THE DEMOCRACY OF THE CONSTITUTION AND OTHER ADDRESSES AND ESSAYS THE DEMOCRACY OF THE CONSTITUTION AND OTHER ADDRESSES AND ESSAYS BY HENRY CABOT LODGE NEW YORK CHARLES SCRIBNER'S SONS 1915 Copyright, 1915, by CHARLES SCRIBNER'S SONS Published February, 1915 ACS TO THE LITERARY AND HISTORICAL ASSOCIATION OF NORTH CAROLINA IN MEMORY OF THE OPPORTUNITY GIVEN TO ME TO SPEAK TO THEM OF THE CONSTITUTION OF THE UNITED STATES AND OF THE KINDNESS AND HOSPITALITY SHOWN TO ME AT RALEIGH 345278 PREFACE The first five papers in this volume deal with the Constitution of the United States, with the "democ- racy" which it created and limited, and with the changes in it which are now proposed, affecting the courts and the principles of representative govern- ment. I have endeavored to omit, so far as possible, any repetitions, but as all the addresses are concerned with different phases of the same subject there are certain points where the same argument must recur in order to make clear the particular aspect of the question to which the main discussion is devoted. I desire to express to Messrs. Fimk & Wagnalls, to the publishers of the Century, and to the publishers of the Outlook my thanks for their kind permission to reprint three of the essays here republished. Henry Cabot Lodge. TABLE OF CONTENTS Pagb I. The Public Opinion Bill 1 II. The Constitution and Its Makers 32 III. The Compulsory Initiative and Referendum, and THE Recall of Judges 88 IV. The Constitution and the Bill of Rights . . . 106 V. The Democracy of Abraham Lincoln 122 VI. John C. Calhoun 160 VII. Thomas Brackett Reed 186 VIII. An American Myth 208 IX. As TO Anthologies 226 X. The Origin of Certain Americanisms 246 XI. Diversions of a Convalescent 274 THE PUBLIC OPINION BILL^ Mr. President and Gentlemen: I am much indebted to you for your kindness in asking me to address you upon a public question which seems to me to be of the gravest importance. You are the representatives of the great labor organizations of Boston, but let me say at the outset that the meas- ure which I am about to discuss is in no sense what is usually called a labor measure any more than it is a party measure. It is one which affects the entire com- munity, every man and woman alike, without regard to their occupation or position, for it involves a change I Address before the Central Labor Union of Boston, September 15, 1907. The Public Opinion Bill which had been proposed was as fol- lows: Public Opinion Bill as Reported to the House of Representa- tives OF Massachusetts at the Last Session of the Legislature . AN act to authorize THE SUBMISSION TO VOTERS, ON OFFICIAL BAL- LOTS AT STATE ELECTIONS, OF QUESTIONS OF PUBLIC POLICY. Be it enacted by the senate and house of representatives in general court assemhUd, and by the authority of the same, as follows: Section 1. On a request signed by one thousand voters, asking for the submission of any question for an expression of opinion and stat- ing the substance thereof, the secretary o the Commonwealth sha t?Lsmit such request to the State ballot law ^^^^^^^f J>,^'/^^^7^^^^^^ determine if such question is one of pubhc pohcy, and if they so deter- mine shall draft it in such simple, unequivocal, and adequate form as they may deem best suited to secure a f^ir expression of opinion Thereupon the secretary shaU prepare and furmsh suitable forms, each to contain spaces for not more than one hundred signatures, and Tsuch forms shall be signed by five thousand voters, he sha 1 upon the fulfilhnent of the requirements of this act place such question on 1 2 THE PUBLIC OPINION BILL hot in our laws but in the fundamental principles of our government. What I am about to say to you was prepared some months ago, before I left Washing- ton, because I thought that I might desire to discuss this question after I had come home, and I wished to speak, whenever the opportunity occurred, with care and deliberation. This argument was not designed for a special audience, but for any audience of any kind that might care to listen to it, because it concerns equally all citizens of Massachusetts. I therefore do not address you merely in your capacity as representa- tives of our great labor organizations, but in your larger capacity as American citizens, interested above all in the welfare of the community and in the safety and permanence of the republic. the official ballot to be used at the next State election. Forms shall bear the date on which they are issued, and no applications made on forms issued more than twelve months before the election concerned shall be received. Sec. 2. Signers of requests for the issuance of forms and signers of applications shall append to their signatures their residence, with street and number, if any, and shall be certified as registered voters by the proper registrars of voters. One of the signers to each paper shall make oath of the genuineness of the signatures thereto, and a notary public, justice of the peace, or other magistrate, when taking such oath, shall satisfy himself that the person to whom the oath is admin- istered is the person signing such paper, and shall so state in his at- testation of such oath. All provisions of law relating to nomination papers shall apply to such requests and applications as far as may be consistent. Sec. 3. Applications shall be filed with the secretary sixty days before the election at which the questions are to be submitted. Not more than four questions under this act shall be placed upon the bal- lot at one election, and they shall be submitted in the order in which the applications are filed. No question negatived, and no question substantially the same, shall be submitted again in less than three years. THE PUBLIC OPINION BILL 3 There was reported to the legislature during its last session an act known as the '^ Public Opinion Bill." It was brought up in the house, and after a full and very able debate was defeated by a decisive majority. But although this bill and its purposes were well un- derstood in the legislature, I do not think that the gravity of the measure and its far-reaching effect were fully appreciated by the people generally. As a matter of fact, no more fundamental and far-reaching measure has been presented to the legislature of Mas- sachusetts within my recollection. It was not a mere change in legal practice, nor an alteration of long- established laws, nor even a constitutional change, which was proposed. The bill involved all these and much more, for if carried out logically to its full ex- tent, it would mean nothing less than a complete revolution in the fabric of our government and in the fundamental principles upon which that government rests. This may seem an extreme statement, but I think it is susceptible of absolute demonstration, be- cause this bill, if it should become law, would under- mine and ultimately break down the representative principle in our political and governmental system. To make my meaning perfectly clear it will be neces- sary to consider briefly and historically the principles upon which all government rests and the instruments by which it is carried on. Our division of the depart- ments of government into executive, legislative, and 4 THE PUBLIC OPINION BILL judicial, with which we are entirely familiar, and which the Constitution of the United States made co-ordinate and independent, is not a new classification, but repre- sents in whole or in part the recognized and essential foundations of all modern governments. The first method of government devised by man took the very natural form of a leader or chief. The recognition of a leader, indeed, may almost be described as a natural instinct, for leaders are common among herds of wild animals. The organization of government, therefore, by the recognition of a chief whose direction and com- mand have greater or less authority is found even among the most primitive races of men, except per- haps among a very few tribes in the lowest stages of development who live in a condition of practical anarchy. The leader or chief of the savage tribe is the executive. He often, in the earliest times, com- bined with the executive power the religious fimction of high priest and the judicial function of deciding disputes among his followers. When we come to the great empires of which we have the earliest records, we find the executive fully developed, sacred in his person, and vested with authority which in effect made the government a despotism. All despotisms consist in the absorption of power by the executive, whether that executive is a single autocrat, as is usual, or a narrow oligarchy like the Council of Ten at Venice. The despot may or may not have ceased to exercise the judicial THE PUBLIC OPINION BILL 5 function personally, but if he has created judges they exercise their powers only in his name. As for laws, he makes them all himself, and you can read to-day the laws of Babylon promulgated six thousand years ago and bearing the name of the king who made the code. In the supposed power of the king to cure disease by his touch, which was exercised in England by Queen Anne only two hundred years ago, as well as in the theory of the divine right of kings and in the right of the subject to appeal to the king for re- dress, which have endured to our own times, you may witness the survival of the doctrines of the most an- cient governments known, when all functions, religious, judicial, and legislative, were represented by the executive. Coming down from the most ancient times we find in Greece and Rome a theory of government not known, so far as we are aware, to the more ancient Eastern monarchies. The governments of Greece, as a rule, and the government of Rome were foimded on the principle that the f reeborn people of the city should gov- ern themselves and choose their executive officers; in other words, we have there the idea of the New England town meeting. It would consume too much time for me to trace in detail the story of Greek and Roman government. The Greek cities were torn with factions, which led to the banishment of one party when the other was in power, to constant lapses into tyranny, and to complete inability to build up a strong, exten- 6 THE PUBLIC OPINION BILL sive, well-organized state. Even the genius of Alex- ander failed to create a Greek empire, and when he died all that he had brought together under a single head fell to pieces. Rome started and went on for many centuries with the government of a city democracy torn by the bloody strife of classes and varied by relapses into oligarchies and dictatorships. The Romans had in the highest degree the genius of government as well as the genius for war, but never- theless when their dominions had become almost coextensive with the civilized world, government by the great senatorial families, tempered by the mob of the Roman Forum, went to pieces in corruption and disorder and the earlier and simpler form of an all- powerful executive supervened. - From the break-up of the Middle Ages, which suc- ceeded the fall of the Roman Empire, gradually emerged the kingdoms of modern Europe. In every case but one those kingdoms developed into autoc- racies, great or small. That single exception was England, and it is merely reiterating a truism to say that what saved England from becoming one of the despotisms which arose and flourished in Europe after the breakdown of the feudal system was her Parlia- ment. In that Parliament we find for the first time, on a large scale, the representative principle. England did not have as pure a democracy, in theory or prac- tice, as Greece or Rome, but both Greece and Rome THE PUBLIC OPINION BILL 7 lost their liberties and England saved and extended hers. The rise of the modern despotisms of Europe, after the beginning of the sixteenth century, was marked by the gradual disappearance of those local representative bodies which had existed in the Middle Ages. The city republics of Italy, based on the theory of Rome and Athens, fluctuated between anarchy and tyranny until they all fell into the hands of domestic or foreign despots. Holland alone, of all the countries of Europe, preserved the freedom of her cities and her representative system, and it was Holland, a part of the empire of Charles V, which broke the power of Spain, and retaining the principle of representation, became under republican forms a free and powerful state. Wherever you look into the histoiy of the last four hundred years you will find that the rise and the power of the representative body are coincident with liberty, and that the rise of despotism is coincident with the breakdown of whatever representative bodies there may have been. The histoiy of the representative principle in modern times is the histoiy of political freedom, and this representative principle is the great contribution of the English-speaking people and of the period since the Renaissance to the science of gov- ernment. Without that principle the democracy of Greece failed to build up a nation coextensive with the spread of the Greek settlements and conquests, 8 THE PUBLIC OPINION BILL while that of Rome sank under a complete despotism. The empire of the first Napoleon and of the third Napoleon as well were both reared on the ruins of the legislative bodies of France. Examples might be mul- tiplied, but nothing is clearer than that every lasting advance which has been made toward political freedom has been made by and through the representative prin- ciple. Even to-day the struggle in Russia seeks, as its only assurance, the establishment of a representa- tive body. Indeed, the movement for a larger political freedom and for the right of the people to take part in their own government, which has filled Europe for the last century, is penetrating now to countries out- side the pale of Western civilization, and the existence of this movement in Persia, in Turkey, and in China is inanifested by the efforts in all these countries to- ward securing representative institutions. In a word, it may be said that the advance toward political liberty and the establishment of the rights of the people to govern have been coincident and gone hand in hand with the progress of the representative principle. It is also to be noted that the independence of the judiciary, the other great bulwark of liberty and of the rights of the individual, has followed every- where upon the growth and success of the representa- tive principle in government. The destruction of this principle, therefore, would mean reaction and the re- turn to the system of an all-powerful executive. There THE PUBLIC OPINION BILL 9 could be no greater misfortune to free popular gov- ernment than to weaken or impair the principle of representation, and the quickest way to break that principle down is to deprive the representative bodies of all responsibility and turn them into mere machines of record. You cannot take from your representative bodies all power of action and all responsilDility and expect them to survive. If you bind a man's arm to his side and prevent its use and motion the muscles weaken, the arm withers, and in time becomes atrophied and useless. If you force the legislature to deal with certain measures under a mandate which practically compels them to vote upon these measures in only one way, you take from your representatives all responsibil- ity and all power of action, and the representative prin- ciple in your government will atrophy and wither away until it becomes in the body politic, like some of those rudimentary organs in the natural body, quite useless and often a mere source of dangerous disease. This Public Opinion Bill does this very thing, for it aims directly at the destruction of representative re- sponsibility, and I think, although it received the support of many excellent people who did not pause to consider it carefully, that it found its origin among those small groups whose avowed purpose is to destroy our present institutions and forms of government and replace them with socialism or anarchy. The advocates of the bill continually raised the 10 THE PUBLIC OPINION BILL parrot cry that those who opposed it did not trust the people, and some persons were found who actually seemed to think that instructions from a town or other constituency, which were more common a century ago than they are to-day, were equivalent to a Public Opin- ion Bill and that there was some legal obstacle at the present time to such instructions. There is no re- lation or parallel whatever between instructions of this kind and the scheme proposed by this bill, nor is there anything to prevent instructions by a constituency ex- cept the practical one caused by the increase in numbers of the electorate. The use of instructions has died out, although they are still employed occasionally, simply because improved means of communication and the growth of commercial, labor, and trade or- ganizations have made other methods of reaching the same result quicker, easier, and more practicable. But this fact does not impair the rights of a constituency in the least, and any constituency can avail itself of this right if it so desires, for it is one of which no con- stituency could be deprived except by constitutional amendment. Every constituency, I repeat, has the right now, as always, to issue instmctions to its representative if it can agree upon them, just as it has the right of petition; but that is a very different thing from the final deter- mination by ballot of every possible abstract question by a popular vote. It is worth while to emphasize THE PUBLIC OPINION BILL H this difference, for it throws Hght upon the whole ques- tion. The constituency, in the first place, instructs only its own representatives. It does not undertake to instruct the representatives of other constituencies, but only its own, thereby recognizing the representa- tive character of the member or senator or congress- man whom it has chosen. The instructions, moreover, are passed by a meeting where they can be discussed, amended, and modified, and where the arguments of both majority and minority can be heard. The con- stituency in passing instructions is not confined to a blind, categorical "yes'^ or '^no'' upon a question where neither amendment, discussion, nor modifica- tion is possible. They act themselves only with the same safeguards which have been thrown about the passage of laws in the legislature. They are not the helpless mstrument of a plebiscite, but freemen setting forth their opinions in the manner which the history of free government has consecrated. Instructions from a constituency are the very antithesis of the " mandate '^ which it is proposed to extort or cajole from the people by such a scheme as this Public Opin- ion Bill. As to the cry that those who opposed this bill showed by so doing that they did not tmst the people, no more unfounded and misleading argument was ever uttered. Suppose I say to you that I do not think that you can read in the dark. Do I thereby imply that your eyes 12 THE PUBLIC OPINION BILL are bad or that I think that you are ignorant and ilHterate ? Because I say that you cannot read in the dark am I therefore to be accused of exhibiting dis- trust in your inteUigence or your education? ^Vhat I distrust and assail as a barrier to reading is the dark- ness. In order to read you must have hght. In order to make wise laws you must have light to see whither you go and not make wild plunges in the dark. For good laws you must have good methods of lawmaldng. I do not distrust the people who make the laws but I distrust methods of lawmaking which would force good people to make bad laws. More than three hundred of our Massachusetts communities govern themselves in town meeting. They are the purest democracies the world can show. They elect their executive officers by ballot. But all questions as to the policies and government of the town are submitted to the meeting on the warrant and are open to debate, to amendment, to reference to a committee and to postponement. Do I distrust the people because I say that these questions ought to be submitted in precisely this way and that this op- portunity for debate, amendment, and postponement should be given and that the voter should not be com- pelled to vote ^'yes" or "no" upon every question in the warrant without debate or delay ? The people of our towns would never assent to such a change or allow themselves to be deprived of full opportunity THE PUBLIC OPINION BILL 13 for debate, amendment, and postponement, and yet that is just what the PubHc Opinion Bill proposes to inflict upon the people of the State at large. Here is another illustration of my meaning drawn from the very principle which I seek to defend and pre- serve. I believe profoundly in representative govern- ment, but when I say that I am opposed to a single representative chamber, I am not showing distrust in representative government, but in a form of representa- tive government which history and experience have proved to be fertile in evils. Let me, however, take an example, which exhibits my meaning and demonstrates my proposition better than anything else, from our administration of justice, at once the corner-stone and the bulwark of a free and well-ordered state. We determine differences between individuals and we try men and women for crime by judges and juries. Is it to be argued that because we say that a man shall not be tried for his life by a mass meeting or a popular vote, but by a judge and twelve jurymen under the forms and regulations of law, we do not trust the people ? Has not experience shown that no man's rights or life would be safe unless there was secured to him under the strongest guaranties the right of trial by jury? The Ijnich law, against which all decent men protest, is often carried out by mass meet- ings frequently representing the passions and beliefs of an entire community. Is it a failure to tmst the 14 THE PUBLIC OPINION BILL people because we insist that the legal rights of the people themselves cannot be preserved unless they are determined by a judge and jury? It is exactly the same in regard to legislation. Intelligent laws cannot be passed without consideration, debate, deliberation, and the opportunity for amendment. To answer "yes" or "no" on an abstract question is to legislate by ballot without any of the safeguards which represent- ative government throws around the making of laws. Plebiscites of this sort have determined and fixed the power of autocratic emperors, but they have never made the laws of a free people. This Public Opinion Bill is not even a referendum, for the referendum sub- mits to popular approval a perfected measure, and in the case of purely local questions it is often used by our legislature. What is called the initiative is now covered, for all reasonable purposes, by the right of petition, but this Public Opinion Bill puts both initia- tive and referendum into one act and provides for the submission to the people not of perfected law but of any abstract question which any thousand people choose to suggest and which any five thousand voters can be found to sign, and upon which the people have no opportunity to do more than vote categorically "yes" or "no." You cannot hesitate, you cannot modify, you cannot amend, you cannot postpone. The pistol is at your head; throw up your hands and answer " yes " or " no " at your peril. There are four questions THE PUBLIC OPINION BILL 15 on the ballot. Only one probably has been discussed, and that insufficiently, for perhaps thirty days. No matter; you must answer ''yes" or "no" on all four, and the legislature must in reality, whatever theoret- ical liberty it is supposed to retain, obey the mandate. There is to be no chance for reconsideration, no time for reflection or for second thought. Those who supported this bill appeared to be under the pleasing delusion that no questions would find their way onto the ballot except those which made for the obvious improvement of society or those which advanced their own particular interests. There could be no more mistaken belief. Under this bill every sort of question would make its way onto the ballot. The only real condition is the five thousand signatures, for one thousand voters can suggest, and the duty of the officer who puts the question upon the ballot is purely ministerial, so that to obtain these five thousand signatures would only mean the expenditure of a little time and a little money. The adroit and unscrupu- lous, with schemes for their own profit or with devices to injure their opponents, would be much more likely to get questions placed upon the ballot than any one else. Propositions which if adopted might do infinite injustice to the great body of our working people, could easily be framed so as to appear quite harmless and catch the popular vote. Then, if adopted, the legisla- ture would be bound under the mandate by the power- 16 THE PUBLIC OPINION BILL ful instinct of self-preseiTation and the innate desire of shifting responsibihty, if not by the terms of the statute itself, to embody them in the law. I have seen it asserted that this system would break the power of the "boss" and the lobbyist. On the contrary, it would give to those who make a business of politics and who seek legislation for their own profit an un- rivalled opportunity, for they would be always pre- pared; they would have their five thousand signatures always ready; they would shut out by dummy ques- tions all others which they did not like and place upon the ballot questions artfully drawn to serve their own purposes. Where organization, money, and perfect read- iness are all that are required, the professional politician with a personal or pecuniary interest at stake and un- troubled by scruples will defeat and outwit the ama- teur and outsider nine times in ten. It is exactly because I trust the people and desire that they should have every advantage that I oppose such revolutionary legislation as this. To compel the people to legislate in a manner practically impossible for any very large body of voters is to do an injustice to the people them- selves. It would be like compelling the people to decide by ballot upon the authority of what they happened to have read in the newspapers or to have heard from their neighbors whether a man was guilty of murder or not, and then find fault with them because they reached an erroneous decision. THE PUBLIC OPINION BILL 17 The people would not be to blame for the wrong de- cision, but those who forced upon them a method of trying a criminal case which in its very nature was utterly impossible in practice. Under this bill the people are to be asked to legislate by saying ''yes'' or "no'' to any question, no matter how abstract or how complicated, which any one can manage to have placed on the ballot. To deal with such questions by a categorical answer is absurd. It is the easiest thing in the world to frame a question to which a categorical "yes" or "no" is impossible. Take the familiar one. "Have you stopped beating your wife?" Answer it "yes" or "no" and see where it leaves you. Abstract questions can just as easily be framed to which a cate- gorical "yes" or "no" would be utterly misleading, perilous, and unrepresentative. No people, no matter how inteUigent, could legislate in such a way as this otherwise than disastrously. There would be no op- portunity for modification or amendment, for repeated votes on different stages, or for debate. There would be but little chance for discussion, and good legislation without the opportunity for debate, amendment, and deliberate consideration is an impossibility. Less than one per cent of the voters of the commonwealth would have imder this bill the power to force upon ninety- nine per cent of the voters any kind of question they chose to devise and compel them to say "yes" or "no" to it. Thousands of voters either through indifference 18 THE PUBLIC OPINION BILL or still more through lack of opportunity to under- stand the question would refrain from voting, and an imperative mandate to the legislature might be carried by a small minority of the voters. Let me ask your attention to some figures in order to give you a vivid idea of what I mean and to show how imperfectly "yes" and "no" votes, taken in this way, can be relied upon as reflections of the real will and true opinion of the people. These votes which follow were given upon constitutional amendments, the most serious questions which can be submitted, because they involve changes in our organic law and were submitted with all the care and deliberation which the framers of our Constitution could provide. I ask you to consider those figures, for they demon- strate the utter falsity of the proposition that you can reach a true expression of the opinion of the people of Massachusetts by the methods proposed in this bill. In no one of these ten instances did one half, in most of them nothing like a half, of the actual registered voters of the State cast their votes on the amendments thus submitted. Of those who went to the polls, in three cases less than one half voted either way on the amend- ments. In one case barely more than half voted, and in the remaining six more than a third to more than a quarter failed to vote either way. In no case was the amendment either carried or defeated even by a ma- jority of those who went to the polls, far less by a THE PUBLIC OPINION BILL 19 POPULAR VOTES UPON ARTICLES OP AMENDMENT TO THE CONSTITUTION OF MASSACHUSETTS Date Vote on amendment V^ote for governor Not voting Amendment Yes No Total ^ Nov. 4, Change of residence 1S90 in the State not to disqualify a voter for certain oflQces for six months.... 97.177 44,686 141,863| r 143,603 Certain soldiers, etc., not disfran- chised who have 285,526 ^ received aid from town or not paid a poll tax 100.109 27,021 127.130 158,396 Nov. 3, Abolishing tax 1891 qualification for voters for govern- 1 or, lieutenant-gov- 1 1 ernor, and mem- 1 bers of the general court 144,931 53,554 198,485 123,165 A majority of each branch of the gen- I 321,650 eral court shall constitute a quo- ]»y^j]2 152,688 29,590 182,278 [ 139,372 Nov. 8, AboUshing property 1892 qualification for office of governor.. 141,321 68,045 209,366 399,698 190,332 Nov. 7 AboUshing mileage 1893 to members of the general court 125,375 80,855 206,23C 365,012 158,782 Nov. 6 Election of commis- 1894 sioners of insolv- ency aboUshed . . 114.499 34,741 149,24( ) 335,354 186.114 Nov. 3 , Biennial elections- 1896 Treasurer's term of office limited to three years . 115,50. J 161.26: i 276,76 i ■ r 108.29e 1 Biennial election oi I 385,06' H senators and rep- resentatives . 105.58 9 156.21 1 261,80 . [113.26^ 1 Nov. ^ >, Authorizing the gov - 1907 ernor, with th( consent of th council, to remov 3 3 B justices of th e peace and notarie public s . 