentlemen, that I 
 have undertaken to deliver to you on the Con- 
 stitution of the United States, it is impossible to 
 do more than take up in a fragmentary way par- 
 ticular parts of it. The instrument itself is so 
 all-embracing; there are so many sections, sub- 
 divisions, sentences, and clauses, each of which 
 has been the subject of judicial construction, and 
 comment by the public press and in both houses 
 of Congress, that it is impossible to do more 
 in this way than to take up some particular sub- 
 jects and speak to you about them. 
 
 This evening I propose to turn your attention, 
 rather than deliver any formal lecture, to the pro- 
 visions of that instrument which ma}^ be said to 
 relate to the protection of personal rights. It is not 
 a new feature in any instrument which professes 
 to be a fundamental basis of government, although 
 our Constitution, of which we are talking, was one 
 of the earliest that attempted to institute de novo 
 a systeniatic form of organic government, In 
 
OF THE UNITED STATES. 59 
 
 the history of the English race, at all events, prior 
 to that time, were charters, concessions from the 
 Crown, guaranteeing rights to the citizens; and 
 perhaps that was the only possible mode in which 
 our ancestors could establish on a broader basis 
 their liberties, namely, by demanding from the 
 monarchs of the English race concessions, char- 
 ters, grants, and privileges. The great Magna 
 Charta, about which you have heard so much, as 
 probably the most famous paper in English his- 
 tory, were concessions exacted from King John, 
 who was of a rather arbitrary disposition. This 
 was mainly for the purpose of establishing the 
 personal rights of his subjects. 
 
 Our Constitution, unlike most modern ones, 
 does not contain any formal declaration or bill 
 of rights. It has become the custom, and you 
 will iind inserted in most of the constitutions of 
 the States what is called a bill of rights, intended 
 to define and protect the personal rights of the 
 citizens, or of the people who are subjected to 
 the power of the government ; and although there 
 is no such formal list in this Constitution, there 
 is scattered through it, in very irregular shape 
 and at different places, some fundamental dec- 
 larations of the right of the citizen for protection 
 even against his own government, and against 
 
60 LECTURES ON THE CONSTITUTION 
 
 the government which they were then organiz- 
 ing; to which I propose calling your attention 
 this evening. For the very reason that they 
 were scattered in that irregular manner, it is use- 
 ful to have them brought before you in a shape 
 that they may be looked at with some system. 
 
 The iirst of these to which I propose to call 
 your attention, is that which relates to religion. 
 The provisions on that subject are only two, and 
 they do not go anything like as far as the popu- 
 lar idea supposes they do. What is said any- 
 where in this Constitution on the subject of relig- 
 ion is very limited. The first clause that you find 
 upon that matter is at the close of the sixth arti- 
 cle of the Constitution, and very near the close 
 of the instrument — a very queer place, you would 
 think, to find an article of that kind. It relates 
 to the oath which the officers of the government 
 shall take. It is the third clause of the sixth 
 article : ' 
 
 "The Senators and Representatives before mentioned, 
 and the members of tlie several State legislatures, and all 
 exeQUtive and judicial officers, both of tlie United States 
 and of the several States, sliall be bound by oath or affir- 
 mation to support tiiis Constitution ; but no religious test 
 shall ever be requii-ed as a qualilication to any office or 
 public trust under the United States." 
 
 Now, 3'ou may imagine, with your personal 
 
OF THE UNITED STATES. 61 
 
 experience and mine, that that was a very un- 
 necessary provision in a Constitution intended for 
 this country. But you are to remember, at the 
 time that Constitution was framed, that very re- 
 cently, every man in New England who held 
 office had, in some way, either by an oath or in 
 some form which tested his sincerity, to profess 
 to belong to the Protestant religion, and some 
 particular form of the Protestant religion. In 
 England at that time no man could hold office 
 who did not profess his belief in the thirty-nine 
 articles of the English Church. And it was only 
 in very modern times — I think about 1840 — that 
 Roman Catholics were permitted to hold office, 
 and only in the last fifteen years that Jews were 
 permitted to hold office in Great Britain. So 
 you see that this was no imaginary thing, but a 
 necessary and proper declaration to be made at 
 that time, that under no circumstances should 
 any religious test be required as a qualification 
 for any public office in the Government of the 
 United States. It was an advance. 
 