178.0C 5 35.9S \9 213,9^ >4 373,69 5 159.701 1 - 20 THE PUBLIC OPINION BILL majority of the voters of the State, and yet this list includes the vote on biennial elections, which was debated and discussed everywhere for many weeks. Let me take another example from a neighboring State, the State of Maine. VOTE UPON CONSTITUTIONAL AMENDMENTS AND LAWS SUBMITTED TO THE PEOPLE OP MAINE Year Amendment Vote on amendment Yes No Total Vote for governor Not voting 1875 1880 1884 1888 1892 1900 1904 Election of State sena- tors by a plurality vote Codification of amended constitution Election of governor by plurality Amendments to prohib- itory laws Term of office of State treasurer Whether adjutant-gen- eral should be ap- pointed or elected Educational qualifica- tion of voters Whether office of State auditor should be cre- ated Increasing compensa- tion of members of the legislature 16,419 17.841 57,015 70,789 12,947 9.721 25,775 13,095 11,047 4,970 3,104 35,402 23,811 10.249 9,509 18,061 16,609 18,061 21,389 20,945 92,417 94,600 23,223 19,230 43,836 29,704 44,582 111.665 147,802 142,107 145,384 130,962 117.878 131,512 90.276 90.720 55.385 47.607 122.160 111,732 87.126 88.174 86.930 Let us examine this table as we did that of Massa- chusetts. In only two cases out of nine did more than half of the voters who went to the polls vote upon the question submitted, and in each of those cases a third of those who went to the polls failed to vote on the submitted question, quite enough in each case to have reversed the result. In five of the remaining seven THE PUBLIC OPINION BILL 21 less than a fifth of the voters who went to the polls, and in two only a quarter, voted on the submitted question. The people of Maine and Massachusetts are of a high average of inteUigence. They are active, alert, and have been for generations accustomed to deal with every form of political questions, and yet these tables show that even on constitutional amendments sub- mitted on the ballot no expression could be obtained from a large majority of the voters, and, as a rule, not even from half of those who voted for governor and representative. It is apparent, in other words, that the people of these States do not like to govern them- selves in this way and that the very men who will vote for governor and representative will not vote on submitted questions, because, as a rule, they do not feel that they have had opportunity to consider them and do not take a proper interest in them. Such a condition of things proves that to substitute legislation by ballot for legislation by representation is to cripple the rights of the people and permit interested, fanatical, or corrupt factions, by superior organization and in- tensity of purpose, to dictate the laws of the entire community. These figures show the absolute truth of my assertion that questions submitted in this way are decided by a majority of a minority, and if this is true of constitu- tional amendments, fully and plainly stated, you can 22 THE PUBLIC OPINION BILL imagine what it would be on abstract questions, un- known, blind; uncomprehended; and incomprehensible. These figures demonstrate beyond a peradventure that no true public opinion can be obtained in this way, but that on the contrary this bill is a scheme to secure legislation which could not obtain the assent of the voters properly expressed through chosen and respon- sible representatives. It is a device to enable small and active minorities to obtain legislation which they could not secure by legitimate methods. Representa- tives represent the whole people. This bill would force upon us a government by a fraction of the peo- ple and would defeat the will of the real majority of the people themselves. Yet the legislature would have no choice. They would be bound in conscience and in practice, if not by the words of the statute, bound in a manner and forced by a pressure from which there would be no escape, to obey the mandate no matter how obtained, and no man could tell in what form of law the mandate would be finally embodied. The chances are that the law under the pressure of the mandate would be the work of extremists and contrary to the wishes even of those who voted "yes'' on the abstract proposition. There could be no greater travesty on popular govern- ment than a system which would permit a majority of a minority of the voters to force upon the State any law they chose. It would give an enormous oppor- THE PUBLIC OPINION BILL 23 tunity to the power of money skilfully and corruptly used. It would impair the rights of the people and leave those of the individual naked and defenceless. The result would not be an expression of the popular will, but a mechanical parody of that will so gross that even its authors would gaze upon it with amaze- ment and disgust. All these plans to make the people carry on their government by impracticable methods are not only unjust and dangerous to the people and to the public welfare, but they tend to bring all popular govern- ment into discredit. Do not misunderstand me. I attach no superstitious reverence to forms of govern- ment. I make no fetich of laws and constitutions, for constitutions are made for men, not men for constitu- tions. I have no patience with the theory held by some persons, and often pernicious in its activity, that human nature can be changed and all men made vir- tuous and happy by statute. People, according to my observation, get in the long run the government they desire and deserve, and if they suffer from bad govern- ment, it is because they are too inert, or too incapable, or too timid, or perhaps too corrupt to secure anything better. Government and the success of government in the last analysis depend on the character of the peo- ple themselves. People with a high capacity for self- government will make a bad system work well or at least tolerably well, while people without that capacity 24 THE PUBLIC OPINION BILL will come to confusion and ruin under the most ideally perfect system which the wit of man can devise. But while it is profoundly true that people make laws, not laws people, the importance and effect of laws, con- stitutions, and political institutions are none the less veiy great. The essential point is to comprehend in what that importance consists and to gauge rightly the effect and educational force of laws and constitu- tions; in a word, to realize what laws can and what they cannot do. We must not forget that if statutes cannot change the laws of nature, it is equally a mis- take to accept the Quietist doctrine of Pope when he said in his familiar lines: "For forms of government let fools contest; Whate'er is best administered is best." Allow me now to illustrate my meaning. Wise economic laws affecting the currency or the tariff cannot of themselves make prosperity. They can help very greatly to bring prosperity if a people be energetic and industrious and other conditions are favorable, but alone they cannot do it. On the other hand, bad economic laws, especially such as affect the circulating medium, can unaided and alone bring panic and disaster. To state this as a general proposi- tion, we may say that while the effect of good economic laws for good is limited, the effect of bad economic laws for evil is unlimited. The power of economic THE PUBLIC OPINION BILL 25 statutes to injure is much greater than their power to benefit. This rule appHes not only to all economic legislation but to all laws. There is no panacea for human ills to be found in statutes. Statutes may help greatly, they may and do modify and alleviate and improve evil conditions, they may, according to the theory of Aristotle, direct the conduct of men to a moral result, but there their possibilities end, and many misfortunes have happened to mankind from the mistaken concep- tion of the potentialities of statute-making. On the other hand, the power of bad laws to bring on ruin, dis- aster, civil strife, and the downfall of governments and nations is practically unbounded. It is, then, of the last importance to consider carefully what the full effect of any law will be and not to open the door for the sake of an apparent remedy for some special evil to a thousand worse evils which might involve all in a common disaster. Therefore laws not only assume a vast importance, but also the methods and instmmen- talities by which they are made. Good laws are not to be expected if you impose conditions upon their making incompatible with good results. The best glazier in the world cannot cut a square of glass if you insist that he shall do it with a broadaxe or a pointed stick. Under such conditions he would merely smash the glass, and you and not he would be to blame. You must give him a diamond point, and you will get your 26 THE PUBLIC OPINION BILL window-pane. You can impose conditions upon a people under which it will be impossible for them to secure good legislation, and it will not be any reflec- tion upon them or their capacity for self-government if they bring forth laws which work ruin and disaster as widespread as they are needless. It shows no more distmst to insist that the people shall use wise and well- tried methods of legislation to obtain the laws they desire than it shows distrust of the glazier to insist that he shall use a proper tool to cut his square of glass. I have heard it asked whether those who opposed this bill thought that the American people had ever decided a great question wrongly. My answer would be '^ no" so far as concerns all the greatest questions of our history which have been decided by the people on full consideration and under the conditions prescribed by our Constitutions and laws. The Revolution, the adoption of the Constitution, the preservation of the Union, the abolition of slavery, the integrity of the public debt, the maintenance of the gold standard, all these great questions were decided by the people rightly and nobly, but only after years of discussion and under the conditions of representative government. If, on the other hand, you ask me if the popular decision in a moment of excitement and clamor, with no opportunities for deliberate discussion, has always been right, I answer "no," and I will give you an example from the history of this State. A little more THE PUBLIC OPINION BILL 27 than fifty years ago there was a movement here called the Native American or Know Nothing movement. It was carried on by secret oath-bound organizations. They not only swept the State and crushed Whigs and Democrats out of existence, but they actually elected all but two of the members of the legislature. If they had not been restrained by the Constitution and by the laws and the methods of representative government, they would have excluded from citizenship every man of foreign birth or of a different religion from their own. If they had been acting under a popular mandate, which would have been easily obtained in that year, to the effect that only citizens of American birth and of the Protestant faith should be entitled to citizenship, that constitutional change would have been made. But as there was no Public Opinion Law the legislature were only bound to the general principles of their party; they were not deprived of motion and sense of responsibility by a mandate. They were open, even with all their power, to the effect of public opinion expressed by a strong minority outside, and they had time for reflection and for cooling down. Thus, by the forms of representa- tive government and by the absence of anything re- sembling the mandate for which the Public Opinion Bill provides, they were held back from the violent extremes which the passions flagrant at the election would have demanded and enforced. I think it was very fortu- nate that they were so restrained, because the decision 28 THE PUBLIC OPINION BILL of the people at the polls in that year of passion and excitement was, in my opinion, utterly wrong, when tried by the true principles of free American govern- ment. In a few years every one else thought so, too, after the madness had passed. You say such things could not happen to-day. I hope not, but human passions have not changed, and in moments of excite- ment men are capable of acts which, on reflection, they would not entertain for a moment. It is to secure ample opportunity for deliberation and reflection that representative government exists, and it is incon- ceivably precious not only to the individual man, whose rights are at stake, but to the wider interests of the whole community. I trust the people fully. I believe, what the authors of the bill deny, that they are able to choose their own representatives and to control them. I do not think the people are so weak or so stupid that they cannot choose men who will fitly represent them, and that they cannot reject their representatives if those rep- resentatives do not perform their duties. I think the people are eminently capable of governing themselves by proper methods, and that their power should not be distorted and crippled by impossible devices. But the great and fundamental objection to this bill is the destruction of the representative principle which it necessarily involves. When that is broken down nothing remains but the executive and the courts. THE PUBLIC OPINION BILL 29 With the representatives deprived of power the courts would not long retain their independence, and when the executive department alone survives we are well on the road to despotism. The resort to the plebiscite is the favorite device of the usurper and saviour of so- ciety. His opportunity comes when disorder, license, and wild legislation have driven the mass of men to a readiness to sacrifice liberty in the determination to have peace and order, a sad and desperate situation, famihar, unhappily, in the world's history. Moreover, the advent of the strong man and the army is always coincident with the breaking down of representative government. What we want, above all things, is to preserve the representative bodies which have ever been the guardians of freedom and of popular liberties in this country. I trust the people so thoroughly that I believe they can conduct their government with honor and success, as they have done for so many generations. Times change and conditions change with them. We must meet the new times and the change in conditions with the legislation which they demand, but in dealing with our new problems it is not necessary to cast away the instrument by which every reform and every im- provement have hitherto been effected. I am not one of those who believe that all wisdom died with our forefathers. I am equally far from believing that all wisdom was born yesterday. This is not a new ques- tion, but involves the oldest theories of government. 30 THE PUBLIC OPINION BILL and here, if anywhere, history and experience are safe and illuminating guides which only ignorance and folly would neglect or disregard. The great men who framed our Constitution provided both in state and nation for checks and balances because they believed that the rights of the people could only be protected if every possible safeguard was thrown around the law- making power. They believed that that power ought only to be exercised with the utmost care and delibera- tion, and in seeking that care and deliberation they believed that they were protecting the rights of the people. They saw in hasty legislation great perils, and they never had the slightest fear that the legisla- tive body would not respond quickly enough to the popular wishes. They had a great dread of executive power and a deep desire to protect the rights of minor- ities. The majority, they believed, ought to rule, but they wdshed to be very sure that majority rule should not be rashly or hastily exercised. They wished the members of a majority to remember that they might find themselves any day in a minority, and therefore they took the utmost pains to secure every opportu- nity in legislation for debate and amendment. " They wished men to be free, As much from mobs as kings, from you as me." Experience has shown us the justice of their opin- ions. This bill invites us to cast aside all that they THE PUBLIC OPINION BILL 31 did, break down every method of lawmaking which they estabhshed, and reject that principle which they most valued— the principle of representation. I say, reject the principle of representation, because when you impair it and take from your representatives all power and all responsibility, the principle of repre- sentation falls. No men invested with the power to make laws, but relieved of all responsibility for the laws they make, are to be trusted. We may change many things, we may abolish laws and put new ones in their place, but we cannot alter the fundamental principles of our government and expect the fabric to stand. If we undermine and overthrow the bulwarks of ordered liberty and individual freedom, the citadel itself will not long survive. Any measure which breaks down free representative government, advances us proportionately on the road to executive government, to the rule of one man. This Public Opinion Bill wiU reduce the representative on one question after another to the level of a machine. As the representative prin- ciple sinks the executive power rises. I believe in maintaining both and maiming neither. I am opposed to crippling and extinguishing representative govern- ment. I love freedom and hate tyranny, and anything which depresses the one and opens the road to the other will meet with resistance from me. It is for this reason that I oppose this bill. THE CONSTITUTION AND ITS MAKERS ^ Before this society and on such an occasion, to speak on any topic not connected with the history of our common country would hardly be possible and would certainly not be fitting. I have, therefore, chosen a subject which touches the history of the United States at every point. I shall try to set before you some of the results of a great work in which your State and mine alike took part a century and a quarter ago, and which possesses an interest and an importance as deep and as living to-day as at the moment of its in- ception. I shall touch upon some present questions, but I shall speak without the remotest reference to politics or parties, for my subject transcends both. I shall speak as a student of our history with reverence for the past and with a profound faith in the future. In a word, I shall speak simply as an American who loves his country ''now and forever, one and insepa- rable.'^ A little less than twenty-five years ago great crowds thronged the streets of Philadelphia. Men and women were there from all parts of the United States; the * An address delivered before the Literary and Historical Association of North Carolina at Raleigh, N. C, November 28, 1911. 32 THE CONSTITUTION AND ITS MAKERS 33 city was resplendent with waving flags and brilliant with all the decorations which ingenuity could suggest, while the nights were made bright by illuminations which shone on every building. Great processions passed along the streets, headed by troops from the thirteen original States, marching in unusual order, with Delaware at the head, because that little State had been the first to accept the great instrument of govern- ment which now, having attained its hundredth year, was celebrated in the city of its birth. Behind the famous hall where independence was declared an immense crowd listened to commemorative speakers, and the President of the United States, a Democrat, honored the occasion with his presence and his words. Two years later, in 1889, the same scenes were re- peated in New York. Again the cannon thundered and again flags waved above the heads of the multi- tude gathered in the streets, through which marched a long procession, both military and civil, headed as before by the representatives of the original thirteen States. Again, at a great banquet, addresses were delivered, and once more the President of the United States, this time a Republican, honored the occasion by his presence, and in the name of all the people of the country praised the work of our ancestors. In Philadelphia we celebrated the one-hundredth anniversary of the formation of the Constitution of the United States. In New York we commemorated the 34 THE CONSTITUTION AND ITS MAKERS one-hundredth anniversary of the inauguration of the government which that Constitution had brought into being. Through all the rejoicings of those days, in every spoken and in every written word, ran one un- broken strain of praise for the great instrument and of gratitude to the men who, in the exercise of the highest wisdom, had framed it and brought it forth. All men recalled that it had made a nation from thirteen jarring States; that it had proved in its interpretation flexible to meet new conditions and strong to withstand in- justice and wrong; that it had survived the shock of civil war; and that under it liberty had been protected and order maintained. The paean of praise rose up from all parts of this broad land unmarred by a dis- cordant note. Every one agreed with Gladstone's fa- mous declaration, that the Constitution of the United States was the greatest political instrument ever struck off on a single occasion by the minds of men. We seemed, indeed, by all we then said and did to justify those foreign critics who reproached us with our blind reverence for our Constitution and our almost superstitious behef in its absolute wisdom and unex- ampled perfections. Those celebrations of the framing of the Constitu- tion and of the inauguration of the government have been almost forgotten. More than twenty years have come and gone since the cheers of the crowds which then filled the streets of New York and Philadelphia THE CONSTITUTION AND ITS MAKERS 35 — since the reverberations of the cannon and the elo- quent voices of the orators died away into silence. And with those years, not very many after all, a change seems to have come in the spirit which at that time pervaded the American people from the President down to the humblest citizen in the land. Instead of the universal chorus of praise and gratitude to the framers of the Constitution the air is now rent with harsh voices of criticism and attack; while the vast mass of the American people, still believing in their Constitution and their government, look on and listen, bewildered and confused, dumb thus far from mere surprise, and deafened by the discordant outcry so suddenly raised against that which they have always reverenced and held in honor. Many excellent persons believe apparently that beneficent results can be at- tained by certain proposed alterations in the Constitu- tion, often, I venture to think, without examination of the history and theory of government and without measuring the extent or weighing the meaning of the changes which are urged upon us. But it is also true that every one who is in distress, or in debt, or discon- tented, now assails the Constitution, merely because such is the present passion. Every reformer of other people's misdeeds — all of that numerous class which is ever seeking to promote virtue at somebody else's expense — pause in their labors to point out the sup- posed shortcomings of our national charter. Eveiy 36 THE CONSTITUTION AND ITS MAKERS raw demagogue, eveiy noisy agitator, incapable of con- nected thought and seeking his own advancement by the easy method of appealing to envy, malice, and all uncharitableness — those unlovely qualities in human nature which so readily seek for gratification under the mask of high-sounding and noble attributes — all such people now lift their hands to tear down or remake the Constitution. In House and Senate one can hear attacks upon it at any time and listen to men deriding its framers and their work. No longer are we criti- cised by outsiders for having a superstitious reverence for our Constitution. Quite recently I read an article by an English member of Parliament (Mr. L. T. Hob- house), a Liberal, I believe, with Socialist proclivities, who said that this reproach of an undue veneration for the Constitution ought no longer to be brought against us, because beneficent and progressive spirits were al- ready beginning to pull it to pieces and were seeking to modernize it in conformity with the clamor of the moment. All this is quite new in our history. We have as a people deeply reverenced our Constitution. We have realized what it has accomplished and what protection it has given to ordered freedom and in- dividual liberty. Even the Abolitionists, when they denounced the Constitution for the shelter which it afforded to slavery, did not deny its success in other directions, and their hostility to the Constitution was one of the most deadly weapons used against them. THE CONSTITUTION AND ITS MAKERS 37 The enmity to the Constitution and the attacks upon it which have developed in the last few years present a situation of the utmost gravity. If allowed to continue without answer, they may mislead public opinion and produce the most baneful results. The people of the United States may come to believe that all these attacks, in a measure, at least, are true. Therefore if they are not true, their falsity ought to be shown. Beside the question of the maintenance or destruction of the Constitution of the United States all other questions of law and policies sink into utter insignificance. In its presence party lines should dis- appear and all sectional differences melt away like the early mists of dawn before the rising sun. The Constitution is our fundamental law. Upon its pro- visions rests the entire fabric of our institutions. It is the oldest of written constitutions. It has served as a model for many nations, both in the Old World and in the New. It has disappointed the expectations of those who opposed it, convinced those who doubted, and won a success beyond the most glowing hopes of those who put faith in it. Such a work is not to be lightly cast down or set aside, or, which would be still worse, remade by crude thinkers and by men who live only to serve and flatter in their own interest the emo- tion of the moment. We should approach the great subject as our ancestors approached it — simply as Americans with a deep sense of its seriousness and with 38 THE CONSTITUTION AND ITS MAKERS a clear determination to deal with it only upon full knowledge and after the most mature and calm reflec- tion. The time has come to do this, not only here and now, but everywhere throughout the country. Let us first consider who the men were who made the Constitution and under what conditions they worked. Then let us determine exactly what they meant to do — a most vital point, for much of the discussion to which we have been treated thus far has proceeded upon a complete misapprehension of the purpose and intent of the framers of the Constitution. Finally, let us bring their work and their purposes to the bar of judgment, so that we may decide whether they have failed, whether in their theory of govern- ment they were right or wrong then and now, or whether their work has stood the test of time, is broad based on eternal principles of justice, and, if rent, or mangled, or destroyed, would not in its ruin bring disaster and woes inestimable upon the people who shall wreck their great inheritance, and like " The base Indian, throw a pearl away, Richer than all his tribe. '* First, then, of the men who met in Philadelphia in May, 1787, with doubts and fears oppressing them, but with calm, high courage and with a noble aspira- tion to save their country from the miseries which threatened it, to lead it out from the wilderness of THE CONSTITUTION AND ITS MAKERS 39 distractions in which it was wandering bHnd and help- less, into the Hght, so that the chaos, hateful alike to God and man, might be ended and order put in its place. It is the fashion just now to speak of the framers of the Constitution as worthy, able, and pa- triotic persons whom we are proud to have embalmed in our history, but toward whom no enlightened man would now think of turning seriously for either guid- ance or instruction, so thoroughly has everything been altered and so much has intelligence advanced. It is commonly said that they dealt wisely and well with the problems of their day, but that of course they knew nothing of those which confront us, and that it would be worse than folly to be in any degree governed by the opinions of men who lived under such wholly dif- ferent conditions. It seems to me that this view leaves something to be desired and is not wholly correct or complete. I certainly do not think that all wisdom died with our fathers, but I am quite sure that it was not born yesterday. I fully realize that in sa3dng even this I show myself to be what is called old-fashioned, and I know that a study of history, which has been one of the pursuits of my life, tends to make a man give more weight to the teachings of the past than they are now thought to deserve. Yet, after all allowance is made, I cannot but feel that there is something to be learned from the men who established the govern- ment of the United States, and that their opinions, 40 THE CONSTITUTION AND ITS MAKERS the result of much and deep reflection, are not without value, even to the wisest among us. On questions of this character, I think, their ideas and conclusions are not lightly to be put aside; for, after all, however much we may now gently patronize them as good old patriots long since laid in their honored graves, they were noiiff^the less very remark- able men, who would have been eminent in any period of history and might even, if alive now, attain to dis- tinction. Let us glance over the list of delegates to the Constitutional Convention in Philadelphia in 1787. I find, to begin with, that their average age was 43, which is not an extreme senectitude, and the ages range from Franklin, who was 81, to John Francis Mercer, of Virginia, who was 28. Among the older men who were conspicuous in the convention were Franklin, with his more than 80 years; Washington, who was 55; Roger Sherman, who was 66; and Mason and W3rthe, of Virginia, who were both 61. But when I looked to see who were the most active forces in that convention, I found that the New Jersey plan was brought forward by William Paterson, who was 42; that the Virginia plan was proposed by Edmund Randolph, who was 34; while Charles Pinckney, of South Carolina, whose plan played a large part in the making of the Constitution, was only 29. The great- est single argument, perhaps, which was made in the convention was that of Hamilton, who was 30. The THE CONSTITUTION AND ITS MAKERS 41 man who contributed more, possibly, than any other to the daily labors of the convention and who followed every detail was Madison, who was 36. The Con- necticut compromise was very largely the work of Ellsworth, who was 42; and the committee on style, which made the final draft, was headed by Gouvemeur Morris, who was 35. Let us note, then, at the outset that youth and energy, abounding hope, and the sympathy for the new times stretching forward into the great and uncharted future, as well as high ability, were conspicuous among the men who framed the Con- stitution of the United States. Their presiding officer was Washington, one of the great men of all time, who had led the country through seven years of war, and of whom it has been said by an English historian that "no nobler figure ever stood in the forefront of a nation's fife." Next comes Franklin, the great man of science, the great diplomatist, the great statesman and politician, the great writer; one of the most brilHant intellects of the eighteenth cen- tury, who in his long fife had known cities and men as few others have ever known them. There was Hamilton, one of the greatest constmctive minds that modern statesmanship has to show, to whose writings German statesmen turned when they were forming their empire forty years ago and about whom in these later days books are written in England, because Eng- lishmen find in the principal author of the Federalist 42 THE CONSTITUTION AND ITS MAKERS the great exponent of the doctrines of successful federation. There, too, was Madison, statesman and lawmaker, wise, astute, careful, destined to be, under the government which he was helping to make. Sec- retary of State and President. Roger Sherman was there, sagacious, able, experienced; one of the leaders of the Revolution and a signer of the Declaration of Independence, as he was of the Constitution. Trained and eminent lawyers were present in Philadelphia in that memorable summer of 1787, such men as Ells- worth and Wilson and Mason and Wythe. It was, in a word, a very remarkable body which assembled to frame a constitution for the United States. Its mem- bers were men of the world, men of affairs, soldiers, lawyers, statesmen, diplomatists, versed in history, widely accomplished, deeply familiar with human nature. I think that without an undue or slavish reverence for the past or for the men of a former gen- eration, we may fairly say that in patriotism and in intellect, in knowledge, experience, and calmness of judgment, these framers of the Constitution compare not unfavorably with those prophets and thinkers of to-day who decry the work of 1787, who seek to make it over with all modern improvements, and who with unconscious humor declare that they are engaged in the restoration of popular government. That phrase is in itself suggestive. That which has never existed cannot be restored. If popular govern- THE CONSTITUTION AND ITS MAKERS 43 ment is to be restored in the United States it must have prevailed under the Constitution as it is, and yet those who, just now, are so devoured by anxiety for the rights of the people, propose to effect the restora- tion they demand by changing the very Constitution under which popular government is admitted by their own words to have existed. I will point out presently the origin of this confusion of thought. It is enough to say now that for more than a century no one ques- tioned that the government of the Constitution was in the fullest sense a popular government. In 1863 Lincoln, in one of the greatest speeches ever uttered by man, declared that he was engaged in trying to save government by the people. Nearly thirty years later, when we celebrated the one-hundredth anniver- sary of the Constitution, the universal opinion was still the same. All men then agreed that the government which had passed through the fires of civil war was a popular government. Indeed, this novel idea of the loss of popular government which it is proposed to restore by mangling the Constitution under which it has existed for more than a century is very new; in fact, hardly ten years old. This first conception of our Constitution as an instru- ment of popular government, so long held unques- tioned, was derived from the framers of the Constitu- tion themselves. They knew perfectly well that they were founding a government which was to be popular 44 THE CONSTITUTION AND ITS MAKERS in the broadest sense. The theory now sedulously propagated, that these great men did not know what they were about, or were pretending to do one thing while they really did another, is one of the most fan- tastic delusions with which agitators have ever at- tempted to mislead or perplex the public mind. The makers of the Constitution may have been right or they may have been wrong in the principles upon which they acted or in the work they accomplished, but they knew precisely what they meant to do and why they did it. No man in history ever faced facts with a clearer gaze than George Washington, and when, after the adjournment of the convention, he said, ^^ We have raised a standard to which the good and wise can re- pair; the event is in the hands of God,'' he labored under no misapprehension as to the character of the great instrument where his name led all the rest. It is the fashion to say that since then great changes have occurred and wholly new conditions have arisen of which the men of 1787 could by no possibility have had any knowledge or anticipation. This is quite true. They could not have foreseen the application of steam to transportation, or of electricity to communi- cation, which have wrought greater changes in human environment than anything which has happened to man since those dim, prehistoric, unrecorded days when some one discovered the control of fire, invented the wheel, and devised the signs for language, master- THE CONSTITUTION AND ITS MAKERS 45 pieces of intelligence with which even the marvels of the last century cannot stand comparison. The men of the Constitution could as little have foreseen what the effects of steam and electricity would be as they could have anticipated the social and economic effects of these great inventions or the rapid seizure of the resources of nature through the advances of science and the vast fortunes and combinations of capital which have thus been engendered. Could they, however, with prophetic gaze have beheld in a mirror of the future all these new forces at work, so powerful as to affect the very environment of himian life, even then they would not, I think, have altered materially the Constitution which they were slowly and painfully per- fecting. They would have kept on their way, because they would have seen plainly what is now too often overlooked and misunderstood, that all the perplexing and difficult problems born of these inventions and of the changes, both social and economic, which have followed were subjects to be dealt with by laws as the questions arose, and laws and policies were not their business. They were not making laws to regulate or to affect either social or economic conditions. Their work was not only higher but far different. They / / were laying down certain great principles upon which a government was to be built and by which laws and policies were to be tested as gold is tested by a touch- stone. 46 THE CONSTITUTION AND ITS MAKERS Upon the work in which they were engaged social and economic changes or alterations in international relations and political conditions, no matter how pro- fomid or unforeseen — and none could have been more profound or more unforeseen than those which have actually taken place — had little bearing or effect. They were framing a government, and human nature was the one great and controlling element in their problem. Human nature, with its strength and its weakness, its passions and emotions so often dominating its reason, its selfish desires and its nobler aspirations, was the same then as now. There is no factor so con- stant in human affairs as human nature itself, and in its essential attributes it is the same to-day as it was among the builders of the Pyramids. As to the prin- ciples of government which the framers of the Con- stitution wished to adapt to that portion of human nature which had gained a foothold on the North American continent there was little to be discovered. There is no greater fallacy than to suppose that new and fundamental principles of government are con- stantly to be invented and wrought out. Laws change and must change with the march of humanity across the centuries as it alteration finds in the conditions about it, but fundamental principles and theories of government are all extremely old. The very words in which we must express ourselves when we speak of forms of government are all ancient. Let me recall a THE CONSTITUTION AND ITS MAKERS 47 few facts which every schoolboy knows and which any one can obtain by indulging in that too much neglected exercise of examining a dictionaiy. An- archy, for example, is the Greek word "rule," or "com- mand," with the alpha privative in the form of "an" prefixed, and means the state of a people without government. Monarchy is the rule of one; ohgarchy is the rule of a few. We cannot state what our own government is without using the word "democracy," which is merely the Greek word Arj/xoKparia^ and means popular government, or the rule of the people. Aristocracy, ideally as Aristotle had it, is the rule of the best, but even in those days it meant in practice the rule of the best-born or nobles. Plutocracy is the rule of the rich; autocracy, self-derived power — the unlimited authority of a single person. Ochlocracy is the rule of the multitude, for which we have tried to substitute the hideous compound "mobocracy." As with the words, so with the things of which the words are the symbol; the people who invented the one had already devised the other. The words all carry us back to Greece, and all these various forms of govern- ment were well known to the Greeks and had been analyzed and discussed by them with a brilliancy, a keenness, and an intellectual power which have never been surpassed. If you will read The Republic and The Laws of Plato, and supplement that study by an equally careful examination of what Aristotle has to 48 THE CONSTITUTION AND ITS MAKERS say on government, you will find that those great minds have not only influenced human thought from that time to this, but that there is Httle which they left unsaid. It is the fashion, for example, to speak of socialism as if it were something new, a radiant dis- covery of our own time which is to wipe away all tears. The truth is that it is very old, as old in essence as human nature, for it appeals to the strong desire in every man to get something for nothing, and to have someone else bear his burdens and do his work for him. As a system it is amply discussed by Plato, who, in The Republic, urges measures which go to great ex- tremes in this direction. In the fourth century of our era a faction called the Circumcellions were active as socialists and caused great trouble within the weakening Empire of Rome. The real difficulty his- torically with the theories of socialism is not that they are new, but that they are very, veiy old, and wher- ever they have been put in practical operation on a large scale they have resulted in disorder, retrogres- sion, and in the arrest of civilization and progress. Broadly stated, there have been only two marked ad- ditions to theories or principles of government since the days of the Greeks and the Romans. One is the representative principle developed by the people of England in the '^ Mother of Parliaments," and now spread all over the world, and the other is the system of federation on a large scale, embracing under a THE CONSTITUTION AND ITS MAKERS 49 central government of defined powers a union of sovereign and self-governing States, which the world owes in its bold and broad application to the men who met at Philadelphia to frame our Constitution in 1787. With these exceptions the framers of the Constitu- tion dealt with the theories and systems of government which have been considered, discussed, and experi- mented with for more than two thousand years, and which are to-day, a century later, the same as in 1787, unchanged and with no additions to their number. In order to reach the essence of what the makers of the Constitution tried and meant to do, which it is most important to know and reflect upon deeply before we seek to undo their work, let us begin by dismissing from our consideration all that is unessential or mis- leading. Let us lay aside first the word republic, for a republic denotes a form and not a principle. A re- public may be democratic like ours, or an autocracy like that of Augustus C2esar, or an oligarchy like Venice, or a changing tyranny like some of those visible in South America. The word has become as inaccurate, scientifically speaking, as the word mon- archy, which may be in reality a democracy as in Eng- land or Norway, constitutional as in Italy, or a pure despotism as, until very lately, in Russia. Let us adhere in this discussion to the scientifically exact word '^de- mocracy." Next let us dismiss all that concerns the re- 50 THE CONSTITUTION AND ITS MAKERS lations of the States to the national government. Fed- eration, as I have said, was the signal contribution of the Philadelphia convention to the science of government. The framers of the Constitution, if they did not in- vent the principle, applied it on such a scale and in such a way that it was practically a discovery, a ven- ture both bold and new, as masterly as it was pro- foundly planned. With the love of precedents char- acteristic of their race they labored to find authority and example in such remote and alien arrangements as the Achean League and the Amphictyonic Council, but the failure of these precedents as such was the best evidence of the novelty and magnitude of their own design. Their work in this respect has passed through the ordeal of a great war; it has been and is to-day the subject of admiration and study on the part of foreign nations, and not even the most ardent reformer of this year of grace would think, in his efforts to restore popular government, of assailing the Union of sover- eign States. Therefore we may pass by this great theme which was the heaviest part of the task of our ancestors. In the same way we may dismiss, much as it troubled the men of 1787, all that relates to the machinery of government, such as the electoral college, the tenure of office, the methods of electing senators and repre- sentatives, and the like. These matters are important; many active thinkers in public life seek to change THE CONSTITUTION AND ITS MAKERS 51 them, not for the better, as I beheve, but none the less these provisions concern only the mechanism of gov- ernment; they do not go to the root of the matter, they do not affect the fundamental principles upon which the government rests. By making these omissions we come now to the vital point, which is, What kind of a government did the makers of the Constitution intend to establish and how did they mean to have it work ? They were, it must be remembered, preparing a scheme of government for a people peculiarly fitted to make any system of free institutions work well. The people of the United Colonies were homogeneous. They came in the main from Great Britain and Ireland, with the addition of the Dutch in New York, of some Germans from the Palatinate, and of a few French Huguenots whose ability and character were as high as their numbers were relatively small. But an overwhelming ma- jority of the American people in 1787 were of English and Scotch descent and they, as well as the others from other lands, were deeply imbued with all those principles of law which were the bulwarks of English liberty. In this new land men had governed themselves and there was at that moment no people on earth so fit for or so experienced in self-government as the people of the Thirteen Colonies. Their colonial governments were representative and in essence democratic. They became entirely so when the Revolution ended and 52 THE CONSTITUTION AND ITS MAKERS the last English governor was withdrawn. In the four New England Colonies local government was in the hands of the town meetings, the purest democracies then or now extant, but it is best to remember, what the men of 1787 well knew, that these little democracies moved within fixed bounds determined by the laws of the States under which they had their being. For such a people, of such a character, with such a past and such habits and traditions, only one kind of government was possible, and that was a democracy. The makers of the Constitution called their new gov- ernment a republic and they were quite correct in doing so, for it was of necessity republican in form. But they knew that what they were establishing was a democracy. One has but to read the debates to see how constantly present that fact was to their minds. Democracy was then a very new thing in the modern world. As a system it had not been heard of, except in the fevered struggles of the Italian city republics, since the days of Rome and Greece, and although the convention knew perfectly well that they were estab- lishing a democracy and that it was inevitable that they should do so, some of them regarded it with fear and all with a deep sense of responsibility and caution. The logical sequence as exhibited in history and as accepted by the best minds of the eighteenth century, struggling to give to men a larger freedom, was de- mocracy — anarchy — despotism. The makers of the THE CONSTITUTION AND ITS MAKERS 53 Constitution were determined that so far as in them lay the American RepubHc should never take the second step, never revolve through the vicious circle which had culminated in empire in Rome, in the tyrants of the Grecian and the despots of the Italian cities which in their turn had succumbed to the absolutism of foreign rulers. The vital question was how should this be done ; how should they establish a democracy with a strong gov- ernment — for after their experience of the Confedera- tion they regarded a weak government with horror — and at the same time so arrange the government that it should be safe as well as strong and free from the peril of lapsing into an autocracy on the one hand, or into disorder and anarchy on the other? They did not try to set any barrier in the way of the popular will, but they sought to put effective obstacles in the path to sudden action which was impelled by popular passion, or popular whim, or by the excitement of the moment. They were the children of the "Great Re- bellion" and the '^Blessed Revolution'^ in the England of the seventeenth century, and they were steeped in the doctrine of limiting the power of the king. But here they were dealing with a sovereign who could not be limited, for while a king can be restrained by trans- ferring his power to the people, when the people are sovereign their powers cannot be transferred to any- body. There is no one to transfer them to, and if 54 THE CONSTITUTION AND ITS MAKERS they are taken away the democracy ceases to exist and another government, fundamentally different, takes its place. The makers of the Constitution not only knew that the will of the people must be supreme, but they meant to make it so. That which they also aimed to do was to make sure that it was the real will of the people which ruled and not their momentary impulse, their well-considered desire and determination and not the passion of the hour, the child, perhaps, of excitement and mistake inflamed by selfish appeals and terrorized by false alarms. The main object, therefore, was to make it certain that there should be abundant time for discussion and consideration, that the public mind should be thoroughly and well informed, and that the movements of the machinery of government should not be so rapid as to cut off due deliberation. With this end in view they established with the utmost care a representative system with two chambers and an executive of large powers, including the right to veto bills. They also made the amendment of the Constitution a process at once slow and difficult, for they intended that it should be both, and indeed that it should be impracticable without a strong, deter- mined, and lasting public sentiment in favor of change. Finally, they established the Federal judiciary, and in the Supreme Court of the United States they made an addition to the science of government second only S<, Hr\^< '^"^^^^^ CJ>*^ THE CONSTITUTION AND ITS MAKERS 55 in importance to their unequalled work in the develop- ment of the principle of federation. That great tri- bunal has become in the eyes of the world the most remarkable among the many remarkable solutions devised by the convention of 1787 for the settlement of the gravest governmental problems. John Marshall, with the intellect of the jurist and the genius of the statesman, saw the possibilities contained in the words which called the court into being. By his intei-pre- tation and that of his associates and their successors the Constitution attained to flexibility and escaped the rigidity which then and now is held up as the danger and the defect of a written instrument. In their hands the Constitution has been expanded to meet new conditions and new problems as they have arisen. In their hands also the Constitution has been the protection of the rights of States and of the rights of men, and laws which, in the opinion of the court, violated its principles and its provisions have been declared by judicial decision in specific cases to be unconstitutional. By making the three branches of the government, i the executive, the legislative, and the judicial, entirely ^J separate and yet co-ordinate, and by establishing a representative system and creating a Supreme Court of extraordinary powers, the framers of the Constitu- tion believed that they had made democracy not only all-powerful but at the same time safe, and that they 56 THE CONSTITUTION AND ITS MAKERS had secured it from gradual conversion into autocracy on the one hand and from destruction by too rapid motion and too quick response to the passions of the moment on the other. If ever men were justified by results they have been. The Constitution in its de- velopment and throughout our history has surpassed the hopes of its friends and utterly disappointed the predictions and the criticisms of its foes. Under it the United States has grown into the mighty Republic we see to-day. New States have come into the Union, vast territories have been acquired, population and wealth have increased to a degree which has amazed the world, and life, liberty, and property have been guarded beneath the flag which is at once the symbol of the country and of the Constitution under which the nation has risen to its high success. Such results would seem to be a potent argument in favor of the instrument of government through which they have been achieved. But to argue from results seems just now out of fashion. Actual accomplishment, it would appear, is nothing. According to the new dispensation our decision must be made on what is promised for the future, not on what has been done in the past. Under this novel doctrine, as I have observed it, we are to be guided chiefly by envy and discontent and are to act on the general principle that whatever is is wrong. What, then, is the plan by which popular govern- ment, which existed under the Constitution for more THE CONSTITUTION AND ITS MAKERS 57 than a century and which has been mysteriously lost during the past few years, is to be restored to us? It is proposed, to put it in a few words, to remove all the barriers which the makers of the instrument established in order to prevent rash, hasty, and pas- sionate action and to secure deliberation, considera- tion, and due protection for the rights of minorities and of individuals. This is to be accompHshed in two ways: by emasculating the representative system through the compulsory initiative and referendum and by breaking down the courts through the recall. These are the changes by which it is intended to revive popular government. Incidentally they strike at the very heart of the Constitution as the framers planned and made it, for they will convert the deliberate move- ment of the governmental machinery, by which its makers intended to secure to democracy both perma- nence and success, into an engine w^hich starts at the touch of an electric button, which is as quick in re- sponse as a hair-trigger pistol and as rapid in operation as a self-cocking revolver. These new and precious ideas are of a ripe age; in fact they have passed many hundreds of years beyond the century fixed by Doctor Johnson for the establishment of a literary reputation at a point where it might be intelligently discussed. Let us therefore consider and criticise them. The compulsory initiative and the compulsory referendum need not detain us long, for the effect of 58 THE CONSTITUTION AND ITS MAKERS those devices is obvious enough. The entire virtue or the entire vice — each of us may use the word he pre- fers — of these schemes rests in the word "compul- sory/' The initiative without compulsion is complete in the right of petition secured by the first of the first ten amendments to the Constitution, which really constituted a bill of rights. The right of petition be- came the subject of bitter controversy at a later time and was vindicated once for all by John Quincy Adams's great battle in its behalf, more than three-quarters of a century ago. There are few instances where petitions representing a genuine popular demand have not met a response in action, whether in Congress or in the State legislatures; still fewer where respectful attention and consideration have not been accorded to them. But the responsibility for action and the form such action should take has rested with the representative body. When the initiative is made compulsory a radical change is effected. A minority, sometimes a small minority, of the voters, always a small minority of the people, can compel the legislature to pass a law and submit it to the voters even when a very large majority of the people neither ask for nor, so far as the evidence goes, desire it. In this way all respon- sibility is taken from the representative body and they become mere clerks for drafting and recording laws, poor puppets who move mechanically when some ir- responsible outsiders twitch the strings. It is the sub- THE CONSTITUTION AND ITS MAKERS 59 stitution of government by factions and fractions for government by the people. The representative body as hitherto constituted represented the whole people. Under the new plan it is to be merely the helpless in- strument of a minority, perhaps a very small minority, of the voters. The voluntary referendum has always existed in this country. In the national government, owing to our dual or federal form, the referendum on constitutional amendments is necessarily made to the States, and it has never been suggested for the laws of the United States, owing to both physical and constitutional difficulties. In the States the referendum has always been freely used, not only for constitutions and con- stitutional amendments but for laws, especially for city charters, local franchises, and the like. But if the referendum is made compulsory, on the demand of a minority of the voters, all responsibility vanishes from the representative body. The representative no longer seeks to represent the whole people or even his own constituency, but simply votes to refer every- thing to the voters, and covers himself completely by pointing to the compulsory referendum. On the other hand, the voters are called upon to legislate. Of the mass of measures submitted they know and can know nothing. Experience shows that in all referen- dums a large proportion of the voters decline to vote. Whether this is due to indifference or to lack of in- 60 THE CONSTITUTION AND ITS MAKERS formation the result is the same. It proves that this system demands from the voters what the most in- telhgent voters in the world are unable to give. They are required to pass upon laws, many of which they have neither time nor opportunity to understand, with- out deliberation and without any discussion except what they can gather from the campaign orator, who is, as a rule, interested in other matters, or from an occasional article in a newspaper. They cannot alter or amend. They must vote categorically "yes'' or "no." The majority either fails to vote, and the small and interested minority carries its measure, or the majority, in disgust, votes down all measures sub- mitted, good and bad alike, because they do not un- derstand them and will not vote without knowing what their votes mean. '-^he great laws which, both in England and the United States, have been the landmarks of freedom and made ordered liberty possible were not passed and never could have been perfected and passed in such a way as this. This new plan is spoken of by its advocates as progressive. As a matter of fact, it is the reverse of progressive, it is reactionary. Direct legislation by popular vote was familiar, painfully familiar, to Greece and Rome. In both it led through corruption, violence, and disorder to autocracy and despotism. The direct-vote system also proved itself utterly incapable of the government of an extended THE CONSTITUTION AND ITS MAKERS 61 empire and of large populations. Where government by direct vote miserably failed, representative gov- ernment, after all deductions have been made, has brilliantly succeeded. The development of the prin- ciple and practice of representative government was, as I have already pointed out, the one great contribu- tion of modern times to the science of government. It has shown itself capable of preserving popular gov- ernment and popular rights without the violence and corruption which resulted of old in anarchy and despot- ism, and at the same time it has proved its adaptability to the management of large populations and the effi- cient government of great empires. Representative government was an enormous advance over govern- ment by the direct vote of the forum, the agora, or the market-place, which had preceded it, and which had gone down in disaster. It is now proposed to abandon that great advance and to return to the ancient system with its dark record of disorder and failure. This is not progress. It is retreat and retro- gression. It is the abandonment of a great advance and a return to that which is not only old and outworn, but which history and experience have alike dis- credited. Look now for a moment at representative govern- ment as we ourselves have known it. Let us not for- get, in the first place, that the Congress of the United States under the Constitution has been in continuous 62 THE CONSTITUTION AND ITS MAKERS existence for more than one hundred and twenty years; that with the single exception of the " Mother of Par- liaments" it is much the oldest representative body of a constitutional character now existing in the world. Let us also remember that the history of the Amer- ican Congress is in large part the history of the United States, and that we are apt to be proud of that history as a whole and of the many great things we as a people have accomplished. Yet whatever praise history ac- cords to the Congress of the United States in the past the Congress of the moment and the members of that body in either branch receive but little commendation from their contemporaries. This is perhaps not un- natural, and it certainly has always been customary. Legislative bodies have rarely touched the popular imagination or appeared in a dramatic or picturesque attitude. The Conscript Fathers, facing in silence the oncoming barbarians of Gaul; Charles the First, attempting to arrest the five members; the Conti- nental Congress adopting the Declaration of Inde- pendence; the famous Oath of the Tennis Court, are almost the only instances which readily occur to one^s mind of representative and legislative bodies upon whom for a brief instant has rested the halo of heroism and from which comes a strong appeal to the imagina- tion. The men who fight by land and sea rouse im- mediate popular enthusiasm, but a body of men en- gaged in legislation does not and cannot offer the THE CONSTITUTION AND ITS MAKERS 63 fascination or the attraction which are inseparable from the individual man who stands forth alone from the crowd in any great work of life, whether of war or peace. We may accept without complaint this tendency of human nature, but I think every dispassionate student of history, as well as every man who has had a share in the work of legislation, may rightfully deprecate the indiscriminate censure and the consistent belittling which pursue legislative bodies. This attitude of mind is not confined to the United States. The press of Eng- land treats its Parliament severely enough, although, on the whole, with more respect than is the case with the American press in regard to the American Con- gress. But running through EngUsh novels and es- says we find, as a rule, the same sneer at the represent- atives