 That is all that is in the old Constitution as it 
 was originally framed; but, as I told 3'ou the 
 other evening, in the conventions of the States 
 which voted upon the ratification of that Consti- 
 tution, there was a very general distrust of the 
 
62 LECTURES ON THE CONSTITUTION 
 
 powers which that instrument conferred as tend- 
 ing to centralization, and a great many States 
 proposed amendments in those conventions, 
 which were submitted at the first session of 
 Congress after that body was organized, and 
 adopted according to the rule which required 
 two-thirds of the States to adopt amendments. 
 There were then submitted to the vote of the 
 States some fifteen amendments, of which twelve 
 were adopted. The first of these amendments 
 had reference to this subject. Still suspicious of 
 the power of the general government, nearly all 
 of the amendments submitted at that session of 
 Congress were adopted with reference to the re- 
 straint upon the powers of the Federal govern- 
 ment. The article is as follows : 
 
 "Congress shall make no law respecting an establish- 
 ment of religion or prohibiting the free exercise thereof, 
 or abriclgiiig the freedom of speech or of the press, or the 
 right of the people peacefully to assemble, and to petition 
 the government for redress of grievances." 
 
 " Congress shall make no law respecting the 
 establishment of religion," and the other provis- 
 ion requires that there shall be no religious test 
 required for officers under the United States 
 Government. But there is in this instrument 
 no limitation in regard to the State.9 establishing 
 
OF THE UNITED STATES. 6S 
 
 any formal religion, or against requiring any re- 
 ligions test in the officers of the States. The 
 whole restriction is upon the Federal govern- 
 ment; and, so far as this instrument is con- 
 cerned to-day, contrary to the general impres- 
 sion, any State can establish Methodism, or 
 Episcopalianism, or Unitarian ism, or Universal- 
 ism, as the religion of the State, to be supported 
 by taxes to be levied upon the property of the 
 people. I speak of this because it is a general 
 opinion that no such thing could be done under 
 the Constitution of the United States. There is 
 no prohibition on that subject. 
 
 The next thhig that I call your attention to is 
 the writ of habeas corpus. Ever since the charter 
 of King John, the writ of liabeas corpus has been 
 considered as the representative of the English- 
 man's right to the security of his personal liberty 
 against the private seizure of his wife or children, 
 and for any unlawful imprisonment whatever. 
 The writ of habeas corpus, so established, was then 
 and is now, and perhaps will always remain, the 
 representative of liberty and the established form 
 of maintaining that liberty. It comes from two 
 Latin words : habeas, " have " or " take," and cor- 
 pus, "the body"; and it is used in that way be- 
 cause the writ commences: "You will have the 
 
64 LECTURES ON THE CONSTITUTION 
 
 body of the prisoner before the court" which 
 issues it. The writ of habeas corpus was then in 
 existence, and, in the constitutional provision on 
 the subject, it is recognized as an existing reme- 
 dy. It is not established by the Constitution ; it 
 is not created by the instrument ; it is only spoken 
 of, like so many other things in this instrument, 
 as a known and existing institution; and it is 
 for the protection and security of the citizen in 
 the use of that writ that the provision on the 
 subject is found in this Constitution. It is the 
 second clause of section nine of the first article 
 of the Constitution. After prescribing the pow- 
 ers which Congress shall have, and some pro- 
 visions about the "migration or importation" 
 of persons, — using that particular, formal phrase 
 wdiich the instrument so often does to avoid the 
 word "slaves": "the migration or importation 
 of such persons as any of the States now existing 
 shall think proper to admit, shall not be prohibited 
 by the Congress prior to the year 1808; but a 
 tax or duty ma}^ be imposed on such importation," 
 — then the phrase to which I call your attention 
 follows : 
 
 "The privileo^e of the writ of haheas corjms shall not be 
 suspended, unless when, in cases of rebellion or invasion, 
 the public safety may require it." 
 
OF THE UNITED STATES. 65 
 
 That is, it shall always be an existing remedy. 
 No local authority shall suspend it; it shall not 
 be denied for any ordinary cause; it shall be a 
 remedy to which the poorest citizen may resort 
 whenever he is imprisoned or detained forcibly, 
 with the single exception of cases of rebellion or 
 invasion, and even then only when the public 
 safety requires it. 
 
 A very important question arose about who 
 can suspend that writ — a question that has never 
 been settled yet — which may yet come to be set- 
 tled judicially. The President undertook to sus- 
 pend it by proclamation, and that proclamation 
 was acted on, and a great many people were im- 
 prisoned without relief. Habeas corpus was de- 
 nied by a great many courts judicially, afterwards, 
 on the ground that the President had suspended 
 the writ, but there was a large class of jurists 
 and statesmen who held that Congress only could 
 suspend it. I do not propose to enter into that 
 question. I can only say that President Lincoln 
 thought expedient to suspend it, and undoubtedly 
 circumstances rendered its suspension necessary 
 at that time. But that great writ, which was in- 
 tended for the protection of the citizen, shall not 
 be suspended, which means shall not be denied. 
 
66 LECTURES ON THE CONSTITUTION 
 
 except in cases of rebellion or invasion, and when 
 the public safety requires it. 
 
 The original Constitution contains some other 
 matters of this same class, to which I will direct 
 your attention a few moments. Among them is 
 the section with regard to bills of attainder. That 
 is to be found in section ten of the first article of 
 the Constitution, just after the one I have been 
 speaking of: 
 
 "No bill of attainder or ex post facto law shall be 
 passed." 
 
 That, of course, is a limitation upon the power 
 of Congress. But section ten says : 
 
 '•No State shall * * * * passany bill of attainder. 
 ex post facto law, or law iinpairino- the obligation of con- 
 tracts." 
 
 You see that the makers of the Constitution 
 not only declared that Congress should not pass 
 any bill of attainder, but they went further, and 
 said that no State should do so; and the same is 
 true with regard to ex post facto laws. 
 
 These two things, bills of attainder and ex post 
 facto laws, are, happily, unknown in this country. 
 The provisions of the Constitution forbade them 
 both to the States and to the Federal govern- 
 ment ninety years ago, and we do not know any- 
 thing about them in this age and generation. A 
 
OF THE UNITED STATES. 67 
 
 bill of attainder was a familiar mode in the 
 English Parliament of punishing a man by an 
 .|M3t of Parliament without a formal judicial trial, 
 without a jury, without witnesses to be examined, 
 if he had offended the sovereign power of the 
 country. 
 
 In the frequent rebellions and revolutions that 
 they had in that country, the party which, for the 
 time being, became dominant punished its ene- 
 mies by bills of attainder; and a bill of attainder 
 was a law which declared that the man or men 
 against whom the act was passed had forfeited 
 all their rights of property; often it declared that 
 they had forfeited their lives, and that the blood 
 of that man and his family was attainted ; so that 
 neither could he inherit anything from his ances- 
 tors, nor his children inherit anything from him. 
 And that is the origin of the word attainder, from 
 the old Norman -French word attebulre. A bill 
 of attainder attainted his blood, so that if he es- 
 caped with his life, and his father was a noble- 
 man, or only a gentleman inheriting large real 
 estate, this man could not inherit; and if he had 
 children who were innocent, who had taken no 
 part in the rebellion or quarrel which was the 
 cause of it, those children could not inherit from 
 him. He is cut off and blasted in his root and 
 
68 LECTURES ON THE CONSTITUTION 
 
 branch, so that title to no property coiikl go 
 through him. And tliat was called a hill of 
 attainder. That was the common mode of piiriin, 
 ishing treason, and also some other crimes. It 
 was a frequent addition to the judicial punish- 
 ment of enormous crimes, such as fratricide, that 
 the man should not only be punished bj death, 
 but that he should be attainted. 
 
 So with regard to ex post facto laws : they were 
 laws of a similar character. It was a question 
 in our Supreme Court whether the expression 
 ex post fticto laws did not relate to all laws passed 
 after the fact on which they were intended to 
 operate; but the Supreme Court, at a very early 
 day, held that it was a form of expression appli- 
 cable solely to criminal proceedings, and that a 
 law which affected only civil rights might be re- 
 troactive or retrospective in its effects; but that 
 no statute which attempted to regulate criminal 
 proceedings could be passed which made that 
 which was not an offense at law a criminal offense 
 afterwards. Xo law could be passed after a man 
 had committed the act for which he was to be 
 indicted or charged which should seriously affect 
 the rule by which his guilt was to be determined ; 
 no new description of offenses which would in- 
 clude an act already done if it were not included 
 
OF THE UNITED STATES. 69 
 
 before; no new evidence which could not have 
 been given at the time the act was committed 
 can, b}' a new law, be introduced to affect a crim- 
 inal proceeding. A great many cases have been 
 before the court upon this point, and it is very 
 well defined and understood; and the substance 
 and essence of it is that no act can be passed, 
 either by Congi'ess or a State legislature, which, 
 in its retroactive effect on a crime, or in its effect 
 on an act committed before the law was passed, 
 can make that criminal which was not criminal 
 before, or make that punishable which was not 
 punishable before, or in a more severe manner 
 than it was punishable before, or make it to be 
 ascertained by other and different rules of evi- 
 dence than those which existed at the time it was 
 committed. 
 
 These, as you will perceive, gentlemen, all be- 
 long to a class of provisions intended to secure 
 the personal rights of the individual citizen. 
 