of the people as we do here. Very generally, both in this country and abroad, those who write for the public seem to start with the proposition that to be a member of Congress, or a member of Parliament, or a member of the Chamber of Deputies in France, implies some necessary inferiority of mmd or char- acter. I do not desire to be rash or violent, but I think this theory deserves a moment's examination and is, perhaps, open to some doubt. As Mr. Reed, when Speaker of the House, once said, it is a fair inference that a man who can impress himself upon two hundred thousand people, or upon the whole 64 THE CONSTITUTION AND ITS MAKERS population of a great State, sufficiently to induce them to send him to the House or Senate has something more than ordinary qualities and some- thing more than ordinary force. Then, again, as Ed- mund Burke remarked, you cannot draw an indict- ment against a whole people, nor, I may add, can you draw an indictment against an entire class. There are good men and bad men in business and in the pro- fessions, in the ministry, in medicine, in law, and among scholars. Virtue is not determined by occupa- tion. There are, I repeat, good and bad men in every profession and calling, among high and low, rich and poor, and the honest men who mean to do right largely preponderate, for if they did not the whole social structure would come crashing to the ground. What is true of business and the professions is true of Con- gress. There are good and bad men in public life, and the proportion of good to bad, I believe, compares favorably with that of any other occupation. Public men live in the fierce light which beats upon them as upon the throne, a light never fiercer or more pitiless than now, and for this reason their shortcomings are made more glaring and their virtues by contrast more shadowed than in private life. This is as it should be, for the man who does wrong in private life is far less harmful than the public servant who is false to his trust. To inflict upon the public servant who is a wrong-doer the severest reprobation is necessaiy for THE CONSTITUTION AND ITS MAKERS 65 the protection of the community, but for this very- reason we should be extremely careful that no reproba- tion should be visited unjustly upon any public man. It is an evil thing to betray the public trust, but it is an equally evil thing to pour wholesale condemnation upon the head of eveiy man in public life, good and bad alike. That which suffers most from an injustice like this in the long run is not the pubHc servant who has been unfairly dealt with, for the individual passes quickly, but the country itself. After all, the voters make the representative. If he is not of the highest type, he appears to be that which the majority prefers. Wholesale criticism and abuse of the representatives reflect more on the constituencies, if we stop to con- sider, than on those whom the constituencies select to represent them. Indiscriminate condemnation and equally indiscriminate belittling of the men who make and execute our laws, whether in State or nation, is not only a reflection upon the American people but is a blow to the United States and every State in it. They help the guilty to escape and injure the honest and the innocent. They destroy the people^s confi- dence in their own government and lower the country in the eyes of foreign nations. The Congress of the United States embodies the rep- resentative principle. The principle of representa- tion, I repeat, has been the great contribution of the English-speaking race to the science and practice of 66 THE CONSTITUTION AND ITS MAKERS government. The Greeks and the RomanS; let me say once more, had pure democracy and legislation by direct vote in theory, at least, and we have but to read Plato's Republic and The Laws to learn the defects of the system in use in Athens. Greece failed to es- tablish an empire; she touched the highest peaks of civilization, and finally went to pieces politically be- neath the onset of Rome. Rome established a great empire, but, after years of bloody struggles between aristocracy and democracy, it ended in a simple des- potism. The free cities of Italy oscillated between anarchy and tyranny, only to fall victims in the end to foreign masters. In Florence they had elections every three months and a complication of committees and councils to interpret the popular will. Yet the result was the Medicis and the Hapsburgs. It is also to be remembered that the representative principle has been coincident with political liberty. Whatever its shortcomings or defects, and, like all things human, it has its grave defects, it none the less remains true that the first care of every "strong man,'' every "saviour of society," eveiy "man on horseback," of every autocrat, is either to paralyze or to destroy the representative principle. It may be that the rep- resentative principle is not the cause of political liberty, but there can be no question whatever that the two have always gone hand in hand, and that the destruc- tion of one has been the signal for the downfall of the THE CONSTITUTION AND ITS MAKERS 67 other. The Congress of the United States and the legislatures of the several States embody the repre- sentative principle. By that principle your laws have been made and the republican form of government sustained for more than a century. Whatever its shortcomings, it has maintained the government of the United States and upheld law and order through- out our borders. The framers of our government separated the exec- utive from the legislative branch. They deemed both essential to freedom. The constitution of my State of Massachusetts declares that the government it estab- lishes is to be a government of laws and not of men; a noble principle and one worthy of fresh remembrance. With such a history, and typifying as it does the great doctrines which were embodied in the Declaration of Independence, the Constitution of the United States, and the institutions of England, it may fairly be asked that if the representative principle must be criticised, as it should be, with severity when it errs, it should also be treated with that absolute justice which is not only right in the abstract but which is essential to the maintenance of law, order, and free government, to human progress and to the protection of the weak, even as the fathers designed that it should be. Wlien we blame its failures let us not forget its services. They have broadened freedom down from precedent to precedent. They shine across those pages of history 68 THE CONSTITUTION AND ITS MAKERS which tell the great story of the advance of liberty and of the ever-widening humanity which seeks to make the world better and happier for those who most need happiness and well-being. In beneficent results for the people at large no other form of government ever attempted can compare with it for a moment. The worst feature of the compulsory initiative and referendum lies therefore in the destruction of the principle of representation. Power without responsi- bility is a menace to freedom and good government. ResponsibiHty without power is inconceivable, for no man in his senses would bear such a burden. But when responsibility and power are both taken away, whether from the executive or the representatives, the result is simple inanition. No man fit by ability and character to be a representative would accept the office under such humiliating conditions. Those who accepted it would do so for the pecuniary reward which the office carried and would sink rapidly into mere machines of record, neither knowing nor caring what they did. With a representative body thus reduced to nothingness we are left with the people, armed only with their votes, and with an executive who has neces- sarily absorbed all the real powers of the State. This situation is an old story and has always ended in the same way. It presents one of those rare cases in which the teaching of history is uniform. When the repre- sentative principle has departed and only its ghost THE CONSTITUTION AND ITS MAKERS 69 remains to haunt the capitol, Hberty has not hngered long beside its grave. The rise of the representative principle and its spread to new lands to-day marks the rise of popular government everywhere. Wherever it has been betrayed or cast down the government has reverted to despotism. When representative govern- ment has perished freedom has not long survived. Most serious, most fatal indeed are the dangers threatened by the insidious and revolutionary changes which it is proposed to make in our representative system, upon which the makers of the Constitution relied as one of the great buttresses of the political fabric which was to insure to popular government success and stability. Yet even these changes are less ruinous to the body politic, to liberty and order, than that which proposes to subject judges to the recall. No graver question than this has ever confronted the American people. The men who framed the Constitution were much nearer to the time when there was no such thing as an independent judiciary than we are now. The bad old days, when judges did the bidding of the king, were much more vivid to them than to us. What is a com- monplace to us was to them a comparatively recent and a hardly won triumph. The fathers of some of those men — the grandfathers of all — could recall Jeffreys and the "Bloody Assize." They knew well that there could be no real freedom, no security for 70 THE CONSTITUTION AND ITS MAKERS personal liberty, no justice, without independent judges. It was for this reason that they established the judiciary of the United States with a tenure which was to last during good behavior and made them ir- removable except by impeachment. The Supreme Court then created and the judiciary which followed have, as I have already said, excited the admiration of the civilized world. The makers of the Constitu- tion believed that there should be no power capable of deflecting a judge from the declaration of his honest belief, no threat of personal loss, no promise of future emolument, which could be held over him in order to sway his opinion. This conviction was ingrained and born with them, as natural to them as the air tliey breathed, as vital as their personal honor. How could it have been otherwise? The independence of the judiciary is one of the great landmarks in the long struggle which resulted in the political and personal freedom of the English-speaking people. The battle was fought out on English soil. If you will turn to the closing scenes of Henry IV, you will find there one of the noblest conceptions of the judicial office in the olden time ever expressed in literature. It was written in the days of the last Tudor or of the first Stuart, in the time of the Star Chamber, of judges who decided at the pleasure of the king, and when Francis Bacon, Lord Chancellor of England, took bribes or gifts. Yet lofty as is the conception, you will see that Shake- THE CONSTITUTION AND ITS MAKERS 71 speare regarded the judges as embodying the person, the wdll, and the authority of the king. We all know how the first two Stuarts used the courts to punish their enemies and to prevent the as- sertion of political rights, which are now such common- places that the fact that they were ever questioned is forgotten. The tyranny of the courts was one of the chief causes which led to the great rebellion, and out of that great rebellion, when the third Stuart had been restored, came the habeas corpus act, which has done more to protect personal liberty than any act ever passed. But the second Charles and the second James had learned nothing as to the judges. They expected them to do their bidding when the king had any interest at stake, and under the last Stuart the courts reached a very low point and the legal history of the time is characterized by the evil name of Jef- freys. When the lawyers went to pay their homage to William of Orange, they were headed by Sergeant Maynard, then ninety years of age. "Mr. Sergeant,^' said the prince, "you must have survived all the lawyers of your standing.'' "Yes, sir," said the old man, "and, but for Your Highness, I should have sur- vived the laws too." The condition of the courts was indeed one of the strongest of the many bitter griev- ances which wrought the Revolution that placed William of Orange on the English throne. In the famous bill of rights there is no provision in regard to 72 THE CONSTITUTION AND ITS MAKERS the courts and it is not quite clear why it was omitted, although, apparently, it was due to an oversight. In any event it was not forgotten. It was brought for- ward more than once in Parliament, but William an- nounced that he would not assent to any act making the judges independent of the crown. As his reign drew toward its close, however, he signified that al- though he would veto a separate act he would accept the independence of the judiciary if provided for in the act of settlement which was to determine the suc- cession to the throne of England. Therefore we find in the act of settlement the clause which declares that the judges shall hold office during good behavior — "quamdiu se bene gesserint" — and shall be remov- able only on the request of both houses of Parhament. It is necessary to pause a moment here and consider briefly the provision of the act of settlement for the removal of judges on an address by the houses, because it has been most incorrectly used by persons ignorant probably of its history as a precedent justifying the recall. The clause was inserted not for the purpose of controlling the judges, but to protect them still further against the power of the crown by which they had hitherto been dominated. The history of the clause since its enactment demonstrates what its pur- pose was as well as the fulfilment of that purpose in practice. During the two centuries which have elapsed since William III gave his assent to the act, there has THE CONSTITUTION AND ITS MAKERS 73 been, so far as I can learn, only one removal on ad- dress, that of Sir Jonah Barrington, an Irish judge, in 1806, more than a hundred years ago. There have been several cases where removal was petitioned for, but Harrington's was, I think, the only one in which the demand was successful. The procedure employed shows that there is no resemblance whatever between the removal of a judge upon the address of the law- making body and the popular recall. They are utterly different, are instituted for different purposes, and the former furnishes in reality a strong argument against the latter. In all the cases of removal or attempted removal by address of Parliament the accused judge was carefully tried before a special committee of each house; he could be heard at the bar of either house, he could and did employ counsel, and could summon and cross-examine witnesses. This process is as far removed from the recall as the zenith from the nadir, for under the recall by the voters the accused judge has no opportunity to summon or cross-examine witnesses, to appear by counsel, or to be properly heard and tried. He is obHged under the system of the pop- ular recall to make an appeal by the usual political methods and at the same time to withstand another candidate, while he is forced to seek a hearing from audiences ignorant of the law and inflamed perhaps against him by passion and prejudice. He has no chance whatever of a fair trial. 74 THE CONSTITUTION AND ITS MAKERS Some of our States borrowed this provision of the act of settlement when they formed their constitu- tions. My own State of Massachusetts was one of them. The power has been but rarely exercised by the legislature in the hundred and thirty years which have passed since our constitution was adopted, but it so happened that when I was in the legislature a case occurred, and I was a member of the committee on the judiciary to whom the petitions were referred. The accused judge was tried as elaborately and fairly as he could have been by any court or by the Senate if he had been impeached. He had counsel, he sum- moned and cross-examined witnesses, and the trial, for it was nothing less, occupied weeks. The House adopted the address but it was defeated in the Senate. A year later, after a similar trial, the address passed both houses and the judge was removed by the governor for misdemeanors and malfeasance in office. A mere statement of the procedure shows at once that the removal by address is simply a summary form of im- peachment with no relation or likeness to the recall. Removal by address is no more like the recall than im- peachment is. If successful, they all result in the re- tirement of the judge accused, but there the resemblance ends. The makers of the Constitution did not follow the act of settlement and adopt the removal on ad- dress. They no doubt perceived its advantages, because it made possible the removal of a judge in- THE CONSTITUTION AND ITS MAKERS 75 capacitated by insanity, or age, or disease without in- flicting upon him the stigma of an impeachment, but they also saw that the removal by address might be used for political and personal reasons, of which one instance occurred in my own State, and they probably determined that the risk of its abuse outweighed any possible benefit which might flow from its judicious exercise. They placed their courts as far as they could on the great heights of justice, above the gusts of popular passion. They guarded them in every possible way. They knew that judges were human and therefore fallible. They knew that the courts would move more slowly than popular opinion or than Congress, but they felt equally sure that they would in the end follow that public opinion which was at once settled and well considered. All this they did because all history and especially the history and tradition of their own race taught them that the strongest bulwark of individual freedom and of human rights was to be found ulti- mately in an independent court, the corner-stone of all liberty. Their ancestors had saved the judges from the crown. They would not retrace their steps and make them subject to the anger or the whim of any one else. " They wished men to be free, As much from mobs as kings, from you as me." 76 THE CONSTITUTION AND ITS MAKERS The problem which they then solved has in no wise changed. The independence of the judiciary is as vital to free institutions now as then. The system which our forefathers adopted has worked admirably and has commanded the applause of their children and of foreign nations, who Bacon tells us are a present posterity. Now it is proposed to tear this all down and to replace the decisions of the court with the judgment of the market-place. If I may borrow a phrase from the brilliant speech made recently by Mr. Littleton in the House, it is intended to substitute "government by tumult for government by law." Those who advocate this revolution in our system of government seem to think that a judge should be made responsive to the popular will, to the fleeting majority of one day which may be a minority the next. They would make their judges servile, and servile judges are a menace to freedom, no matter to whom their servitude is due. They talk of a judge's duty to his constituents. A judge on the bench has no con- stituents and represents no one. He is there to ad- minister justice. He is there not to make laws, but to decide what the law is. He must know neither friend nor foe. He is there to declare the law and to do justice between man and man. The advocates of the recall seem to believe that with subser\dent judges glancing timidly to right and left to learn what voters think, instead of looking stead- THE CONSTITUTION AND ITS MAKERS 77 fastly at the tables of the law, the poor will profit and the rich will suffer; that the individual will win and the corporation lose; that the powerful will be crushed and the weak will triumph, while the sword of the re- call hangs over the head of the judicial Damocles. If even this were true, nothing could be more fatal. A judge must know neither rich nor poor, neither strong nor weak. He must know only law and justice. He must never listen to Bassanio's appeal, ^' To do a great right, do a little wrong.'' But the theory is in reality most lamentably false. No man fit to be a judge would, with few exceptions, take office under the recall. In the end the bench would be filled by the weak and the unscrupulous. The weak would make decisions to curry favor and hold votes. The unscrupulous would use their brief opportunity to assure their own for- tunes, and that assurance could come only from the rich and the powerful, who would thus control the de- cisions.^ For the American court we should substitute the oriental cadi, with the bribe-giver whispering in his ear. If a criminal happened to belong to some large and powerful organization in whose interest the crime was committed he would have little to fear from a court where a judge subject to the recall presided. We should have courts like those ruled by the Camorra in the days of the Neapolitan Bourbons except that the subservience of the judge would be insured by fear of the recall instead of by dread of assassination. The 78 THE CONSTITUTION AND ITS MAKERS result would be the same and certain criminals would become a privileged class and commit their crimes with impunity. In one of the noblest passages of his letter to the sheriffs of Bristol Edmund Burke says: The poorest being that crawls on earth contending to save itself from injustice and oppression is an object respectable in the eyes of God and man. Without the independent judge those words could never have been written, for before the independent judge alone could the poorest hope to contend against injustice. Judges, of course, are human and therefore err. I know well that there have been one or two great cases where the decision of the highest court traveUing beyond its province has been reversed and swept away by the overwhelming force of public opinion and the irresistible current of events. I know only too well that we suffer from the abuse of technicalities, from delays which are often a denial of justice, and that the methods of our criminal law are in many States a disgrace to civilization. But all these delays and abuses and miscarriages of justice are within the reach of Congress and legislatures, and these evils can be remedied by statute whenever public opinion demands a reform. Their continued existence is our own fault. Yet when all is said the errors of the highest courts are few and the abuses and shortcomings to which I have THE CONSTITUTION AND ITS MAKERS 79 referred can be cured by our own action. In the great mass of business, in the hundreds of trials which go on day by day and year by year, justice is done and the rights of all protected. We may declare with truth that in the courts, as we have known them, the. poor, the weak, the helpless have found protection and sometimes their only defence. A mob might thunder at the gates, money might exert its utmost power, but there in the courtroom the judge could see only the law and justice. The safeguard of the rights and liberties of minorities and individuals, of the weak, and above all of the unpopular, as a rule, has been found only in the court. And now it is proposed to undo all this and to make the judges immediately de- pendent on the will of those upon whom they must pass judgment. If the framers of the Constitution were alive to-day, they would not find a single new condition to affect their faith in an independent judici- ary. They would decide now as they decided then. Are we ready to reverse their judgment and open the door to the flood of evils which will rush into the State as they always have rushed in when in times past the courts were controlled by an outside power? The destruction of an independent judiciary carries with it everything else, but it only illustrates sharply the general theory pursued by the makers of the Con- stitution. They established a democracy, and they believed that a democracy would be successful; but 80 THE CONSTITUTION AND ITS MAKERS they also believed that it could succeed solely through forms and methods which would not make it impos- sible for the people to carry on their own government.' For this reason it was that they provided against hasty action, guarded against passion and excite- ment, gave ample room for the cooler second thought, and arranged that the popular will should be expressed through representative and deliberative assemblies and the laws admini^.tered and interpreted through inde- pendent courts. Those who would destroy their work talk continually about trusting the people and obeying the people's will. But this is not what they seek. The statement, as they make it, is utterly misleading. That for which they really strive is to make the courts and the Congress suddenly and rapidly responsive to the will of a majority of the voters. It matters not that it may be a narrow, an ephemeral, or a fluctuat- ing majority. To that temporary majority, which the next year may be changed to a minority, the Con- gress and the courts must at once respond. Legisla- tion of the most radical, the most revolutionary char- acter may thus be forced upon the country, not only without popular assent but against the will of the great mass of the people. The framers of the Constitution made it in the name and for the benefit of the people of the United States; for the entire people, not for any fraction or class of the people. They did not make the Constitution for THE CONSTITUTION AND ITS MAKERS 81 the voters of the United States. They recognized that the popular will could only be expressed by those who voted and that the expression of the majority must in the end be final. But they restrained and made de- liberate the action of the voters by the limitations placed upon the legislative, the executive, and the judicial branches, so that the rights of all the people might be guarded and protected against ill-considered action on the part of those who vote. Those who now seek to alter the fundamental principles of the Constitution start with a confusion of terms and a false proposition. They talk glibly of ^Hhe people.'' But they mean the voters, and the voters are not the people, but a small portion of the people, not more than a fifth or a sixth part, who are endowed by law with the power to express what is to be regarded as the popular will. The legal voters are the representatives and trustees of all the inhabitants of the country, of all those under twenty-one to whom the future belongs, of nearly all the women, of all resident aliens, and of all persons not qualified to vote. They are the instru- ment, the only practicable instrument, for reaching an expression of the popular will; but they are not the people as a whole, for whom and for whose protection the Constitution was made. It was for the protection of the people that the m.akers of the Constitution made provisions to assure deliberate movement and to pre-^ vent hasty, passionate, or ill-considered action. The 82 THE CONSTITUTION AND ITS MAKERS puipose of those who would destroy the present Con- stitution is to remove these safeguards and for the "people'^ of the Constitution substitute, without check, hindrance, or delay, the will of the voters of the moment. They are blind to the awful peril of turning human nature loose to riot among first principles. I But they do not stop even there. Under the system /they propose a small minority of the voters, who are l'*^ themselves a minority of the people, are to have un- limited power to compel the passage of laws. A small minority will be able and, as the experience of the voluntary referendum shows, will in almost eveiy instance contrive to place laws upon the statute-book which the mass of the people really do not desire. A small minority can force the recall of a judge and drive him from the bench. The new system places the actual power in the hands of minorities, generally small, always interested and determined. Instead of government '^by the people and for the people'^ we shall have government by factions, with all the turbu- lence, disorder, and uncertainty that the rule of fac- tions ever implies. Such a system is a travesty of popular government and the antipodes of true democ- racy. Under the same conditions of human nature, with no element of decision lacking then that we have now, the framers of the Constitution established the system under which we have flourished and rejected that which it is now proposed to set up and which all THE CONSTITUTION AND ITS MAKERS 83 experience has shown to be a failure. Their system embodied in the Constitution has proved its efficacy. It has worked well and it has been an extraordinary success. The other, burdened with the failures of centuries, has always trodden the same path which revolves in the well-worn vicious circle from democracy to anarchy, from anarchy to despotism, and then by slow and painful steps back to the high levels of an intelligent freedom and an ordered liberty. Our an- cestors sought to make it as impossible as human in- genuity could devise to drag democracy down by the pretence of giving it a larger scope. We are asked to retrace our steps, adopt what they rejected, take up that which has failed, cast down that which has tri- umphed, and for government by the people substitute the rule of factions led by the eternal and unwearied champions who in the name of the people seek the pro- motion which they lack. Such are the questions which confront us to-day, amazing in their existence under a Constitution with such a history as ours. The evils which it is sought to remedy are all, so far as they actually exist, curable by law. No doubt evils exist; no doubt advance, reform, progress, improvements are always needed as conditions change, but they can all be attained by law. There is no need to destroy the Constitution, to wreck the fundamental principles of democracy and of the Bill of Rights embodied in the first ten amendments, in 84 THE CONSTITUTION AND ITS IVIAKERS order to attain to an amelioration of conditions and to a wider and more beneficent social state when statutes can effect all and more than is demanded. It is not necessary to scuttle a noble ship in order to rid her of rats; it is not imperative to burn the strong, well- timbered house which has sheltered successive genera- tions because there is a leak in the roof; it is only a madman who would hurl down in blackened ruin a noble palace, the work and care of centuries, because a stain easily erased may now and then be detected upon the shining whiteness of its marble walls. All these questions, all these reforms and revolutions so gloriously portrayed to us, it cannot be said too often, are very old. Their weakness is not that they are new but that they are timeworn and outworn. The voices which are now crying so shrilly that we must destroy our Constitution and abandon all our principles of government have been heard — " In ancient days by Emperor and clown." They are as old as human discontent and human impatience and are as ancient as the flattery which has followed sovereign authority from the days of the Pharaohs to our own. There is a familiar story, which we all heard as chil- dren, of the courtiers of Knut, King of England, a mighty warrior and a wise man, not destitute evidently of humor. These courtiers told the King that the THE CONSTITUTION AND ITS MAKERS 85 tide would not dare to come in against his command and wet his feet. So he bade them place his chair near the edge of the sea and the main came silent, flooding in about him, and you all remember the lesson which the King read to his flatterers. Many kings have come and gone since then, and those who still remain, now for the most part walk in fetters. But the courtier is eternal and unchanged. He fawned on Pharaoh and Caesar and from their day to our own has always been the worst enemy of those he flattered. He and his fellows contended bitterly in France for the privilege of holding the king's shirt, and when the storm broke which they had done so much to con- jure up, with few exceptions they turned like cravens and fled. New courtiers took the vacant places. They called themselves friends of the people, but their character was unaltered. They flattered the mob of the Paris streets, shrieking in the galleries of the Con- vention, with a baseness and a falsehood surpassing even those of their predecessors who had cringed around the throne. Where there is a sovereign there will be courtiers, and too often the sovereign has listened to the courtiers and turned his back on the loyal friends who were ready to die for him but would not lie to him. Too often has the sovereign forgotten that, in the words of one of the most penetrating and most brilliant of modern English essayists, ''a gloomy truth is a better companion through life than a cheerful 86 THE CONSTITUTION AND ITS MAKERS falsehood." Across the centuries come those danger- ous and insidious voices and they sound as loudly now and are as false now as ever. They are always at hand to tell the sovereign that at his feet the tide will cease to ebb and flow, that the laws of nature and economic laws alike will at his bidding turn gently and do his will. And the tides move on and the waves rise and the sovereign who has listened to the false and selfish voices is submerged in the waste of waters, while the courtiers have rushed back to safety and from the heights above are already shouting, ''The king is dead ! Long live the king !'