 Passing, now, from the original instrument to 
 the amendments of which I have already' spoken, 
 and the first one of which I have read to you, to 
 one or two of which I will call your attention 
 again. "Congress shall make no law respecting 
 an establishment of religion, or prohibiting the 
 free exercise thereof, or abridging the freedom of 
 
70 LECTURES ON THE CONSTITUTION 
 
 speech or of the press." I suppose you have all 
 heard of that ; it is a thing they talk about a good 
 deal. The press does not say much about their 
 abridgment of other people's freedom ; but they 
 are always appealing to this provision of the Con- 
 stitution in their own behalf. This amendment 
 is a limitation upon the powers of Congress. For- 
 tunately, such has been the regard of Congress 
 for the freedom of the press and of speech, such 
 has been the popular feeling in this country for 
 the right of every man to say and write what he 
 pleases, that there has been no attempt on the 
 part of Congress, except once in its history, that 
 I know of, to infringe this article of the Consti- 
 tution, to do anything which might be pronounced 
 an infringement. During the great contest be- 
 tween the Federal party and the anti-Federal 
 party, at the close of Mr. John Adams' adminis- 
 tration, they passed a law called the alien and 
 sedition law — two laws, rather : one was the alien 
 and the other the sedition law. The sedition law 
 did have provisions against the publication of 
 articles in the newspapers, or otherwise, calculated 
 to stir up sedition among the people; but before 
 they could come to the courts the Jeifersonian 
 refjiine. came into power, and the whole of that 
 system of legislation was repealed. It only re* 
 
OF THE UNITED STATES. 71 
 
 mains as a curiosity' upon onr statute-books. Per- 
 haps there are some gentlemen in this house old 
 enough to remember when our Democratic breth- 
 ren used to charge their opponents with being the 
 advocates and framers of the alien and sedition 
 laws ; but, as much as it was talked about and 
 written about, it never became the subject of any 
 judicial judgment in-this country, that I know of. 
 " Or the right of the people peaceably to assem- 
 ble and to petition the government for redress of 
 grievances." All those things, fortunately, are 
 things which, not only in this country, but in the 
 country with which our ancestors were familiar, 
 have passed away. The press was fettered in 
 England, and the freedom of speech was fettered 
 in England, and the right of the people to assem- 
 ble was fettered ; and in F'l-ance to-day, although 
 it is a republic, the censor thinks no more of 
 stopping a newspaper for six or eight months 
 than a policeman would of arresting a man on 
 the streets here. In Louis Napoleon's time, if 
 more than three men were found together and 
 could not tell what they were talking about, they 
 were arrested. Those things w^ere common in 
 the days when the Constitution was framed, but 
 they have passed away, and we do not realize 
 that thev ever were. 
 
72 LECTURES ON THE CONSTITUriON 
 
 The next article, the third (;f the amendments, 
 is: 
 
 '•That no soldier shall, in time of pence, be quartered 
 in any lionse withont the consent of the owner, nor in 
 time of war but in a manner to bo presci'ibed by law." 
 
 That is another grievance we do not know in 
 this countr3\ Ko man here has seen a soldier 
 quartered on a private citizen. But it was the 
 hahit of the English Government and all govern- 
 ments of Europe — the English being the most 
 liberal — to have tlieir soldiers in times of peace 
 billeted on the citizens. Regiments of soldiers 
 would be quartered in. York or Liverpool, or in 
 Scotland, or some place where it was necessary 
 they should be; and instead of paying for their 
 support, as we do now, and as all nations do, I 
 think, each soldier was billeted on a citizen,— that 
 is, boarded and lodged ; and if there was any com- 
 pensation, it was irregular and uncertain. There 
 was no right on the part of the citizen to refuse. 
 They were, perhaps, in some way compensated, 
 but they had no right to say: "You shall not put 
 a soldier in my house at all." This provision not 
 only says it shall not be done at all in time of 
 peace without the consent of the owner, but that 
 it shall be done in time of war only in a manner 
 to be prescribed by law. It contemplate^ the 
 

 OF THE UNITED STATES. 
 
 [jossihle tact that in time of great emergency, in "^ ^ 
 time of war, it may be necessary, but even then^^ ^x 
 not at the will of the commander, but in a man- Z^* ^^^*^ 
 ner to be prescribed by the general law of the 
 land. 
 
 "The right of tlie people. to be secure in their 
 persons, houses, papers, and effects, against un- 
 reasonable searches and seizures, shall not be 
 violated." That was a grand general proposi- 
 tion. Perhaps all the English people would say 
 that is the right of all of us anyhow ; but the pro- 
 vision goes further, and says: 
 
 "• And no warjiints shall issno, but upon probable cause, 
 snpportod by oatli oi* .-iflSmiation, and particnlarly (le- 
 ficiibino: the. place to be searched, and tlie persons or 
 tliino:.s to be seized." 
 
 That has been of great utility in this country. 
 Formerly, general search-warrants were issued 
 })y magistrates, courts, and clerks, to officers, to 
 scnirch any man's house for anything that might 
 be supposed to elucidate and explain crime and 
 bring criminals to justice or establish private 
 rights; and in addition to this declaration that 
 this shall not be done, the article goes on to say 
 i?i what way it can be done ; that is, warrants 
 shall issue, first, " upon probable cause, supported 
 by oath or affirmation, and particularly describ- 
 
 * 4 
 
74 LECTURES ON THE CONSTITUTION 
 
 ing the pluce to bo searched, and the persons or 
 things to be seized." 
 