^ I have a deep reverence for the great men who fought the Revolution and made the Constitution, but I re- peat that I as little think that all wisdom died with them as I do that all wisdom was born yesterday. When they dealt with elemental questions and funda- mental principles, the same yesterday, to-day, and forever in human history, I follow them because they have proved their wisdom b}^ their success. I am not ready to say with Donne: We are scarce our father's shadow cast at noon; but I am more than ready — I profoundly believe that we should cherish in our heart of hearts the noble and familiar words of the wise son of Sirach: Let us now praise famous men and our fathers that begat us. The Lord hath wrought great glory by them through his great THE CONSTITUTION AND ITS MAKERS 87 power from the beginning. Leaders of the people by their counsels and by their knowledge of learning meet for the peo- ple; wise and eloquent in their instructions; all these were honored in their generations and were the glory of their times. There be of them, that have left a name behind them, that their praises might be reported. And some there be which have no memorial; who are perished as though they had never been; and are become as though they had never been born; and their children after them. But these were merciful men whose righteousness hath not been forgotten. With their seed shall continually remain a good inheritance and their children are within the covenant. Their seed standeth fast and their children for their sakcs. Their seed shall remain forever and their glory shall not be blotted out. Their bodies are buried in peace; but their name liveth forevermore. The people will tell of their wisdom and the congregation will show forth their praise. THE COMPULSORY INITIATIVE AND REFER- ENDUM, AND THE RECALL OF JUDGES ^ In discussing a subject so momentous as the prin- ciples of government it is of great importance to de- termine at the outset exactly what we mean by the terms we use. Nothing is more dangerous, when we are trying through inquiry to arrive at direct results, than to be the slaves of words or phrases. We all believe in liberty, for instance, and desire to promote it, but explanatory words are needed, for the liberty we mean, and the only liberty worth having, is an ordered freedom and not the license which knows no law. The word '^ progress" has been much used of late in public discussion, but mere progress is not necessarily good. Everything depends on the direc- tion in which the progress is made. We speak, for example, of the progress of a disease, which is a most undesirable progress either in a human being or in a body politic. Progress is our aim and purpose only when it means an advance from bad to good, from good to better, or from better to best. The word "people,'' again, in connection with the constitutional lAn address delivered at Princeton University March 8, 1912. I have omitted from this address those portions which were merely repetitions of arguments contained in the two preceding addresses. 88 COMPULSORY INITIATIVE AND REFERENDUM 89 changes which have been advocated for the last few years, is also used in a misleading manner. The " people '^ referred to in the Constitution means all the people of the United States. "People'^ as referred to in popular discussion by those who favor radical alterations in our Constitution invariably means a majority of the voters, which is a totally different thing from the people. It is quite true that the voters are the channel through which we necessarily obtain an expression of the popular will, but a majority of the voters are not necessarily the people and do not at all times represent the real wishes of the people. The majority of those who vote on any given ques- tion may be a very narrow one. It may be a very ephemeral one. The majority of one year may be the minority of the next, and yet you will observe that in all the practical arrangements for the compulsory initiative and referendum and for the recall of judges, the people who can compel the initiative and who in practice carry the referendum, the number who can force a recall and who, in its practical operation, may be able to carry it, are but a small minority of the voters. To start the initiative or the recall, in all the provisions that I have seen, only a minority, sometimes a very small percentage, of those who voted at the last elec- tion is required. When the act asked for has been adopted by the legislature and referred, it appears, if experience is of any value, that a large proportion of 90 COMPULSORY INITIATIVE AND REFERENDUM the voters express no opinion, cither from indifference or from not comprehending the question, while the small and interested minority take pains to vote for the law, the submission of which to the voters has been compelled by their original action. The result is that laws are placed upon the statute-book without any sufficient evidence that they are there — I will not say by the will of the people, but even by the will of the majority of the registered voters. A small minority of the voters would be generally effective under these methods, and of course a small minority of the voters is a still smaller minority of the people, for the voters themselves are a comparatively small minority of the whole people. Therefore it is impor- tant to bear in mind that when it is proposed to make the government more directly a government of the people, what is intended is to make the government more quickly responsive to and more absolutely under the control of the majority of the voters, whether that majority is large or small. Also it is to be remembered that this will result in the destruction of representative government, about which I shall have something to say later on, and it is the substitution of the will of a portion of the voters for the will of all the voters who are now represented by the legislative bodies. I cannot express my meaning better than by quoting from a distinguished ex-president of this university,^ who says 1 President Wilson. AND THE RECALL OF JUDGES 91 ill his book on Constitutional Government; published in 1908: There are many evidences that we are losing confidence in our State legislatures, and yet it is evident that it is through them that we attempt all the more intimate measures of self- government. To lose faith in them is to lose faith in our very system of government, and that is a very serious matter. It is this loss of confidence in our legislatures that has led our people to give so much heed to the radical suggestions of change made by those who advocate the use of the initiative and the referendum in our processes of legislation, the virtual abandon- ment of the representative principle, and the attempt to put into the hands of the voters themselves the power to initiate and negative laws, in order to enable them to do for themselves what they have not been able to get satisfactorily done through the representatives they have hitherto chosen to act for them. In the same way, when we come to the considera- tion of the Constitution upon which I am to have the honor to speak to you to-night, it is important to know just what we mean by a "constitution.'^ A constitu- tion in its proper significance, as I understand it, is a declaration of certain broad principles upon which government must be based and by which laws are to be tested. The people with great deliberation agree upon these general principles, submitted to them by men capable of defining and formulating them, and then they are adopted by the voters after long con- sideration and debate. They are not put beyond the possibility of change, as we are told was the ease with IlA-\ IJ < I J / 92 COMPULSORY INITIATIVE AND REFERENDUM I the laws of Lycurgus, but change or amendment of \ the instrument are provided for under conditions which ^ not only make alteration difficult but which are framed to secure as nearly as possible the expression of the will of an overwhelming majority of the voters who represent the people. Laws which are subsequently passed by the legislative bodies called into being by the Constitution are to be tested and tried by the general principles which the people have estabhshed as the foundation of all government. In this country we have fallen into the bad habit in most of the States of placing in constitutions provisions which should be the subject of laws and statutes and which have no relation to general principles. The effect of this has been extremely unfortunate, for it has caused a wide- spread feeling that constitutions do not differ from laws; that they may deal with any subject and be the I receptacle of any ideas which at the moment happen 1 to be popular. This involves not only a complete misapprehension of the true purposes of the Constitu- tion, but tends to destroy the sanctity which an in- strument embodying great general principles of govern- ment ought always to possess. I cannot put the point which I have been trying to make better than by quoting again the former distinguished president of this university. In a work entitled The State, in sec- tion 896, dealing with this habit of regarding the Con- stitution as if it was an ordinary law, Mr. Wilson says: AND THE RECALL OF JUDGES 93 The objections to the practice are as obvious as they are weighty. General outHnes of organization, such as the Con- stitution of the United States contains, may be made to stand without essential alteration for long periods together, but in proportion as constitutions make provision for interests whose aspects must change from time to time with changing circum- stances they enter the domain of such law as must be subject to constant modification and adaptation. Not only must the distinctions between constitutional and ordinary law hitherto recognized and valued tend to be fatally obscured, but the much to be desired stability of constitutional provisions must in great part be sacrificed. Those constitutions which contain the largest amount of extraneous matter, which does not concern at all the structure or functions of government, but only private or particular interests, must, of course, however carefully drawn, prove subject to most frequent change. In some of our States, accordingly, constitutions have been as often changed as im- portant statutes. The danger is that constitution making will become with us only a cumbrous mode of legislation. The Constitution of the United States, which Mr. Wilson citeS; is a true representative of what a con- stitution should be. It contains only general prin- ciples, with provisions for the machmery necessaiy to carry on the government based on those general prin- ciples. The first ten Amendments to the Constitu- tion, adopted immediately after its ratification by the required number of States, are in reality a bill of rights and were placed there as the famous bill of rights was placed in the statute-book of England and as the bill of rights was placed in the Constitution of 1780 of Massachusetts, a constitution which still endures, with 94 COMPULSORY INITIATIVE AND REFERENDUM the view of protecting the rights of the individual man and of the minority against the possible tyranny of the majority. Lord Acton, in his History of Freedom^ in one of the essays on liberty, says: The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities. The Constitution of the United States, with its first ten Amendments, meets that severe test more success- fully, I believe, than any constitution ever framed by man. Let me quote once more the same eminent authority as to what we accomplished in America when we framed the Constitution of the United States. American independence was the beginning of a new era, not merely as a revival of the Revolution, but because no other revolution ever proceeded from so slight a cause or was ever conducted with so much moderation. The European mon- archies supported it. The greatest statesmen in England averred that it was just. It established a pure democracy, but it was democracy in its highest perfection, armed and vigilant, less against aristocracy and monarchy than against its own weakness and excess. Whilst England was admired for the safeguards with which, in the course of many centuries, it had fortified liberty against the power of the crown, America appeared still more worthy of admiration for the safeguards which, in the deliberations of a single memorable year, it had set up against the power of its own sovereign people. It re- sembled no other known democracy, for it respected freedom, authority, and law. It resembled no other constitution, for it was contained in half a dozen intelligible articles. Ancient Europe opened its mind to two new ideas — that revolution AND THE RECALL OF JUDGES 95 with very little provocation may be just and that democracy in very large dimensions may be safe. No greater tribute than this has ever been paid to the Constitution of the United States, and it is all stated with the precision and the weight of a profound student of human history. What he says of our Con- stitution follows an essay upon '' Freedom in Antiquity/' in which he sketches the rise and fall of Athenian de- mocracy, the gradual departure from the laws of Solon, the development of legislation by direct popular vote, and the removal of all limitations upon the power and action of the majority. Let me read to you the words in which Lord Acton sums up the result: The philosophy that was then in the ascendant taught them that there is no law superior to that of the State — the lawgiver is above the law. It followed that the sovereign people had a right to do what- ever was within its power, and was bound by no rule of right or wrong but its own judgment of expediency. On a memorable occasion the assembled Athenians declared it monstrous that they should be prevented from doing whatever they chose. No force that existed could restrain them; and they resolved that no duty should restrain them, and that they would be bound by no laws that were not of their own making. In this way the emancipated people of Athens became a tyrant; and their government, the pioneer of European freedom, stands condemned with a terrible unanimity by all the wisest of the ancients. They ruined their city by attempting to conduct war by debate in the market place. Like the French Republic, they put their unsuccessful commanders to death. They 96 COMPULSORY INITIATIVE AND REFERENDUM treated their dependencies with such injustice that they lost their maritime empire. They plundered the rich until the rich conspired with the public enemy, and they crowned their guilt by the martyrdom of Socrates. When the absolute sway of numbers had endured for near a quarter of a century, nothing but bare existence was left for the State to lose; and the Athenians, wearied and despondent, confessed the true cause of their ruin. . . . The repentance of the Athenians came too late to save the Republic. But the lesson of their experience endures for all times, for it teaches that government by the whole people, being the government of the most numerous and most powerful class, is an evil of the same nature as unmixed monarchy, and requires, for nearly the same reasons, institutions that shall protect it against it- self, and shall uphold the permanent reign of law against arbi- trary revolutions of opinion. My purpose in citing this passage from Lord Acton is not to remind you of the failure of Athenian democ- racy, but to call to your attention, what it is of the utmost importance to remember in the discussion in which we are engaged, and that is that the proposi- tions now offered for changing our system of govern- ment and our Constitution are all very old. Legisla- tion by direct popular vote was familiar to the Athenians and you have but to read The Republic and the Laws of Plato and the Politics of Aristotle to find out that there are scarcely any ideas in regard to gov- ernment which were not developed and discussed by the Greeks, men of perhaps the highest intelligence which the world has ever seen. Li the same way, legislation AND THE RECALL OF JUDGES 97 \ by direct popular vote coupled with the veto of the tribunes of the people, was practised in Rome, and the outcome is familiar to all the world. The result was the despotism of the Caesars. The one great contri- bution of modern times to the science of government has been the representative system. There were hesitating steps taken in that direction during the Middle Ages, but the real development of the repre- sentative principle was effected in England and has been the glory of the English-speaking race. Repre- sentative government, in other words, stood for a great advance over the democratic systems of Greece and Rome and of the mediaeval Italian cities. I am not now concerned to show from history which system was the more successful. I merely desire at this point to call your attention to the fact that, while it might be better or worse to adopt legislation by direct vote as a substitute for representative government, there can be no question whatever that to abandon repre- sentative government and take up in its place legisla- tion by direct vote is to return from a high stage of evolution to a lower and more primitive one. The life of the amoeba may be a better life and a more enviable one than that of the elephant, for example, but there can be no question that the amoeba is a lower stage in the scale of evolution than is the elephant. There is therefore nothing new in these propositions as to legislation by direct vote, and if we examine the 98 COMPULSORY INITIATIVE AND REFERENDUM scheme for the recall of judges we shall see that there is nothing novel in that idea either, for not only has control of the courts by the sovereign authority been familiar at all stages of history, but the actual practice of judicial recall was attempted in France during the Revolution of 1848. The provisional government made the judges removable at pleasure, and if you will take the trouble to read the manifestoes issued by Ledru-Rollin you will see how he asks the voters to let him know if any judge does not behave in accord- ance with their wishes, so that he may remove the peccant magistrate, and he further calls attention to the fact that the judges are on the bench simply to do the popular will. They had also, at the time of that Revolution in 1848, not only this control of the judges under the provisional government, but also the "mandat imperatif' and government workshops. I will only pause long enough to say that the result of those experiments in France was the plebiscite and the Third Napoleon. Representative government and lib- berty faded away together and the executive became all-powerful. Therefore I repeat that in these proposi- tions now made to us there is nothing new. They are old propositions. We are to-day asked to lay aside the great advance in government made, as history shows, by the representative system and return to earlier forms. Let us first consider the compulsory initiative and AND THE RECALL OF JUDGES 99 referendum in their practical working. One of the great arguments used by the advocates of these changes in our Constitution is that by obtaining the direct action of the voters we shall be free from the demoraliz- ing influence and from the control of money in politics and in our legislatures. In the alterations, so generally made of late in our election laws in order to compel nominations to be made in popular primaries, we have an opportunity to test the claim which has been ad- vanced in favor of these reforms, that we should thereby rid ourselves of the influence of money. The method of choosing executive officers or members of the legislature is an alteration only in the mechanism of government, although I personally think that many of these changes are and have proved to be injurious and not beneficial. But none the less these primaiy systems afford us, as I have just said, an excellent opportunity of testing the question of the use of money under a system of direct popular action. I have al- ways believed theoretically that the more elections and elective offices were multiplied, and the more elabo- rate the machinery for selecting and electing candidates, the larger the field for professional politicians and for the employment of money to control election results. The evidence afforded by the primary system in actual operation seems to confirm this theory. In the con- test which arose over the seat of Senator Stephenson, of Wisconsin, where the primary system is in full 100 COMPULSORY INITIATIVE AND REFERENDUM operation, some interesting facts were brought out. It appears that in 1909, at the time when Senator Stephenson was nominated in the primaries, the expenditures at the primary election by all candidates, exclusive of the amounts spent by the senatorial can- didates, is conservatively estimated on the returns required by law at $610,174, and if the amount ex- pended by all the senatorial candidates be added, the total amount spent in those primary elections comes to $802,659, while the total vote, RepubHcan and Democratic, was 230,291. In other words, it cost $3.48 per vote to get that number of voters to the polls, and I believe that I am right in saying that only about one-half of the Republican vote of the State was actually polled in the primaries. Nothing in the past under the old convention system has equalled this really appalling expenditure at the primaries in a single year and in a single State. From this evidence of the primaries, what reason have we to hope that money will not play an enormous part in securing the initiation, the reference, and the adoption of any adroitly drawn laws which the great money interests may happen to desire? . . . Let me in closing end where I began by once more calling your attention to the purpose and spirit of the Constitution of the United States. The immediate object of the men who met at Philadelphia in 1787 was to provide for a Union of the States in a general gov- AND THE RECALL OF JUDGES 1.01 ernment and for the adjustment of the relations between the general government thus created and the several States. The result in this direction was a very re- markable piece of work and has ever since commanded the admiration of the world. It was the appUcation of the principles of federation on a scale and in a manner which made it practically a new achievement in the science of government and the fundamental questions growing out of the relations of the States to the general government, which occupied in their discussion the first seventy years of our existence, and which culmi- nated in a civil war, have been settled. No one to-day desires to disturb those relations as they have been finally determined, and no direct change in them is sought by any of those who now urge reforms upon us. The rest of the work in 1787 was the estabhshment and declaration of certain fundamental principles upon which free government was to rest. In the Constitution itself the makers acted on the principle that the thi'ee great branches of government — the legislative, the executive, and the judicial — should be equal, inde- pendent, and co-ordinate. Their action carried out in practice the fundamental principle of free government, as I conceive it, which is expressed in the constitution of Massachusetts in specific words. Let me quote those words to you, for they are, as I believe, a very great and a very noble declaration. The thirtieth article of the constitution of Massachusetts says: / 102 CGIvIPULSORY INITIATIVE AND REFERENDUM In the government of this Commonwealth the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them, to the end it may be a government of laws and not of men. That is one and perhaps the greatest of the principles embodied by its makers in the Constitution of the United States. But it is only one of many. In the first ten articles of amendment, without which the Con- stitution would never have been ratified by the neces- sary number of States, there is embodied, as I have said, a bill of rights, and in those ten amendments every line is a statement of a general principle. The bill of rights was intended to protect the rights of minorities and of individuals. The separation of the three great dep^a^Ttments wa^ meant to prevent the concentration of power, and all were intended to put limitations upon numerical majorities. The framers of the Constitution did not believe that any man or any body of men could safely be intrusted with un- limited power. They thought, and all experience justified them in thinking, that human nature could not support the temptation which unlimited power always brings. They had deeply ingrained the behef of the English-speaking people that the power of the king should be strictly limited. They felt that this AND THE RECALL OF JUDGES 103 great principle applied with equal force to ten thousand or ten million kings — in other words, to a popular majority of numbers. They established a represent- ative democracy and a thoroughly popular govern- ment, but they thought that the "right divine of kings to govern wrong" was as false and dangerous a maxim when applied to many men called voters as when applied to one who happened to wear a crown. The people, through their delegates, made the Con- stitution. They can unmake it. They can create and they can destroy, but the destruction or the alteration must be the work of the people and not of a temporary majority of voters. It is for this reason that it is pro- vided in the Constitution that amendment and change can only come by methods which insure, so far as pos- sible, the expression of the will of a steadfast and de- cisive if not overwhelming majority of the people. Two-thirds of their representatives in Congress and the Senate must vote for an amendment, and three- fourths of the States must adopt it. The British Con- stitution puts limitations on the power of the crown; the American Constitution puts limitations on the power of the majority of the voters. These limitations are to assure the preservation of the Constitution from any change which the people — the whole people and not merely a majority of voters — do not demand, and to make it certain that there shall be no amendment except after ample consideration and by the most 104 COMPULSORY INITIATIVE AND REFERENDUM decisive expression of the people's will. If all these checks and balances, all these carefully devised safe- guards which are to secure the people in their own government and to protect minorities and individuals, are to be swept away, then there is no need of any Constitution at all. General principles must then be cast to the winds, and we must hold our lives, our honor, our liberties, and our property at the will of a majority of numbers, narrow perhaps, fleeting, uncer- tain; here to-day and gone to-morrow, from which no man can gather assurance as to his future or as to his rights. The most vital perhaps of all the great principles embodied in the Constitution is that of securing the absolute independence of the judiciary. Courts are human and they have erred, but bear in mind that this is a comparative world. As Doctor Johnson wisely said: In political regulations good can never be complete; it can only be predominant. It is not a question of whether you are going to sub- stitute for a system imperfect with some of the imper- fections inherent in human nature another system absolutely perfect and final. The question to be de- cided is whether the system which is proposed is better than the system we have. The great Roman jurist, Ulpian, defined the law in a memorable phrase which AND THE RECALL OF JUDGES 105 was subsequently embodied in the Digest or Pandects of Justinian. Let me recall it to you: Jiistitla est constaiis et perpctua voluntas jus suum cuique tribuendi. Juris prsecepta sunt haec: honeste vivere, alterum non liBdere, suum cuique tribuere. Jurisprudencia est divinarum atque humanarum rerum notitia, justi atque injustis cientia. That is a great and noble conception of the law and one that it is well to bear in mind so that you may determine where it is most likely to be observed and held sacred, whether it will be most surely found in the quiet of the court or among vast masses of men heated with political and party passion. In the long ' course of the centuries during which western civiliza- tion has been developed it has been proved again and again that whatever its defects there is nothing so essential, so vital to human rights and human liberty, as an independent court. Beware how you break down that principle because courts here and there have erred. Hard cases make the worst laws and bad laws are the breeders of anarchy and disorder. We must proceed, if we would proceed with safety and lasting results, on general principles; and if history proves anything it proves that the greatest safeguard of human rights in the long run is to be found in independent courts which can be swayed neither by the whisper of the bribe-giver, by the clamor of the mob, by the command of the autocrat, or by the dark threats of secret organizations. THE CONSTITUTION AND THE BILL OF RIGHTS ' During the last few years other questions have arisen far more important than any tariff or any cur- rency can possibly be, because they involve nothing less than the fundamental principles of American gov- ernment. An agitation has been in progress and is now being carried on by men of both parties, whether the party division which it causes has been declared or not, which aims at and if successful can lead to noth- ing less than a complete revolution in our system of government. The scheme has now extended to the primaries, which are merely a part of the machinery of government and do not in themselves involve any constitutional principle. It has been seriously pro- posed in this State, and I think in this State alone, to abolish party enrolment from the party primary. The proposition is a contradiction in terms. The primaries were established for the purpose of purify- ing and improving the methods of nominating part)'' candidates and for no other object. Those who belong to no party are not compelled to enter them and have ^ From a speech as presiding officer at the RepubHcan State Con- vention of Massachusetts held in Boston October 5, 1912. 