 Now comes an article embodying, perhaps, 
 more important matter regarding the liberty of 
 the citizen than any other in the Constitution, 
 until we come to some of those adopted since 
 the Rebelhon. Article V of the amendments 
 declares that 
 
 "■No person shall be held to answer for Ji capital or 
 otherwise infan^ous crime, unless on a presentment or in- 
 dictment of a grand jiny, except in cases arising in the 
 land or naval forces, or in the militia when in actnal 
 service, in time of war or pnbllc danger ; nor shall an}- 
 pei'son be snbject for the same offense to be twice pnt in 
 jeopardj' of life or limb; nor shall be compelled, in any- 
 criminal ease, to be witness against himself; nor be de- 
 prived of life, liberty, or property without due process of 
 law; nor shall private pi'operty bti taken for public nse 
 without just compensation." 
 
 I read the sixth article in the same co:nnection : 
 
 ''*' In all criminal prosecutions the accused shall enjoN' the 
 right to a speedy and public trial, by an iujpartial jury of 
 the State and district wherein the crime shall have beei» 
 committed, which district shall have been previously as- 
 certained by law, and to be informed of the nature and 
 Ciiuse of the accusation ; to Ix) confronted with the wit- 
 nesses against him; to have compulsory pi-ocess for ob- 
 taining witnesses in his ftivor; and to luive the assistance 
 of counsel for his defense." 
 
 Here is the great bulwark which has been 
 
OF THE UNITED STATES. 75 
 
 tbrovvii up against improper, vindictive, and 
 overbearing prosecutions, as a limitation upon 
 the ])Owers of the United States; and m the Con- 
 stitutions of most of the States similar provisions 
 are found. 
 
 "No person shall be held to answer for a cap- 
 ital or otherwise infamous crime, unless on a 
 presentment or indictment of a grand jury." 
 Here is a distinction between a capital or infa- 
 mous crime and those of minor offenses. A 
 man might be proceeded against on information 
 for defrauding the revenue; for petty offenses of 
 an insignificant character; for slander and assault 
 and battery ; for a great many things; but if the 
 crime is one which renders him infamous, of 
 which the general punishment is sending him 
 to the penitentiary, an offense they call felony — 
 if he is to be tried for that, he cannot be tried 
 except upon indictment by a grand jury. It is 
 very doubtful whether that is a wise provision 
 now. There are a great many States seeking to 
 get rid of it. Instead of a bulwark, it has been 
 made a stumbling block. Like the press, like 
 religion, like government itself, it is capable of 
 perversion; but at the time when these senti- 
 ments were delivered, when, in the country from 
 which we came, men were prosecuted for the 
 
 ^tSE 
 
 
^ 
 
 76 LECTURES ON THE CONSTITUTION 
 
 slightest thing in the way of uttering or speaking 
 a harsh word against the King, or against the 
 King's character, — when they were prosecuted 
 without indictment, on information and convicted 
 upon presumption, why, it was something to de- 
 clare, as the permanent law of this country, that 
 no man should he so prosecuted until the grand 
 jury inquired into his case and ascertained the 
 grounds of the charge against him. There are 
 some cases which are exceptions: 
 
 '■' Except in cases Jirising in the land or naval forces, or 
 in the militia when in actnal service, in time of war or 
 public (lano;er." 
 
 The reason of that was that they could not 
 stop to try him by jury, and they had to try him 
 suddenly and dispose of his case. 
 
 Now, another thing : 
 
 •"Nor shall any person be subject for the same offense 
 to be twice put in jeopardy of life and limb." 
 
 That was an old common-law maxim, but was 
 thought to be sufficiently important to be put in 
 the Constitution. The meaning of it is, that if a 
 man is tried, and the jury renders a verdict, he 
 can never be tried for that offense again. The 
 phrase "life and limb" is an old technical one, 
 which is construed to mean the life or liberty of 
 himself or the loss of his property. When you 
 
OF THE UNITED STATES. 77 
 
 come to practice law, you will find iu civil cases 
 the same doctrine to be that no man shall be twice 
 vexed for the same cause. It means the same 
 thing. And the other maxim on which it rests 
 is, that it is the interest of the republic that litiga- 
 tion shall have an end. "So that the principle of 
 the common law, of the civil law, and of the 
 criminal law is, tliat when a man has once been 
 tried by a competent tribunal and the case is 
 ended so as to be beyond appeal or review, the 
 charge can never be brought against that man 
 again, and he can never dispute the judgment 
 again. 
 