100 THE BILL OF RIGHTS 107 no right to do so unless they intend to become members of some party for which and for which alone party primaries exist. If you abolish the party enrollment and the party ticket and put all the names on one ballot you turn the primaries into a preliminary election. But at the same time you do much more than this, for you would then have an arrangement by which or- ganized minorities, belonging to any party or to none, could go into the primaries and control the nominations of all parties. In other words, under this system not only Democrats but any voters not Repubhcans can decide the selection of Repubhcan candidates, and of course the same is true of -Democratic candidates, who could be nominated by Republican or even Prohibition votes. By this scheme we are to be deprived of the right of choosing our own candidates and the whole thing becomes a travesty on popular government. It is idle to suppose that large bodies of men who agree on certain political principles will long submit to having candidates chosen for them whose selection they can- not themselves control. My right as a citizen and the right of those who think with me to nominate our own candidates for office is a great and inalienable right which is not to be taken from us by any jugglery of the statutes. If Repubhcans are not to have the oppor- tunity to select their own candidates and Democrats are not to have the opportunity to select theirs, then I say that it is the duty of every responsible political 108 THE CONSTITUTION AND party holding well-settled principles and favoring well- defined policies to select its own candidates by its own voluntaiy methods and place their names upon the ballot on election-day by nomination papers. If the party enrolment is abolished the primaries are worth- less for the purpose for which they were established, and it will be the duty of all responsible parties to stay outside of them and nominate their candidates them- selves and then place them upon the ballot under the means provided by law. I have mentioned this point because, although primaries affect only the mechanism of government, this attempt so to arrange them, that they will become a mere vehicle for an organized minor- ity to control all nominations, brings them at once into relation with the much more profound changes affect- ing fundamental principles which are now urged upon us. The agitation of which I have spoken and which, as I have said, aims at nothing less than a complete revolution in our system of government, begins by this distortion of the primaries and then seeks to break down representative government and make the courts subservient to the will of a majority of the voters at any given moment. The first purpose is to be ac- complished by the compulsory initiative and referen- dum; the second by the recall of judges and the re- versal by a popular vote of judicial decisions. I am opposed to the compulsory initiative and referendum THE BILL OF RIGHTS 109 because I am in favor of government by the people and through majorities of the voters and I am opposed to and always shall resist to the utmost of my power any attempt to substitute for them government by minorities of the voters. If you will study carefully the compulsory initiative and referendum you will find that it is nothing but a scheme to enable minorities to rule. A small minority of the voters can initiate legislation and compel the legislature to pass laws. Wherever the compulsory initiative and referendum have been adopted, this power of compulsory initia- tion has been conferred upon a small percentage of the voters. Remember at the outset that the voters themselves are only a small minority of the people. The total vote at the last presidential election was in round numbers fifteen millions and the population of the United States was ninety millions. That is, one- sixth of the people took part in the presidential elec- tion and one-twelfth determined the result. The voters are not the people. They are merely the neces- sary instrument selected for the expression of the popular will. But they are not the people; they are representatives and trustees. Now it is proposed to give to a small fraction of the voters — not of the peo- ple — this great power to compel the submission of laws to a popular vote and when those laws are sub- mitted to the popular vote experience shows that they are almost invariably earned by a minority of the 110 THE CONSTITUTION AND voters. Those who are interested in the passage d the law of course take pains to vote; a small number who are interested in the other direction vote against it, and the great mass remain indifferent. In the State of Ohio last September forty-two constitutional amendments were submitted to the people. It was 1 The details of the voting, which are very instructive, are given by Mr. C. B. Galbraith, who was secretary of the convention, in an article in the New York Independent for December 19, 1912. Following is the vote on each of the amendments: Votes No. Yes No 1. Reform in Civil Jury System 345,686 203,953 2. Abolition of Capital Punishment 258,706 303,246 3. Depositions by State and Comment on Fail- ure of Accused to Testify in Criminal Cases 291,717 227,547 4. Suits against the State 306,764 216,634 5. Damages for Wrongful Death 355,605 195,216 6. Initiative and Referendum 312,592 231,312 7. Investigations by Each House of General As- sembly 348,779 175,337 8. Limiting Veto Power of Governor 282,412 254,186 9. Mechanics' and Builders' Liens 278,582 242,385 10. Welfare of Employees 353,588 189,728 11. Workmen's Compensation 321,558 211,772 12. Conservation of Natural Resources 318,192 191,893 13. Eight-Hour Day on PubHc Work 333,307 232,898 14. Removal of Officials 347,333 185,986 15. Regulating Expert Testimony in Criminal Trials 336,987 185,458 16. Registering and Warranting Land Titles 346,373 171,807 17. Abolishing Prison Contract Labor 333,034 215,208 18. Limiting Power of General Assembly in Extra Sessions 319,100 192,130 19. Change in Judicial System 264,922 244,375 20. Judge of Court of Common Pleas for Each County 301,891 223,287 21. Abolition of Justices of the Peace in Certain Cities 264,832 252,936 22. Contempt Proceedings and Injunctions 240,896 257,302 23. Woman's Suffrage 249,420 336,875 24. Omitting Word *' White" 242,735 265,693 25. Use of Voting Machines 242,342 288,652 26. Primary Elections 349,801 183,112 27. Organization of Boards of Education 298,460 213,337 THE BILL OF RIGHTS 111 practically a revision of their fundamental law involv- ing questions of the greatest moment. Fifty per cent only of the vote of Ohio for governor in 1908 was cast for the amendment receiving the highest number of votes and less than forty per cent for the amendment receiving the lowest number of votes. Every amend- VOTES No. Yea No 28. * Creating the Office of Superintendent of Public Instruction to Replace State Commissioner of Common Schools 256,615 251,946 29. To Extend State Bond Limit to Fifty MiUion Dollars for Inter-County Wagon Roads. . . . 272,564 274,582 30. Regulating Insurance 321,388 196,628 31. Abolishing Board of Public Works 296,635 214,829 32. Taxation of State and Municipal Bonds, Inheri- tances, Incomes, Franchises and Production of Minerals 269,039 249,864 33. Regulation of Corporations and Sale of Personal Property 300,466 212,704 34. Double LiabiUty of Stockholders and Inspec- tion of Private Banks 377,272 156,688 35. Regulating State Printing 319,612 192,378 36. Eligibility of Women to Certain Offices 261,806 284,370 37. CivilService 306,767 204,580 38. Out-Door Advertising 261,361 262,440 39. Methods of Submitting Amendments to the Constitution 271,827 246,687 40. Municipal Home Rule 301,861 215,120 41. Schedule of Amendments 275,062 213,979 For License to Traffic in Intoxicating Liquors 273,361 Against License to Traffic in Intoxicating Liquors. 188,825 Some recent Ohio election statistics are given here for purposes of comparison. The vote for governor in 1908 was 1,125,054; in 1910 932 262. The highest vote cast on any amendment was 586,295 on woman's suffrage; the lowest, 462,186, was polled on the Hquor license amend- ment. A vigorous campaign was waged for both of these. It will be noted, however, that the aggregate vote on the latter was much lower than that given for any other proposal. It stood alone at the head of the second column of the ballot, and many voters evidently, after fol- lowing down the column to No. 41, thought they had reached the end of the Ust and did not notice the Ucense proposal at the head of the next column. Of all questions considered, the initiative and referendum was most thoroughly discussed in and out of the convention. It will be noted 112 THE CONSTITUTION AND ment that was adopted was carried by a third to a quarter of the voters of the State who voted for gov- ernor in 1908.^ Constitutional amendments must be submitted to the people and always have been in the States, but it is monstrous that anything less than a that while the majority for this prime article of the progressive faith is large, it is exceeded by that given for each of the twenty-three other proposals. Measures accorded a high vote in the convention were not always so popular with the electors of the State. The amendment receiving the highest majority passed the convention by only a single vote more than the lowest in the entire series, while Nos. 24 and 36, which passed the convention almost unanimously, were both defeated. Attractive titles undoubtedly helped to increase the majorities m some instances. Amendment No. 1 is brief. Following is the full text: " The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury." This amendment was given the title "Reform in Civil Jury System. "Reform" in these progressive times is peculiarly attractive. It is a case in which a rose by any other name would not smell quite so sweet. This initial word probably brought a few thousand votes to an amend- ment that would certainly have carried under a more appropriate title. In this class should be included No. 10, "Welfare of Employees." It provides that "laws may be passed fixing and regulating the hours of labor, establishing a minimum wage and providing for the health, comfort, safety and general welfare of employees." In this instance also the title helped a proposal that would doubtless have carried with a more explicit designation. It will be seen that eight of the forty-two proposals failed to receive the required majority. The first of these is the "Abolition of Capital Punishment." The old doctrine of "an eye for an eye and a tooth for a tooth" was promulgated effectively in the convention and before the people. It was also urged that under existing law in Ohio the jury may recommend mercy and thus prevent electrocution. The issue was clearly defined and the result fairly represents the present senti- ment of the State on this subject. There are evidences, however, that the verdict is not final and that the time is not far distant when it will be reversed. To the surprise of the most careful observers No. 22, providing for the regulation of contempt proceedings and the prohibition of injunc- tions in controversies involving the employment of labor, was lost. The principle embodied in this amendment has been advocated for years by organized labor. Woman's suffrage was defeated by a decisive majority, but not so large proportionately as that registered against the reform in Oregon in 1910, on the occasion of its third submission to the electors of that THE BILL OF RIGHTS 113 majority of all the voters should be able to adopt a constitutional amendment. We had two constitu- tional amendments, of no great importance, submitted in this State at the last election. Less than two-thirds, not of the voters but of those who came to the polls, state through initiative petition. The Uquor interests were most active in opposing this amendment. Unfortunately the opposition to woman's suffrage adversely affected No. 36, which provided for the appointment of women to certain offices of the State and its political subdivisions "where the interests and care of women and children are involved." On the face of the returns the electors of Ohio have evi- dently resolved thoroughly to ehminate women from participation in pubhc affairs. Perhaps the greatest surprise was the result of the vote on No. 24, ''Omitting the Word 'White.'" The Constitution of 1851, which was adopted before the emancipation of the colored race, limited the elec- tive franchise to "every white male citizen of the United States of the age of twenty-one years." The word "white" still remains in the Constitution, although it was made of no effect by the adoption of the fifteenth amendment to the Constitution of the United States. The amendment simply sought to make the Constitution of Ohio harmonize in form with the national Constitution. A similar amendment, com- phcated, it is true, with other issues, was submitted in this State in 1867 and defeated. Race prejudice is evidently still strong in Ohio, a State that in 1861-65 poured forth her blood freely to blot out an invidious distinction that is still retained in her Constitution. The authorization of the "Use of Voting Machines" was defeated largely through the strenuous opposition to it in the city of Cleveland, and the apprehension in rural counties that the innovation would in- volve needless expense. Perhaps the word "machines" had for some a sinister suggestion that increased the unfavorable vote. Amendment No. 29, best known among its friends as the "good roads" proposal, was strongly combated in the convention and the opposition was carried to the people. The heaviest vote against it was polled by the farmers of the counties that already have good roads. Many voters in the cities and in the country were opposed to raising the bond limit of the Constitution for any purpose. The last in the hst of defeated amendments is No. 38, "Outdoor Advertising." This simply sought to give the General Assembly authority to regulate outdoor advertising, especially billboards, which often mar the beauty of cities by their unsightly displays. The bill- board companies fought the amendment and thoroughly circularized the State against it. They succeeded in defeating it by a very nar- row margin. • j , • The amendments that carried, without exception, received their large majorities in the large cities of the State. The country vote was light and conservative. In a number of the rural counties every amend- ment was voted down. 114 THE CONSTITUTION AND voted on them, and although there was no substantial opposition to either yet they were put into our Consti- tution by a vote which was less than half of the votes cast for candidates. I could go on and give you case after case of a similar character and they prove beyond the possibility of doubt that the compulsory initiative and referendum is nothing in the world but a device to permit interested and organized minorities to govern. The legislature necessarily represents all the people, whether voted for by all the people or not, and is chosen on that understanding, but the minorities of voters to which we are asked to give this power to compel the submission and the adoption of laws, in the exercise of that power represent nobody but them- selves. This system of compulsory initiative and referendum means the conversion of legislatures into mere machines of record a!nd the destruction of repre- k sentative government. Representative government is [ the one great advance in the methods of government I which has been made in modern times. Its growth, its development, its adoption in one country after another have been coincident with the advance of political freedom, so much so that it has become almost synony- mous with it. The first care of every autocrat, of every dictator, of every man who has seized on power for himself alone, has been to break down the represent- ative body or to reduce it to a form and a ceremony. It is now proposed to abandon this great advance THE BILL OF RIGHTS 115 which has been made in modern times and return to earlier and rejected forms. It is done under the utterly false cry of ''Let the people rule.'' It is not a scheme to let the people rule; that is found in the Constitution of the United States. It is a scheme to enable organ- ized minorities of voters to rule and through the de- vices of the law get possession of the State. y The other great bulwark of freedom has been the independent court. Until the last few years a man would almost have hesitated to have given utterance to such a truism, and now it is proposed to take from the courts their independence. It makes no difference to whom a court is subservient. When it becomes subservient to anybody outside the courtroom — whether that influence comes from the king, from money, or from a body of voters — that court is a servile court. It no longer interprets the law, but it declares that to be the law which someone else wants. Justice from ancient times has always been figured as a beautiful woman, with bandaged eyes, holding with steady hand the scale in which all rights and wrongs are weighed. Those who now assail the courts would drag her from her high throne in the courtroom and put her on the streets to solicit support from the passions of men, to which she will then become at once the victim and the toy. The independent ju- diciary of the United States, and of England, too, taken a^s a whole and allowing for all the failures and defects y 116 THE CONSTITUTION AND incident to fallible human nature, has been the most potent defence and protection of the liberty of the in- dividual man and of the rights of minorities against the oppression of majorities. I cannot here to-day argue this great question in detail; that would take hours instead of minutes. I merely point out to you that it is now assailed and that I do not believe that representative government and judicial independence, which have been the greatest achievements of our race in its battle for political freedom, have suddenly be- come dangerous to popular government. Mark well that all this agitation is directed against the represent- ative and judicial branches of the government. I find in no programme any attempt to limit the executive, and it is logical and inevitable that this should be the case. Constitutional government moves too slowly to suit some people who wish to convert it into an instru- ment for the quick satisfaction of their own desires and aspirations, which may be either beneficial or hurtful to the people at large. For this reason they would substitute for it a government which consists simply of the voters and executive. Go back fifty years and you find an example of a government of that sort in the Third Napoleon with his empire based on the plebiscite. Abraham Lincoln declared at Gettysburg that the government he was trying to pre- serve was "a government of the people, for the people, and by the people," and that government was the THE BILL OF RIGHTS I 117 government of the United States under the Constitu- tion. On October 22, 1862; Governor Andrew, writing to Daniel Henshaw in regard to the conference of loyal governors recently held at Altoona, said: In conclusion I cannot but regret the tendency I observe to obtrude matters mainly personal upon the attention of the people. It is the great cause of Democratic, constitutional, representative government which is now on trial. It is the same Constitution now as it was then, ex- cept for the war amendments, and if Abraham Lincoln and John A. Andrew thought that it was a government of the people which they were giving their lives to save, I do not believe that any of us need be disturbed if we find ourselves in agreement with them. Lincoln also said, in his first inaugural: A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only tnite sovereign of a free people. You observe that he says a majority under "con- stitutional checks and limitations/^ He draws the distinction between government by the people and government by a majority of the voters. I have al- ready pointed out the great gulf fixed between those two things, and the proposition which now confronts us will, if carried out, break down government by the people, which is secured by the limitations of the 118 THE CONSTITUTION AND Constitution, and give us over, bound and helpless, to the action of a majority of the voters appearing at any given moment — voters who are a minority of the people and whose majority may be fleeting, tem- porary, or accidental. It was against this precise situation that the special checks and limitations which Lincoln approved were devised by the convention over which Washington presided. Let me bring home to you just what I mean by asking your attention to the first ten amendments to the Constitution. Those amendments constitute a Bill of Rights. They have become so much a part of the life of each one of us that we think no more of them than of the air we breathe. Lest we forget, let me recall some of them to you. These amendments protect every man in his religion. There may be only two or three gathered together, but Congress can make no law to touch them. They are secure in their right to worship God in their own way. Within a few days a banner has been borne through the streets of a Massachusetts city bearing the demand: "No God — No Master." How do you think that proposition compares with the religious freedom guaranteed to one and all by the Constitution of the United States? To each one of you the Bill of Rights assures freedom of speech. Into the third and fourth amendments our ancestors put the principle of Coke's great declaration that "the house of every man is to him as his castle THE BILL OF RIGHTS 119 and fortress" by securing each one of us against the quartering of soldiers and against unreasonable seiz- ures and search-warrants. In Article V it is provided that no man shall be held to answer for a capital or otherwise infamous crime, except by presentment by a grand jury; nor be subject to be twice put in jeopardy of life or limb for the same offence; nor compelled to be a witness against himself; nor deprived of life, liberty, or property without due process of law; and that no man's private property shall be taken for public use without just compensation. Article VI secures to the accused in all criminal prosecutions speedy and public trial by jury, and he must be informed of the nature and cause of the accusation. He shall have the right to be confronted with the witnesses against him and to have compulsory processes for obtaining witnesses in his favor and the assistance of counsel in his de- fence. By Article VII the right of trial by jury is secured to every one where the value in the contro- versy shall exceed twenty dollars. Article VIII pro- vides that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punish- ments inflicted. Think of what those provisions mean. They defend and protect each one of us in that which is dearest to us. They are the guardians of human rights, for eveiy item there set down is one of the rights of men and none other. Could there be a greater misfortune than 120 THE CONSTITUTION AND to have these famous clauses weakened, broken, muti- lated, or destroyed ? Whose rights do they protect — the rights of majorities? On the contrary, they are the protection of the individual man and of small minorities of men against the power of majorities. AVho are to interpret those provisions and say whether the laws passed by a majority of voters infringe or not upon these great guarantees of liberty? The courts; the courts alone can secure us in the rights which the Constitution gives us. Get rid of representa- tive government, get rid of the courts, and you find yourself at the mercy of any momentary majority of the voters, a minority of the people — usually a minor- ity fraction of all the voters entitled to vote. Your life, your liberty, your property, are left at the discretion of a majority of the voters, which may be accidental, fleeting, temporary, without any chance for that second thought or that appeal to another tribunal which were secured to each one of us by the founders of the Re- public. The Constitution is not a law. It is a declara- tion of principles. The effort now is to turn it into a statute, to be altered by the whim or the passion of the moment. The Constitution guards the rights of each one of us, no matter how humble or how poor. I say to you beware how you allow any man or any men to lay their hands upon that great instrument. It has been the admiration of the world. We have prospered and thriven and been an example to man- THE BILL OF RIGHTS 121 kind under its beneficent provisions which created a self-Hmited democracy, something which until that day men had thought impossible of accomplishment. Do not let it be torn down, for if you do all the great advance in freedom which it represents will perish and we shall return to those primitive forms of govern- ment which in ancient times and in modern times as well have oscillated between anarchy and despotism, with at best only brief intermissions of true and or- dered liberty. THE DEMOCRACY OF ABRAHAM LINCOLN ^ In his History of Twenty-five Years Sir Spencer Walpole says: "Yet, perhaps, of all the men born to the Anglo-Saxon race in the nineteenth century, Mr. Lincoln deserves the highest place in history. No man ever rose more quickly to the dignity of a great posi- tion. No man ever displayed more moderation in counsel, or more resolution in administration, or held a calmer or steadier course. Through the channel of •difficulty and danger, he kept his rudder true.'' ^ This is high praise, but I think that we may go a step further. As the nineteenth century recedes into the past it becomes constantly more apparent that the three great events of that period, the three great facts with a supreme influence upon Western civilization and upon the world, were the preservation of the American Union, the consolidation of Germany, and the unification of Italy. With these three events the names of three men are indissolubly associated — Lin- coln, Cavour, and Bismarck. They stand forth as embodying the cause of national unity in the United States, in Italy, and in Germany. They were the ^ Address to the students of Boston University School of Law, March 14, 1913. 2 History of Twenty-five Years, Vol. 11, p. 65. 122 THE DEMOCRACY OF ABRAHAM LINCOLN 123 leaders, the directing minds in the mighty conflicts which produced the great results, and they loom ever larger and more distinct, as the years pass by, like high mountain peaks, which at a distance separate them- selves from the confused masses of the range from which they rise. I have mentioned these three com- manding iigures in the order in which, as it seems to me, they stand, and as I think they will stand when the final account is made up. But comparisons are needless. The greatness of Abraham Lincoln is ad- mitted by the world and his place in history is assured. Yet to us he has a significance and an importance which he cannot have to other people. It is impossible to translate a beautiful poem without losing in some degree the ineffable quality, the final perfection which it possesses in the language in which it was written. In its native speech the verse is wedded to the form and to the words and has tones in its voice which only those who are "to the manner born" can hear. So Lincoln, whose life, rightly considered, was a poem, speaks to his own people as he does to no other. What he was, and what he did and said, is all part of our national life and of our thoughts as well. We see m him the man who led in the battle which resulted m a united country and we have watched his crescent fame as it has mounted ever higher with the mcessant examination of his life and character. No record has ever leaped to light by which he could be shamed. 124 THE DEMOCRACY OF ABRAHAM LINCOLN Apart from all comparisons it is at least certain that he is the greatest figm-e yet produced by modern de- mocracy which began its onward march at the little bridge in Concord. If ever a man lived who under- stood and loved the people to whom he gave his life, Lincoln was that man. In him no one has a monopoly; he is not now the property of any sect or any party. His fame is the heritage of the people of the United States and; as Stanton said, standing by his deathbed, "He belongs to the ages.'' For all these reasons, it seems to me, in these days of agitation and disquiet, when the fundamental prin- ciples upon which our government rests and has always rested are assailed, that nothing could be more profit- able and more enlightening than to know just what Lincoln's opinions were as to democracy and the true principles of free government. I am well aware that objection may be made to Lincoln, as an authority for our guidance, of the same character as the one brought against the framers of the Constitution, which is that he died nearly half a century ago and that, therefore, however excellent he was in his own day and generation, he is now out of date as a guide in public questions because all conditions have so completely changed. It is quite tme that Lincoln, like Washing- ton, never saw a telephone, an automobile, or a flying- machine, and that economic conditions as well as those of business and finance have been radically altered THE DEMOCRACY OF ABRAHAM LINCOLN 125 since his day. But this is really an inept objection because the subject upon which we seek to know his thoughts concerns the relation of human nature to certain forms and principles of government among men, most of which were as familiar to the speculations of Plato and Aristotle as they are to us; some of which are older than recorded history while the very young- est have been known^ discussed, and experimented with for centuries. So I think we may dismiss the suggestion that Lincoln is antiquated and realize that upon the principles of free government and the capa- bilities of human beings in that direction he is an authority as ancient as the Greek philosophers and as modern as the last young orator who has just dis- covered that this very comparative world is not ab- stractly and ideally perfect. What; then, were the thoughts and opinions of Abraham Lincoln as to the principles upon which free and ordered popular government should rest? He alone can tell us. No one is vested with authority to proclaim to us what Lincoln thought or beheved upon any subject. There is no high priest at that altar to utter oracles which no one else can question and which he alone can inteipret. Lincoln's convic- tions and opinions are to be found in only one place, in his own speeches and writings which, like his fame, belong to his countrymen and to mankind. Fortu- nately we need not grope about to discover his meaning. 