 "Nor shall he be compelled, in any case, to be 
 a witness against himself." That was a provision 
 necessary in that day. All of you who have 
 read Scott's novels, for instance, will remember 
 the man who was tried for some offense against 
 the Crown — I think some one of those Scotch 
 covenanters who were engaged in the rebellion — 
 and they wanted to make him testify against him- 
 self and also against his co-conspirators. They 
 applied the thumb-screw to him, and there were 
 various other modes of torture; but Scott tells 
 us that the man was brought before Lord Lauder- 
 dale, and, after suffering a great deal, his lordship 
 said to him: "Why don't vou tell rather than 
 
78 LECTURES ON THE CONSTITUTION 
 
 suffer so much ? " Said he : " My lord, if I ac- 
 cuse any man, you will be the first one that I 
 shall accuse under this pressure." Now, that 
 thing struck Lauderdale and others engaged in 
 the tr'fft so forcibly, that very soon after tor- 
 ture was abolished, although the rule continued 
 that a man could testify, if he would, against 
 himself. But this clause says that no man can 
 be compelled to testify against himself in a crim- 
 inal case. 
 
 And now comes the other provision : 
 
 ''Nor be deprived of life, liberty, or property without 
 due process of law." 
 
 To describe what is "due process of law" 
 might perhaps occupy a whole lecture with a 
 great deal of profit. It is a provision that in 
 this branch of the Constitution, in these first 
 amendments, this fifth amendment was put in 
 as a limitation upon the power of Congress. It 
 meant that neither Congress, nor the President, 
 nor the executive, nor the courts, should depriv^e 
 any man of life, liberty, or property without due 
 process of law. In the fourteenth amendment, 
 one of the last that has ever been adopted, the 
 Constitution has extended that prohibition to the 
 States : 
 
 "No State shall make or enforce any law which shall 
 
OF THE UNITED STATES. 
 
 ?ibri(1o(i tlio privileges or iininmiities of citizeii 
 United States; nor shall any State deprive any person of 
 life, liberty, or property withont due process of law." 
 
 So that neither Congress nor a State ^author- 
 ized to deprive any individual of life, ^erty, or 
 property without dae process of hiw; and it be- 
 comes, therefore, very important to know wliat 
 ^' due process of law " is. 
 
 Neither the Congress of the United States — to 
 its credit be it said — nor the executive, nor the 
 courts, so far as I know, have hardly ever in any 
 instance been charged with attempting to do that 
 thing; but the States have not been so temper- 
 iite, and they are not so temperate in their legis- 
 lation generally as Congress is. Since that pro- 
 vision has been the law of the land, since 1867 — 
 when, I believe, that amendment was adopted — 
 the Federal courts are filled with suits brought 
 to vindicate the rights of citizens under that 
 clause of the Constitution; the parties alleging 
 that State laws and State officers, executive, judi- 
 cial, and ministerial, are constantly invading the 
 right of life, liberty, and property without regard 
 to due process of law; and it has become a very 
 grave question what due process of law means. 
 ft is so frequently before the courts that I do 
 not dare to trive vou a definition. It is best that 
 
80 LECTURES ON THE CONSTITUTION 
 
 the Supreme Coui't of the United States, the final 
 arbiter in such eases, should proceed slowly, and 
 declare, as each particular case comes before it, 
 whether it is or is not a violation of that provis- 
 ion, and whether the proceedings are or are not 
 according to due process of law. It is sufficient 
 to say that by due process of law is meant some 
 proceeding according to a recognized course of 
 law. In other words, neither Congress nor a 
 State can pass a law declaring that the property 
 which belonged to A shall at once be the prop- 
 erly of B. They cannot pass a law declaring 
 that the United States may seize property and do 
 as they please with it; they cannot pass a law 
 that a State can do that; they cannot pass a law 
 that you can summon a constable and put a writ 
 in his hands, and by that means get a title to the 
 property that belongs to me. There must be a 
 legal mode of proceeding, a judicial mode of pro- 
 ceeding, but always a proceeding by a law pre- 
 scribing modes by which the rights of the parties 
 may bo determined. That is due process of law ; 
 and shoj't of that, it is not due process of law. 
 
 I perceive, gentlemen, that if I should continue 
 this minute way through all of these subdivisions 
 I should occupy a longer time than I proposed. 
 
OF THE UNITED STATES. 81 
 
 There is one otlier, however, which is quite ira- 
 
 jiortant: 
 
 "Nor shall private propert.v be taken for public use 
 w itlioiit just eompenpation.'' 
 