126 THE DEMOCRACY OF ABRAHAM LINCOLN Few men who have ever Hved and played a command- ing part in the world have had the power of expressing their thoughts with greater clearness or in a style more pellucid and direct than Lincoln. Of him it may truly be said that his statements are demonstrations. You will search far before you will find a man who could state a proposition more irresistibly, leaving no avenue of escape, or who could use a more relentless logic than the President of the Civil War. We feel as we read his life that he had in him the nature of a poet, the imagination which pertains to the poetic nature and which was manifested not only in what he said and did but in his intuitive sympathy with all sorts and conditions of men. Combined with these attributes of the poetic genius, which is as rare as it is impalpable, were qualities seldom found in that con- nection. He was an able lawyer and had the intel- lectual methods of the trained legal mind. He was also the practical man of affairs, as well as the great statesman, looking at facts with undazzled eyes and moulding men and events to suit his purpose. There is no occasion for guesswork, assertion, or speculation in regard to him when he turned away from the visions of the imagination to confront and deal with the hard problems of life and government, never to any man harder than they were to him. Let us then examine his writings and speeches and see what light they throw upon the questions now sub- THE DEMOCRACY OF ABRAHAM LINCOLN 127 ject to public discussion, which relate to the Constitu- tion of the United States and to the principles upon which that great instrument was based. Let me remind you at the outset that I am going to deal only with the fundamental principles of govern- ment embodied in the Constitution and not at all with the many provisions which simply establish the machinery or mechanism of government. It is im- portant to keep this distinction in mind for it is fre- quently lost sight of and the ensuing confusion is deleterious to intelligent comprehension. The mechan- ism of government may be very important and a change in it may be either beneficent or unfortunate, but it is not vital, whereas, if the fundamental principles are altered, weakened, or abandoned the whole structure will come crashing to the ground. For example: to change the method of electing senators may be harm- ful or beneficial but it is only a change of mechanism. But to abandon the equal representation of the States in the Senate is a vital and destructive change of prin- ciple, for the extinction of the States would mean the extinction of our governmental system and would in- volve in its ruin the basic principle of local self-govern- ment. The number of judges in the Supreme Court is a matter of machinery and expediency. But the appointment and tenure of those judges embody prin- ciples which go to the very root of all ordered and stable government. 128 THE DEMOCRACY OF ABRAHAM LINCOLN It is on questions of principle alone that I would seek to learn the opinions of Lincoln, and before enter- ing upon that inquiry let me define the questions upon which it seems to me well that we should seek his guidance at this time. They are two in number — representative government as involved in the agitation in favor of the compulsory initiative and referendum, and the independence of the courts which is at stake in the demand for the recall of judges and the review of judicial decisions by popular vote. In an attempt to set forth Lincoln's opinions upon these questions it would be impossible to consider the arguments for or against these two propositions, for each one by itself requires a discussion of great length and elaboration. I shall make no effort to show that the compulsory initiative and referendum, so loudly demanded in the name of the people, is in essence a plan to secure not the rule of the people but arbitrary government by small, highly organized, and irresponsible minorities of voters. Nor shall I try to show that the judicial recall and the review of judicial decisions by popular vote would not only, like the compulsory initiative and referendum, establish the power of highly organized minorities among the voters but would also give us servile and subservient courts controlled by an out- side force and therefore incapable of honestly inter- preting the law and doing justice between man and man. I will, however, pause long enough to point out THE DEMOCRACY OF ABRAHAM LINCOLN 129 that both schemes lead consciously or unconsciously to the same result. If successful they would bring us to a government composed of the executive and the voters. It is inevitable that this should be the case, for if you reduce to impotency the representative and judicial branches of the government nothing remains but the executive and the voters. The last conspicuous example of this kind of government was the second empire in France. By a vote of over seven millions to two hundred and fifty thousand Napoleon was made emperor. On May 8, 1870, his constitutional changes, continuing the empire on a more liberal basis, were sustained by a vote of over seven millions to a million and a half, and within six months after this immense expression of popular approval his empire had crumbled into ruins and he was himself a prisoner in Germany. The result of this form of direct democracy was not happy in that instance, at least. And at bottom the question is between direct democracy on the one hand and self-limited democracy on the other. The first is very old, the second very new, dating on a large scale at least only from our own Constitution of 1787, which Lord Acton speaks of as an achievement in the way of self-limitation which men had up to that time regarded as impossible. I have no intention of dis- cussing the merits or demerits of the two systems, but the fact that direct democracy is old and our self- limited democracy is new must not be forgotten. When 130 THE DEMOCRACY OF ABRAHAM LINCOLN it is proposed to emasculate representative govern- ment, as was done by the Third Napoleon, or to take from the courts their independence, it may be a change for the better, as its advocates contend, because almost anything human is within the bounds of possibility, but it is surely and beyond any doubt a return from a highly developed to a simpler and more primitive stage of thought and government. A system of government which consists of executive and people is probably the very first ever attempted by men. Among gregarious animals we find the herd and its leader, and that was the first form of government among primitive men, if we m.ay trust the evidence of those tribes still extant in a low state of savagery who alone can give us an idea of the social and political condition of prehis- toric man. Mr. Andrew Lang, in Custom and Myth, to illustrate a very different subject, says (page 237) : Even among those democratic paupers, the Fuegians, "the doctor-wizard of each party has much influence over his com- panions." Among those other democrats, the Eskimo, a class of wizards, called Angakuts, become "a kind of civil magis- trates" because they can cause fine weather, and can magically detect people who commit offences. Thus the germs of rank, in these cases, are sown by the magic which is fetichism in action. Try the Zulus: "The heaven is the chief's"; he can call up clouds and storms, hence the sanction of his authority. In New Zealand, every Rangatira has a supernatural power. If he touches an article, no one else dares to approach it, for fear of terrible supernatural consequences. A head chief is "tabued an inch thick, and perfectly unapproachable." Mag- THE DEMOCRACY OF ABRAHAM LINCOLN 131 ical power abides in and emanates from him. By this super- stition, an aristocracy is formed and property (the property, at least, of the aristocracy) is secured. Among the Red In- dians, as Schoolcraft says, "priests and jugglers are the only persons that make war and have a voice in the sale of the land." Mr. E. W. Robertson says much the same thing about early Scotland. If Odin was not a god with the gifts of a medi- cine-man and did not owe his chiefship to his talent for dealing with magic, he is greatly maligned. The Irish Brehons also sanctioned legal decisions by magical devices, afterward con- demned by the Church. Among the Zulus " the Itonyo (spirit) dwells with the great man; he who dreams is the chief of the village." The chief alone can " read in the vessel of divination." The Kaneka chiefs are medicine-men. The chiefs here described derive their authority from the popular beHef in their magic powers, but the germ of government which is apparent is that of peo- ple and executive. Out of these wizards and medicine- men, these chiefs protected by the "tabu,'' came the king, as Mr. Frazer shows in his Early History of the Kingship. The machinery was constantly elaborated and perfected as the centuries passed and the king steadily absorbed more power, as was inevitable, but the system remained in essence the executive and the people. On the other hand, we may study experi- ments in direct democracy in Athens and in Rome more than two thousand years ago and at a later time in some of the mediaeval Italian cities. This examina- tion will reveal the fact that representative govern- ment on a large scale is a modern development originat- 132 THE DEMOCRACY OF ABRAHAM LINCOLN ing in England, and also that while the people began long ago to place limitations on the once unrestrained power of the crown or the kingship , it was in our Con- stitution that a people for the first time put limitations upon themselves, which has hitherto been considered an evidence of unusual intelligence and of a high civilization. I have ventured upon this digression because it seems to me important to emphasize the fact that these efforts to get rid of representative gov- ernment and the independence of the judiciary, whether good or bad, are not attempts to advance from what we now have but to revert to earlier and more primitive forms of social and political organizations. This point of reversion to earlier forms so far as it relates to the courts has never been more vividly and strongly stated than by Mr. Roosevelt in an article upon the vice-presidential candidates which he contributed to the Review of Reviews in November, 1896 (page 295) : The men who object to what they style "government by in- junction" are as regards the essential principles of government in hearty sympathy with their remote skin-clad ancestors who lived in caves, fought one another with stone-headed axes, and ate the mammoth and woolly rhinoceros. They are in- teresting as representing a geological survival, but they are dangerous whenever there is the least chance of their making the principles of this ages-buried past living factors in our present life. They are not in sympathy with men of good minds and sound civic morality. . . . Furthermore, the Chicago convention attacked the Supreme THE DEMOCRACY OF ABRAHAM LINCOLN 133 Court. Again this represents a species of atavism — that is, of recurrence to the ways of thought of remote barbarian an- cestors. Savages do not like an independent and upright judiciary. They want the judge to decide their way, and if he does not, they want to behead him. The Populists experi- ence much the same emotions when they realize that the ju- diciary stands between them and plunder. Let US now examine what Lincoln said or wrote and try to determine whether he stood for the new or the old, for self-limited or for direct and unlimited democ- racy with especial reference to the two points of gov- ernment by representation and judicial independence. On one most memorable occasion Lincoln told the world what the government was for which the people whom he led were pouring out their treasure and offer- ing up their lives. I will not use my own words to de- scribe what he then said but those of an impartial English historian: One of them (these "beautiful cemeteries ")» on the field of Gettysburg, will be near to Anglo-Saxons for all time, because it inspired the famous two minutes' speech which is, perhaps, the most perfect example in our language of what such a speech on such an occasion should be.^ I will read to you the Gettysburg speech thus char- acterized by Sir Spencer Walpole. Only a portion relates to our subject, but that speech cannot be read iThe History of Twenty-five Years." By Sir Spencer Walpole. Vol. 11, p. 67. 134 THE DEMOCRACY OF ABRAHAM LINCOLN or repeated too often by Americans and there never has been a time since the hour of its utterance when it should be more reverently and thoughtfully pon- dered by all who love their country than in these d&js now passing over us. It was on the 19th of November, 1863, a little more than four months after the great battle, that Lincoln spoke as follows in dedicating the National Cemetery at Gettysburg: Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty, and dedicated to the proposition that all men are created free and equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as the final resting- place for those who here gave their lives that the nation might live. It is altogether fitting and proper that we should do this. But, in a larger sense, we cannot dedicate — we cannot con- secrate — we cannot hallow this ground. The brave men, living and dead, who struggled here have consecrated it far above our poor power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us, the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion; that we here highly resolve that these dead shall not have died in vain; that this nation, under God, shall have a new birth of freedom; and that government of the people, by the people, for the people shall not perish from the earth. THE DEMOCRACY OF ABRAHAM LINCOLN 135 The last sentence is the one which concerns us here. What government did he refer to in those closing lines as the one for which the soldiers died and to the preser- vation of which he asked his countrymen to dedicate themselves? It was the government of the United States. It could have been no other. His own title was President of the United States; the uniform which the soldiers wore and the flag they followed were the uniform and the flag of the United States of America. He defined this government to which he gave his life as a "government of the people, by the people and for the people." This famous definition, familiar in our mouths as household words, was applied to the government of the United States as created, estab- lished, and conducted by and under the Constitution adopted in 1789. With the exception of the three war amendments, and that just adopted establishing the income tax, it is the same Constitution and the same government to-day that it w^as in November, 1863. Lincoln thought it a popular government. He did not regard it as a government by a president, or by a congress, or by judges, but as a government of, by and for the people, and in his usual fashion he stated his proposition so clearly and with such finality that there is no escape from his meaning. We might w^ell be contented to stop here and, accepting Lincoln's definition, stand upon his broad assertion of the char- acter of our government and look with suspicion upon 136 THE DEMOCRACY OF ABRAHAM LINCOLN those who, in the name of the people, seek to tear down that Constitution which has given us what he declared to be, in the fullest sense, a government of the people. But it is neither necessary nor desirable to stop with the Gettysburg speech, for it is important to learn, if we can, in more detail what Lincoln thought of the limitations established by the Constitution with espe- cial reference to the principle of representation and the power of the courts. Veiy early in his career, when he was not yet twenty-seven years of age, he said in an address before the Young Men's Lyceum at Spring- field, Illinois, on January 27, 1837: We find ourselves under the government of a system of political institutions conducing more essentially to the ends of civil and religious liberty than any of which the history of former times tells us. . . . Theirs was the task (and nobly they performed it) to possess themselves, and through them- selves us, of this goodly land, and to uprear upon its hills and its valleys a political edifice of liberty and equal rights; 'tis ours only to transmit these — the former unprofaned by the foot of an invader, the later undecayed by the lapse of time and untorn by usurpation — to the latest generation that fate shall permit the world to know. . . . At what point, then, is the approach to danger to be ex- pected ? I answer: If it ever reach us, it must spring up among us; it cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of free- men we must live through all time, or die by suicide. In these sentences we see at once that the great style of the Gettysburg address and of the second THE DEMOCRACY OF ABRAHAM LINCOLN 137 inaugural is still undeveloped, that the power of ex- pression so remarkable in later years has not yet been found; but the conviction as to the character of our government, which attained its final form at Gettys- burg, is here and the closing words warning us that destruction of our government can come only from ourselves demand our attention now as insistently as when they were uttered by an obscure young man in Illinois looking far into the future only to be passed over unheeded by a careless world. Such then was Lincoln's belief in the character of our government at the outset of life and such it con- tinued to the end, as I shall show later. Upon the two particular points which we have now under considera- tion he had, owing to the circumstances of his time, a good deal to say about the courts and very little in express form about representative government, be- cause nobody in his day questioned the representative system. But representative government rests upon certain broad principles in regard to which Lincoln spoke clearly and decisively. The basic theory of representative government is that the representative body represents all the people, and that a majority of that body represents a majority of all the people. To the majority in Congress the power of action is committed, and it is so guarded as to exclude so far as human ingenuity can do it any opportunity for the control of the government by an organized minority 138 THE DEMOCRACY OF ABRAHAM LINCOLN either among the voters or their representatives. It is these very provisions for securing majority rule which have led to the development of such devices as the compulsory initiative and referendum in order that organized minorities may gain a power of control which they could not obtain under a purely representative government. Having thus established majority rule through the representative system, the framers of the Constitu- tion with their deep-rooted distrust of uncontrolled power anywhere, then proceeded to put limitations upon the power of the majority. They were well aware that a majority of the voters at any given moment did not necessarily represent the enduring will of the people. They knew equally well that in the end the real will of the people must be absolute, but they de- sired that there should be room for deliberation and for second thought and that the rights of minorities and of individuals should be so far as possible pro- tected and secured. Hence the famous limitations of the Constitution. I need not rehearse them all; the most vital are those embodied in the first ten amend- ments which constitute a bill of rights, the rights of men, or human rights, and any violation of those rights is forbidden to Congress and to the majority. As further restraints upon the majority they gave the executive a veto, which raised the necessary majority for action to two-thirds, while upon the courts they THE DEMOCRACY OF ABRAHAM LINCOLN 139 conferred, by implication, opportunity to declare, in specific cases, any law to be in violation of the general principles laid down by the Constitution. Upon this first point of the limitation upon the majority, whether of voters or representatives, which is the essence of our constitutional system of repre- sentation, Lincoln spoke in a manner which cannot be misunderstood. He said in the first inaugural: If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution — certainly would if such a right were a vital one. But such is not the case. All the vital rights of minorities and of individuals are so plainly assured to them by affirmations and negations, guarantees and prohibitions, in the Constitution, that controversies never arise concerning them. . . . A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Nothing could be clearer than these sentences. In Lincoln's opinion the violation of a vital constitutional right was moral justification for revolution, and the last sentence gives a definition of free and real popular government upon which it would be difficult indeed to improve. I have just said that one of the checks placed upon the power of the majority was the opportunity which of necessity devolved upon the courts to declare, when 140 THE DEMOCRACY OF ABRAHAM LINCOLN a specific case was brought before them, their opinion that the law involved in the suit was in violation of the Constitution. It is this judicial power, asserted by Marshall, which has led to the present move- ment to destroy the independence of the courts by subjecting the judges to the recall and their decisions to review at the ballot-box. On this point Lincoln spoke often and with great elaboration. He did so because the famous Dred Scott case was a very burning issue in the years immediately preceding the Civil War. If an opinion was ever delivered by a court which justified resistance to or an attack upon the judicial authority it was that one known by the name of a poor negro — Dred Scott. The opinion against which the conscience of men revolted did not decide the case. It was an obiter dictum. It was delivered solely for the purpose of settling a great political question by pronouncement from the Supreme Court. There was no disguise as to what was in- tended. Mr. Buchanan, informed as to what was coming after his arrival in Washington, announced in his inaugural that the question of slavery in the ter- ritories would soon be disposed of by the Supreme Court. The wise practice of the Supreme Court is to decline jurisdiction of political questions, holding that such questions belong solely to Congress and the executive. In this case the court deliberately travelled outside the record in order to speak upon a purely THE DEMOCRACY OF ABRAHAM LINCOLN 141 political question which then divided the whole coun- try. For such action there is no defence. Born of the passions of the slavery contest, the Dred Scott case stands in our history as a flagrant attempt by the Su- preme Court to usurp power. There has been noth- ing like it before or since. The lesson of that gigantic blunder was learned thoroughly and will never be for- gotten by the court at least. The attack upon the dictum of the court began with the masterly dissenting opinion of Mr. Justice Curtis, which wrecked Taney's argument both in the law and the facts. From the courtroom the attack spread over the country and the utterances of the chief justice were assailed with all the bitterness characteristic of that period and de- fended with equal fervor by those who supported slavery and who declared that a refusal to accept the decision was tantamount to treason. Lincoln, as one of the leaders of the new Republican party, was obliged to deal with it. He did so fully and thoroughly. All that he said deserves careful study, for there is no more admirable analysis of the powers of the courts and of the attitude which should be taken in regard to them. I shall make no excuse for quoting what he said, at length, and I may add that his utterances on this great question require neither explanation nor commentary from me or any one else. I will begin, however, with a protest against a bill for the reorganization of the judiciary, signed by Lincoln as a member of the II- 142 THE DEMOCRACY OF ABRAHAM LINCOLN linois Legislature. These resolutions, which Lincoln drafted/ show what his general views were as to the courts many years before the Dred Scott decision. The important portion of them runs as follows : For reasons thus presented, and for others no less apparent, the undersigned cannot assent to the passage of the bill, or permit it to become a law, without this evidence of their dis- approbation; and they now protest against the reorganization of the judiciary, because: (1) It violates the great principles of free government by subjecting the judiciary to the legislature. (2) It is a fatal blow at the independence of the judges and the constitutional term of their office. (3) It is a measure not asked for or wished for, by the people. (4) It will greatly in- crease the expense of our courts, or else greatly diminish their utility. (5) It will give our courts a political and partisan character, thereby impairing public confidence in their de- cisions. (6) It will impair our standing with other States and the world. . . . (Signed by thirty-five members, among whom was Abraham Lincoln.) It will be observed that the first two objections state in the strongest terms the principle of the independence of the judiciary, and declare that this great principle is violated by subjecting the judiciary to the legisla- ture, who were the representatives of the people. In this case it happened to be the legislature, but the principle is that the courts should not be subjected to any outside control or influence, whether that control comes from the executive, the legislature, or the voters. ^ Life of Lincoln, Hay and Nicolay, Vol. 1, p. 164. THE DEMOCRACY OF ABRAHAM LINCOLN 143 Holding these principles, Lincoln sixteen years later was brought face to face with the Dred Scott opinion, and this is how he dealt with it, a little more than three months after it was delivered, in a speech at Springfield, Illinois, on June 26, 1857: He (Senator Douglas) denounces all who question the cor- rectness of that decision, as offering violent resistance to it. But who resists it? Who has, in spite of the decision, declared Dred Scott free and resisted the authority of his master over him? Judicial decisions have two uses — first, to absolutely de- termine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called "precedents" and "author- ities." We believe as much as Judge Douglas (perhaps more) in obedience to, and respect for, the Judicial department of the government. We think its decisions on constitutional questions, when fully settled, should control not only the -particular cases de- cided, hut the general policy of the country, subject to he disturhed only hy amendments of the Constitution as provided in that in- strument itself. More than this would he revolution. But we think the Dred Scott decision is erroneous. We know the court that made it has often overruled its own decisions, and we shall do what we can to have it overrule this. We offer no resistance to it. Judicial decisions are of greater or less authority as precedents according to circumstances. That this should be so accords both with common sense and the customary understanding of the legal profession. If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation and with 144 THE DEMOCRACY OF ABRAHAM LINCOLN the steady practice of the departments throughout our his- tory and had been in no part based on assumed historical facts, which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed or reaffirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, not to acquiesce in it as a precedent. But when, as is true, we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country. Contrast these calm wordS; uttered under the great- est provocation, with the violent attacks now made on the courts for two or three decisions which are in no respect political and which are as nothing compared to the momentous issue involved in the Dred Scott case, where the freedom of human beings and the right of the people to decide upon slavery in the territories were at stake. There is not a proposition which is not stated with all Lincoln's unrivalled lucidity, and there is not the faintest suggestion of breaking down the power of the courts or of taking from them their inde- pendence. A year later, just before the great debate with Douglas, but when that debate had in reality begun, Lincoln at Chicago on July 10, 1858, again took up the Dred Scott case and spoke as follows: I have expressed heretofore, and I now repeat, my opposi- tion to the Dred Scott decision; but I should be allowed to THE DEMOCRACY OF ABRAHAM LINCOLN 145 state the nature of that opposition, and I ask your indulgence while I do so. What is fairly implied by the term Judge Douglas has used: "Resistance to the decision"? I do not re- sist it. If I wanted to take Dred Scott from his master, I would be interfering with property, and that terrible difficulty that Judge Douglas speaks of, of interfering with property, would arise. But I am doing no such thing as that; all that I am doing is refusing to obey it as a political rule. If I were in Congress, and a vote should come up on a question of whether slavery should be prohibited in a new territory, in spite of the Dred Scott decision, I would vote that it should. That is what I would do. Judge Douglas said last night that before the decision he might advance his opinion, and it might be contrary to the decision when it was made; but after it was made he would abide by it until it was reversed. Just so I We let this property abide by the decision, but we will try to reverse that decision. We will try to put it where Judge Douglas would not object, for he says he will obey it until it is reversed. Somebody has to reverse that decision since it is made ; and we mean to reverse it, and we mean to do it peaceably. What are the uses of decisions of courts? They have two uses. As rules of property they have two uses. First, they decide upon the question before the court. They decide in this case that Dred Scott is a slave. Nobody resists that. Not only that, but they say to everybody else that persons standing just as Dred Scott stands are as he is. That is, they say that when a question comes up upon another person, it will be so decided again, unless the court decides in another way, unless the court overrules its decision. Well, we mean to do what we can to have the court decide the other way. That is one thing we mean to try to do. Again, in a speech at Springfield, Illinois, on July 17, 1858, he said: 146 THE DEMOCRACY OF ABRAHAM LINCOLN Now as to the Dred Scott decision: for upon that he makes his last point at me. He boldly takes ground in favor of that decision. This is one-half the onslaught, and one-third of the entire plan of the campaign. I am opposed to that decision in a certain sense, but not in the sense which he puts on it. I say that in so far as it decided in favor of Dred Scott's master, and against Dred Scott and his family, I do not propose to dis- turb or resist the decision. I never have proposed to do any such thing. I think that in respect for judicial authority, my humble history would not suffer in comparison with that of Judge Douglas. He would have the citizens conform his vote to that decision; the member of Congress, his; the President, his use of the veto power. He would make it a rule of political action for the people and all the departments of the government. I would not. By re- sisting it as a political rule, I disturb no right of property, create no disorder, excite no mobs. In some notes for speeches, which the editors date October 1, 1858 (?), we find this fragment, which is of great interest because it shows how strongly Lincoln felt that the Dred Scott case could be dealt with, and set aside under the Constitution without amending that instrument or seeking to break down the inde- pendence of the courts. The note runs as follows: That burlesque upon judicial decisions, and slander and prof- anation upon the honored names and sacred history of re- publican America, must be overruled and expunged from the books of authority. To give the victory to the right, not bloody bullets, but peaceful ballots only are necessary. Thanks to our good old Constitution, and the organization under it, these alone are THE DEMOCRACY OF ABRAHAM LINCOLN 147 necessary. It only needs that every right-thinking man shall go to the polls, and without fear or prejudice vote as he thinks. Again, in the joint debate at Quincy, Illinois, on October 13, 1858, he said: We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free. We do not propose that, when any other one, or one thousand, shall be decided by that court to be slaves, we will in any violent way disturb the rights of property thus settled; but we nevertheless do oppose that decision as a political rule, which shall be binding on the voter to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision. We do not propose to be bound by it as a political rule in that way, because we think it lays the foundation not merely of enlarging and spreading out what we consider an evil, but it lays the foundation for spreading that evil into the States themselves. We propose so resisting it as to have it revised if we can, and a new judicial rule established upon this subject. I will add this : that if there be any man who does not believe that slavery is wrong in the three aspects which I have men- tioned, or in any one of them, that man is misplaced and ought to leave us. While, on the other hand, if there be any man in the Republican party who is impatient over the necessity spring- ing from its actual presence, and is impatient of the constitu- tional guarantees thrown around it, and would act in disregard of these, he too is misplaced, standing with us. He will find his place somewhere else; for we have a due regard, so far as we are capable of understanding them, for all these things. This, gentlemen, as well as I can give it, is a plain statement of our principles in all their enormity. 