 If the Government of the United States wants 
 a piece of property to build a court-house, a 
 prison, or a capitol ; wants private property for 
 any public purpose, it cannot take that property 
 without providing at the same time and by the 
 same act for the payment of just compensation. 
 Some of the States, copying after this article, 
 have gone further, and say without just compen- 
 sation first paid or tendered. This provision, as 
 it reads here, however, has been construed that 
 the State can take the land and pay for it after- 
 wards. But the general idea is, that whatever 
 law or whatever mode of proceeding is adopted 
 to take any private property, land, or personal 
 property, for public use, the same law which 
 authorizes it to be done must provide tlie mode 
 of assessing its value and compensating the party 
 for the property thus taken. This is one of the 
 wise provisions of this instrument. 
 
 "In all criminal prosecutior.s the accused shall 
 enjoy the right to a speedy trial, by an impartial 
 jury of the State and district wherein the crime 
 shall have been committed, whicli district shall 
 
82 LECTURES ON THE CONSTITUTION 
 
 have been previously ascertiiined by law." Now 
 notice. He shall have a speedtj trial. It shall 
 be a putdic trial, not a star-chamber proceeding, 
 with closed doors, to keep the people from seeing 
 what is being done. The man who is indicted 
 or proceeded against for something which will af- 
 fect his reputation, his life, his liberty, or his prop- 
 erty, has the right to have the public look on and 
 see how it is done ; that all men may know that 
 he gets justice and whether he is imposed upon. 
 He is entitled to a speedy trial, not to be kept in 
 prison year after year until it suits the pleasure of 
 his prosecutor to move. He must have a speedy 
 trial, and the courts are authorized, and ought, 
 to discharge a man if he is kept in confinement 
 longer than is reasonable. It must be a trial by 
 an impartial jury. A jury means twelve men of 
 the vicinage, and for that reason the amendment 
 goes on to say that it shall be " by an impartial 
 jury of the State and district wherein the crime 
 shall have been committed." These refer to 
 trials in the United States court, and but for this 
 clause State lines need not be taken into account. 
 But you shall not go out of the State; he shall 
 have the jury summoned from the State and from 
 a district within that State where the crime has 
 been committed, and there he shall be taken and 
 
OF THE UNITED STATES. 88 
 
 (riecl where the transaction occurred. This dis- 
 Irict shall not be changed after the oftense is 
 committed so as to put him in an unfavorable dis- 
 trict. But such district shall have been previously 
 ascertained by law or previously fixed by an act 
 of Congress, and there he shall be tried. Some 
 States in my early days changed the venue by 
 an act of the legislature, but that cannot be done 
 here. He is to be informed of the nature and 
 cause of the accusation ; that is, if he is proceeded 
 against by information, a copy shall be furnished 
 him, and if by indictment, a copy shall also be 
 furnished him. "He shall be confronted with 
 the witnesses against him." If I had the time, 
 I could show you how all of these provisions 
 are jewels. He shall be confronted with the 
 witnesses. You shall not take testimony five 
 hundred miles away, but the witnesses shall con- 
 front him face to face ; he shall look at them 
 and have the opportunity of interrogating them 
 in court. "To have compulsory process lor ob- 
 taining witnesses in his favor." The United 
 States shall give him a process — a process which 
 shall not be disobeyed — a compulsory process 
 for the witnesses that he wants. He may be the 
 poorest man that ever lived, but if he has wit- 
 nesses he has a right to a compulsory process for 
 
84 LECTURES ON THE CONSTITUTION 
 
 their attendance in the courts of the United 
 States, whatever it may be in other courts. "And 
 to have the assistance of counsel for his defense." 
 Now, you think that is quite an easy thing, be- 
 cause there are always lawyers enough, and that 
 there is no need of having a provision for counsel. 
 But up to the year 1836, in the liberal Govern- 
 ment of Great Britain, which has prided itself 
 upon the protection of the subject, no man in- 
 dicted for treason was entitled to counsel at his 
 trial; and up to perhaps 1789 or 1798 — at all 
 events, at the date of the formation of this Con- 
 stitution — no man had a right to the assistance 
 of counsel otherwise than that counsel might sit 
 by and argue questions of law to the court, but 
 had no right to interrogate the witnesses, or make 
 speeches to the jury, or anything of that kind; 
 and our ancestors saw the evil of that, and said 
 that every man shall be entitled to have the 
 assistance of counsel in his defense. 
 
 The more you examine that instrument, gen- 
 tlemen, especially those portions of it concerning 
 these subjects, the more you will see how care- 
 fully personal rights have been guarded by it. 
 Another of these is, that 
 
 "■Excessive bail sliall not be required, nor excessive 
 fines imposed, nor crnel and nnnsnal pinnsliments in- 
 flicted." 
 
OF THE UNITED STATES. 85 
 
 If the offense for winch a man is held for trial 
 is one of that character which is bailable at all in 
 the courts of the United States, you are to regu- 
 late the bail according to his ability to give bail. 
 Five or ten thousand dollars, reasonable to a 
 man in easy circumstances, would be beyond the 
 reach of another man who could give live hun- 
 dred or a thousand dollars. That is the meaning 
 of that clause; and as to cruel and unusual pun- 
 ishment, it means that you shall not cut off his 
 ear, or burn him alive, and all that kind of thing. 
 
 The Constitution stood in that way on the sub- 
 ject of personal liberty and the personal rights 
 of the citizen until the outbreak of the war of 
 the Rebellion. The thirteenth amendment is 
 one whose adoption is in the memory of almost 
 every gentleman who is listening to me, and it 
 will be one of the most memorable of all the 
 amendments to that instrument. It was perhaps 
 the most important of all the amendments, not- 
 withstanding the great value of those which I 
 have commented upon. It reads: 
 
 "• That neither slavery nor involnntiuy servitnde, except 
 as a punishment for crime whereof the partly sliall have 
 been dnly convicted, shall exist within the United States, 
 or any place snbject to their jnrisdiction." 
 
 There is a magnificent provision for the per- 
 
86 LECTURES ON THE CONSTITUTION 
 
 sonal rights of man. There is to be no more 
 slavery. Millions of people, by that simple pro- 
 vision, were translated from a condition of 
 slavery equal to tbat of the most barbarous 
 period that the ancient or the modern world has 
 ever seen, to a condition of liberty, of manhood, 
 of right. This is not the occasion, gentlemen, 
 nor have I the time, to comment upon its im- 
 portance. 
 
 The next is the fourteenth amendment. I 
 have read to you one of its principal provisions. 
 I will read them all: 
 
 ''All persons born or naturalized in the United States, 
 and subject to the jurisdiction thereof, are citizens of the 
 United States, and of the State wherein the}' reside.*' 
 
 That is the first time in any constitutional pro- 
 vision, in any act of Congress, or in any authori- 
 tative form, that the word " citizen " was defined. 
 You will find it all through the books, the speeches, 
 the public discussions of ever}^ kind, but it was 
 never defined authoritatively until it was defined 
 here in this fourteenth amendment. Here you 
 have a citizen of the United States and a citizen 
 of the State in which a man resides. I cannot 
 go into an explanation of that definition, but I 
 refer you to the decision of the Supreme Court 
 in the Slaughter-house Cases, in 16th Wallace, in 
 
OF THE UNITED STATES. 0/ 
 
 which you will find the construction which that 
 
 court has given to these last tlu-ee amendments. 
 
 After that it says: 
 
 ''No State i^hall n-iake or ouforcc any law wliicli sliall 
 al)ii(l«i;(' tli(^ privilet^os or imininiitii'S of citizens of the 
 Unito<l States; nor shall any State deprive any person of 
 life, liherty, or property without due process of law, nor 
 deny to any person within its jurisdiction the equal pro- 
 tection of the laws." 
 
 Gentlemen, closing with that grand sentence, 
 that there shall be no denial of the equal protec- 
 tion of the laws, permit me the further observa- 
 tion that tliis instrument, some fragmentary re- 
 marks on which I have been making to you on 
 these three evenings, is an instrument deserving 
 as sacred and profound reverence as the sacred 
 books of the religions of the world, except the 
 Bible. It is an instrument conceived in wisdom 
 and forethought, adapted to the organization and 
 perpetuity of government — adapted to the security 
 of the rights of the citizen, of the individual. It 
 is an instrument which has stood the progress of 
 almost a hundred years, which has been tested by 
 the events of those years, and its forecast and 
 wisdom have shone brighter and l)righter with 
 every test that has been applied to it. It has 
 withstood the shock of a war of national defense 
 with Great Britain, of a war of conquest against 
 
s^V 
 
 88 LECTURES ON THE CONSTITUTION. 
 
 oar neighbors, the Mexicans, and of a civil war 
 such as never convulsed a nation on the face of 
 the globe. In all this it has come out brighter 
 and stronger; it has exhibited powers calculated 
 for all emergencies; it has shown capacities for 
 promoting the welfare of mankind — the happiness 
 of the people subject to its dominion. There is 
 no subject, gentlemen, to which jou can give 
 your study and your time, your care and industry, 
 that will reward you better, either in your life as 
 citizens, in your profession as lawyers, or as states- 
 men if you should become public men. There 
 is none equal to that instrument of which, in these 
 few evenings, I have attempted to say something 
 in a very desultory way, and to which I have done 
 but very poor justice. And if, gentlemen, you 
 have been as much pleased in listening to these 
 three discourses as I have been in delivering 
 them, I shall have ample compensation for any 
 trouble that I have been at. [Applause.] 
 
 
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