148 THE DEMOCRACY OF ABRAHAM LINCOLN He discussed the great question many times, but I will make only one more quotation, the passage in the first inaugural; where on the eve of secession and civil war he gave expression, every word weighed and meditated, to his opinions and intentions. On that solemn occasion he spoke thus of the courts: I do not forget the position, assumed by some, that con- stitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the govern- ment. And while it is obviously possible that such decisions may be erroneous in any given case, still the evil effect follow- ing it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by the de- cisions of the Supreme Court, the instant they are made, in ordinary litigation between the parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of the eminent tribunal. Nor is there in this view any assault upon the courts or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes. From these extracts we may see that Lincoln held that the courts had no right to lay down a rule of THE DEMOCRACY OF ABRAHAM LINCOLN 149 political action and that if they did so no one was bound by it. That now is, indeed, the position of the court itself. He said that no one should resist the decision in the Dred Scott case, but that it was the duty of all who beheved that doctrine contrary to freedom and to American principles to seek to have it overruled — not reviewed by the voters at the ballot- box, or changed by the recall of its authors, but simply overruled by the court itself. Again, no one will dis- sent. But beyond this he did not go. On the con- trary, be upheld the judicial authority within its proper domain, and there is no suggestion to be found, even under that bitter provocation, of any attempt to make the courts subservient to any outside power by any such device as a recall. Still less is there any thought of reversing the decision by a popular vote. On the contrary, at Quincy, speaking to a popular audience, he said, as you remember: We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free. There is no need to comment further upon the pas- sages which have just been quoted. It is enough for me to say that Lincoln's discussion of the Dred Scott case seems to me to contain the strongest arguments for an independent judiciary that can be found any- where. We may also be sure, I thmk, that Lincoln 150 THE DEMOCRACY OF ABRAHAM LINCOLN did not forget in his righteous indignation at the Dred Scott opinion that every slave who set foot on EngUsh soil became a free man by Lord Mansfield^s decision in Somersett's case (1772), or that slavery had been ended in Massachusetts by a decision of the Supreme Court of the State in 1783 under the sentence, that ^'all men are born free and equal," inserted in the con- stitution of that State for that precise purpose by John Lowell. Passing now from the particular to the general, let me by a few brief quotations show you what Lincoln thought of our government under the Constitution as a whole. In a speech at Columbus, Ohio, on Septem- ber 16, 1859, he said: I believe there is a genuine popular sovereignty. I think a definition of genuine popular sovereignty, in the abstract, would be about this: That each man shall do precisely as he pleases with himself, and with all those things which exclusively concern him. Applied to government, this principle would be, that a general government shall do all those things which per- tain to it, and all the local governments shall do precisely as they please in respect to those matters which exclusively con- cern them. I understand that this Government of the United States under which we live is based upon this principle; and I am misunderstood if it is supposed that I have any war to make upon that principle. In his address at Cooper Institute, in New York, on February 27, 1860, he said: THE DEMOCRACY OF ABRAHAM LINCOLN 151 Now, and here, let me guard a little against being misunder- stood. I do not mean to say we are bound to follow implicitly in whatever our fathers did. To do so would be to discard all the lights of current experience — to reject all progress, all im- provement. What I do say is that if we would supplant the opinions and policy of our fathers in any case, we should do so upon evidence so conclusive, and argument so clear, that even their great authority, fairly considered and weighed, cannot stand: and most surely not in a case whereof we ourselves de- clare they understood the question better than we. In his reply to the Mayor of Philadelphia, on Febru- ary 21, 1861, he spoke as follows: Your worthy mayor has expressed the wish, in which I join with him, that it were convenient for me to remain in your city long enough to consult your merchants and manufacturers ; or, as it were, to listen to those breathings rising within the conse- crated walls wherein the Constitution of the United States, and, I will add, the Declaration of Independence, were origi- nally framed and adopted. I assure you and your mayor that I had hoped on this occasion, and upon all occasions during my life, that I shall do nothing inconsistent with the teachings of these holy and most sacred walls. All my political warfare has been in favor of the teachings that came forth from these sacred walls. May my right hand forget its cunning and my tongue cleave to the roof of my mouth if ever I prove false to those teachings. So he spoke at the threshold of the great conflict. Listen to him now as he spoke three years later, with the war nearing its close and when the hand of fate could almost be heard knocking at his door. On 152 THE DEMOCRACY OF ABRAHAM LINCOLN August 18, 1864, in an address to the 164th Ohio Regi- ment, he said: We have, as all will agree, a free government, where every man has a right to be equal with every other man. In this great struggle, this form of government and every form of human right is endangered if our enemies succeed. There is more involved in this contest than is realized by every one. There is involved in this struggle the question whether your children and my children shall enjoy the privileges we have enjoyed. I say this in order to impress upon you, if you are not already so impressed, that no small matter should divert us from our great purpose. There may be some inequalities in the practical application of our system. It is fair that each man shall pay taxes in exact proportion to the value of his property; but if we should wait, before collecting a tax, to adjust the taxes upon each man in exact proportion with every other man, we should never col- lect any tax at all. There may be mistakes made sometimes; things may be done wrong, while the officers of the government do all they can to prevent mistakes. But I beg of you, as citizens of this great republic, not to let your minds be carried off from the great work we have before us. He said, on August 22, 1864, in his address to the 166th Ohio Regiment: It is not merely for to-day, but for all time to come, that we should perpetuate for our children's children that great and free government which we have enjoyed all our lives. I beg you to remember this, not merely for my sake, but for yours. I hap- pen, temporarily, to occupy this White House. I am a living witness that any one of your children may look to come here as my father's child has. It is in order that each one of you may THE DEMOCRACY OF ABRAHAM LINCOLN 153 have, through this free government which we have enjoyed, an open field and a fair chance for your industry, enterprise and inteUigence: that you may all have equal privileges in the race of life, with all its desirable human aspirations. It is for this the struggle should be maintained, that we may not lose our birthright -not only for one, but for two or three years. The nation is worth fighting for, to secure such an inestimable jewel. And on August 31, 1864, in an address to the 148th Ohio Regiment, he said: But this government must be preserved in spite of the acts of any man or set of men. It is worthy of your every effort Nowhere in the world is presented a government of so much liberty and equality. To the humblest and poorest amongst us are held out the highest privileges and positions. The present moment finds me at the White House, yet there is as good a chance for your children there as there was for my father's. With these noble words, uttered as the dark shadows of the past were fleeing away and the hght of the coming victory was beginning to shine upon him, let us leave him. As at Gettysburg, over the graves of the dead soldiers, he declared that the great battle had been fought in order that ^'government of the people, by the people, for the people'' should not perish from the earth, so now to the living soldiers he said that nowhere in the world was presented a '^ government of so much liberty and equality." Thus, at the close, just as at the beginning when he was a young man entirely un- 154 THE DEMOCRACY OF ABRAHAM LINCOLN known beyond the confines of his village, did he speak of the Government of the United States under the Constitution. Thus he described his conception of democracy, and that conception he found fulfilled in the Constitution of the United States and in the great principles of ordered freedom and guarded rights which are there embodied. There is one other point alluded to by Lincoln when he defined ^^ genuine popular government/' which does not directly concern the subject I have been discussing, but which is of quite equal importance and upon which I wish to say a few words in closing. The framers of the Constitution made one great contribution to the science of government, in the application of the prin- ciple of federation upon a scale and in a manner never before attempted. A large part of the Constitution is devoted to the arrangement and adjustment of the relations between the States and the general govern- ment. Upon the construction of those relations, as we all know, parties divided and our history largely turned for more than seventy years. The contest was between the rights of the States on the one hand and the powers of the central government on the other. The conflict culminated in the Civil War and in the effort of certain States to break up the Union. The result of the war was the preservation of the Union and the defeat of secession. But secession, or the separation of the States, is not the only way in which THE DEMOCRACY OF ABRAHAM LINCOLN 155 the Union can be destroyed. The other and no less effective method of destroying the Union is by the aboHtion of the States, which could be attained by reducing them to merely nominal divisions and taking from them those powers and duties reserved to them by the Constitution and which alone make them living organisms. The first danger ended forever at Ap- pomattox. The second is threatening us, and in no obscure fashion, to-day. The growth of the power of the central government, together with its constant assumption of new duties, is in a degree inevitable and, in a less degree, no doubt, desirable. But this in- evitable movement is always quite rapid enough and should be retarded rather than accelerated. It is not, however, to this tendency of development that I now refer, but to something much graver and which is in its nature absolutely destructive. There is a widespread agitation in favor of having Presidents nominated as party candidates, not by the people of the States, each State being allotted the num- ber of votes to which it is entitled by the number of party votes cast at a previous election, but by all the members of the party throughout the countiy without reference to State lines. It is further proposed, and a constitutional amendment with that object in view was pending in the Senate at the last session, to have the President elected by the votes of all the people instead of by the votes of the people of the States, each 156 THE DEMOCRACY OF ABRAHAM LINCOLN State having two votes as a State and additional votes based on population. An amendment to that effect , proposed as an addition to another constitutional amendment, was defeated in the Senate a few weeks ago by a narrow majority. A President so nominated and elected would not be the President of the United States, but of the American Republic, or President of the Americans, as Louis Napoleon was styled Emperor of the French, having been chosen by a universal plebiscite. Party prin- ciples, party organization, party responsibility, would all disappear. Perhaps in this connection it is not amiss to remember that, in a eulogy upon Henry Clay, delivered in the State House at Springfield, Illinois, on July 16, 1852, Lincoln said: A free people in times of peace and quiet — when pressed by no common danger — natm-ally divide into parties. At such times the man who is of neither party is not, cannot be, of any consequence. Mr. Clay, therefore, was of a party. As usual, in discussing any subject, he laid his un- erring finger upon a vital point. The destruction of parties and party organizations would reduce the un- organized voters, acting simply as individuals, to a condition of helplessness. We should no longer have great organizations, with declared principles and es- tablished traditions, which could be held to strict responsibility, but simply followers of certain chiefs. THE DEMOCRACY OF ABRAHAM LINCOLN 157 Those chiefs would be self-made, presidential candi- dates with personal manifestoes after the familiar fashion of South American dictators. But these objections, serious as they are, sink into insignificance when compared with the far graver results which lie behind these propositions. To nomi- nate and elect Presidents by a vote of the whole peo- ple, without reference to State lines, would be a step, and a long step, toward the extinction of the States. That would mean the enormous exaltation of the ex- ecutive power, to which all these movements for the destruction of the Constitution alike tend. The abolition or degradation of the States would mean a real imperiahsm and not the sham imperialism about which many excellent people were quite needlessly distressed when we took possession of certain islands after the Spanish War. We might continue to call our territorial divisions States, and their chief executive officers governors, but names are nothing and with the States stripped of all power they would be in reality provinces and their rulers prefects appointed in Wash- ington. The abolition of the States would mean the loss or the ruin of the great principle of local self-gov- ernment, which lies at the very root of free popular government and of true democracy. The States, within their limitations and in the exercise of their proper powers, are the sheet-anchor which keeps the ship of state from drifting helplessly upon the rocks of 158 THE DEMOCRACY OF ABRAHAM LINCOLN empire and of personal autocratic rule, where so many great nations have met untimely wreck. These are no imaginary dangers, no alarms conjured up to arrest improvement and advance. Actual meas- ures leading to the results I have described are being pressed and advocated. It is a less obvious, a slower, a more insidious way of destroying the Union of States than by open war, but if successful it is equally certain in its results. We should pause long and think well before we enter upon such changes as these, all the more perilous because they are demanded in the name of the people and look harmless, perhaps, to those who do not stop to consider them. We are confronted to-day with the gravest questions which the American people have been called upon to decide since 1860. I do not mean questions of social or economic policy, nor issues of war, or peace, or foreign relations. I mean questions now pressing upon us which involve the very fabric of our Constitution, under which freedom, order, and prosperity have gone with us hand in hand. It is a time for careful thought, a time to tear aside the veils of speech and come straight to the substance of things, to facts and prin- ciples. Let us not at a time like this and in the pres- ence of such questions, be the slaves of words and phrases. In the Book of Judges it is written: Then said they unto him, "Say now 'Shibboleth.'" And he said "Sibboleth": for he could not frame to pronounce it THE DEMOCRA.CY OF ABRAHAM LINCOLN 159 right. Then they took him and slew him at the passages of the Jordan. There has been too much of this of late, too much dependence on how loudly a man could shout certain words and how he pronounced the ''Shibboleth" which was proposed to him. Let us get away from words and phrases and come down to facts and deeds. Before we begin to revolutionize our Constitution and its principles, let us know well what that Constitution is, what it means, what it has accomphshed, and whither the changes so noisily urged will lead us. In his message to Congress on July 4, 1861, speaking of the officers of the regular army from the seceding States who had remained true to the government of the Union, Lincoln said: This is the patriotic instinct of the plain people. They understand, without an argument, that the destroying of the Government which was made by Washington means no good to them. I have faith that the people to-day feel as they did then. I am sure that when they shall understand whither they are being led they will know that to im- pair or to destroy the government which Washington made and Lincoln saved ''means no good to them." JOHN C. CALHOUN ' Mr. President, when the senior senator from South Carolina (Mr. Tillman), whose illness we all deplore, did me the honor to ask me to take part in the cere- monies connected with the reception of the statue of Mr. Calhoun, I was very much gratified by his request. In the years which preceded the Civil War South Carolina and Massachusetts represented more strongly, more extremely, perhaps, than any other States the opposing principles which were then in conflict. Now, when that period has drifted back into the quiet waters of histoiy, it seems particularly appropriate that Massachusetts should share in the recognition which we give to-day to the memory of the great senator from South Carolina. If I may be pardoned a personal word, it seems also fitting that I should have the privilege of speaking upon this occasion, for my own family were friends and followers in successive generations of Hamilton and Webster and Sumner. I was brought up in the doctrines and beliefs of the great Federalist, the great Whig, and the great Re- publican. It seems to me, I repeat, not unfitting that 1 Spoenh on the Acceptance of the Statue of John C. Calhoun de- livered in the Senate of the United States March 12, 1910. 160 JOHN C. CALHOUN 161 one so bred and taught should have the opportunity to speak here when we commemorate the distinguished statesman who, during the last twenty-five years of his life, represented with unrivalled ability those theories of government to which Hamilton, Webster, and Sumner were all opposed. From 1787 to 1865 the real history of the United States is to be found in the struggle between the forces of separatism and those of nationalism. Other issues and other questions during that period rose and fell, ab- sorbed the attention of the country, and passed out of sight, but the conflict between the nationahst spirit and the separatist spirit never ceased. There might be a lull in the battle, public interest might turn, as it fre- quently did, to other questions, but the deep-rooted, underlying contest was always there, and finally took possession of every passion and every thought, until it culminated at last in the appeal to arms. The de- velopment of the United States as a nation, in con- tradistinction to a league of States, falls naturally into four divisions. The first is covered by the ad- ministrations of Washington and Adams, when the government was founded by Washington and organ- ized by Hamilton, and when the broad lines of the policies by which its conduct was to be regulated were laid down. When Washington died the work of de- veloping the national power passed into the hands of another great Virginian, John Marshall, who, in the 162 JOHN C. CALHOUN cool retirement of the Supreme Court for thirty years, steadily and surely, but almost unnoticed at the mo- ment, converted the Constitution from an experi- ment in government, tottering upon the edge of the precipice which had engulfed the Confederation, into the charter of a nation. While he was engaged upon this work, to which he brought not only the genius of the lawyer and the jurist, but of the statesman as well, another movement went on outside the courtroom, which stimulated the national life to a degree only realized in after years, when men began to study the history of the time. By the Revolution we had separated ourselves from England and estabHshed nominally our political inde- pendence. But that political independence was only nominal. The colonial spirit still prevailed. During the two hundred years of colonial Hfe our fortunes had been determined by events in Europe. It was no mere metaphor which Pitt employed when he said he would "conquer America upon the plains of Ger- many," and the idea embodied in the words of the Great Commoner clung to us even after the adoption of the Constitution, for habits of thought, impalpa- ble as air, are very slow to change. The colonial spirit resisted Washington's neutrality policy when the French Revolution broke out, and as the j'^ears passed was still strong enough to hamper all our movements and force us to drift helplessly upon the stormy seas JOHN C. CALHOUN 163 of the Napoleonic wars. The result was that we were treated by France on one side and by England on the other in a manner which fills an American's heart with indignation and with shame even to read of it a hun- dred years afterward. And then in those days of humiliation there arose a group of young men, chiefly from the South and West, who made up their minds that this condition was unbearable; that they would assert the independence of the United States; that they would secure to her due recognition among the nations; and that rather than have the shameful con- ditions which then existed continue they would fight. They did not care much with whom they fought, but they intended to vindicate the right of the United States to live as a respected and self-respecting inde- pendent nation. Animated by this spirit, they plunged the country into war with England. They did not stop to make proper preparations; their legislation was often as violent as it was ineffective; the war was not a success on land, and was redeemed only by the victory at New Orleans and by the brilHant fighting of our little navy. On the face of the Treaty of Ghent it did not appear that we had gained a single one of the points for which we went to war, and yet the war party had really achieved a complete triumph. Through their determination to fight at any cost we were recog- nized at last as an independent nation, and, what was far more important, we had forever destroyed the colo- 164 JOHN C. CALHOUN nial idea that the pohtics and the peace of the United States were to veer hither and thither at the bidding of every breeze which blew from Europe. Such work could not have been done without a vigorous growth of the national spirit and of the national power, and the group of brilliant men who brought on the war were entirely conscious that in carrying out their policy they were stimulating the national — the Amer- ican — spirit to which they appealed. Chief among the leaders of that group of young men who were re- sponsible for the origin and conduct of the War of 1812 was John C. Calhoun, As the war, with its influences and results, sank back into the past, domestic questions took possession of the field, and the conflict between the separatist and na- tional forces which had been temporarily obscured forged again to the front, but under deeply altered con- ditions. When John Marshall died in 1835, his great work done, the cause which he had so long sustained had already entered upon its third period — the period of debate — and the task which had fallen from the failing hands of the great chief justice was taken up in another field by Daniel Webster, who for twenty years stood forth as the champion of the proposition not that the Constitution could make a nation but that, as a matter of fact, it had made a nation. Against him was Calhoun, and between the two was Henry Clay. The twenty years of debate which then en- JOHN C. CALHOUN 165 sued are known familiarly as the days of Clay, Web- ster, and Calhoun. The^ names of the Presidents who occupied the White House during most of that time have faded, and the era of debate in the history of the parliamentary struggle between the national and the separatist principles is not associated with them but with the great senators who made it illustrious. As the century passed its zenith all three died, closely associated in death as they had been in life. The compromise which Clay and Webster defended and of which Calhoun despaired was quickly wrecked in the years which followed, and then came war and the completion of the work begun by Washington, through the life and death of Abraham Lincoln and the sacri- fices and the tragedy of four years of civil war. / To have been, as Calhoun was, for forty years a chief / figure in that period of conflict and development — first a leader among the able men who asserted the reality of the national independence and established the place of the United States among the nations of the earth, and afterward the undisputed chief of those who barred the path of the national movement — impHes a man of remarkable powers both of mind and character. He ^ merits not only the serious consideration which history accords, but deserves also that we should honor his memory here, and, turning aside from affairs of the moment, should recall him and his work in order that we may understand what he was and what he meant. 166 JOHN C. CALHOUN He was pre-eminently a strong man, and strong men, ' leaders of mankind, who shape public thought and de- ^ cide public action, are very apt to exhibit in a high de- ^ gree the qualities of the race from which they spring. Calhoun came of a vigorous race and displayed the at- ' tributes, both moral and intellectual, which marked it, with unusual vividness and force. On both sides he was of Scotch descent. His name is a variant of the distinguished Scotch name Colquhoun. It was a place-name, assumed at the beginning of the tliirteenth century, when they came into possession of certain lands, by the noble family which was destined to bear it for many generations. Judged by the history of the knights who in long succession held the estates and the title, the Colquhouns or Calhouns, who spread and multiplied until they became a clan, were a very strong, very able, very tenacious stock. They had great need of all these qualities in order to maintain themselves in power, property, and position during the five hun- dred years which elapsed before the first Calhoun and the first Caldwell started on the migration which, after a brief pause in the north of Ireland, carried Patrick Calhoun and some of the Caldwells over the ocean to South Carolina. Both families were tj^ical of their race, for the Colquhouns are spoken of as a Gaelic clan, while the Caldwells were Lowlanders from the Solway. In order to understand these types we must go back for a moment into those dim, almost un- JOHN C. CALHOUN 167 charted, regions of history where the tribes of the Germanic forests may be discerned pouring down upon the wreck of the Roman Empire. When the succes- sive waves of Teutonic invasion broke upon Britam they swept up to the mountains of the North, driving the native Picts and Scots before them, and no part of their conquest was more thoroughly Danish and Saxon than the lowlands of Scotland. But the High- lander, who represented the survival of the Celts, and the Lowlander, who represented the invaders, were quickly welded together in a common hostility to their great and grasping neighbor of the South. The Celtic blood mingled with that of the descendants of the Teutonic tribes. They quarrelled, they fought side by side, they intermarried; they modified each other and gradually adopted each other's customs and habits of thought. We have but to read Rob Roy to learn that although the Highlander looked down upon the Lowlander as a trader and shopkeeper, and the Lowlander regarded the Highlander as wild and barbarous, the ties of blood and common suffering were strong between them and that they were all Scotchmen. It is a remarkable history, that of Scotland, one of the most remarkable in the annals of men. Shut up in that narrow region of mountain and of lake, a land of storm and cold and mist, with no natural resources except a meagre soil and a tempestuous sea to yield a hard- earned living; poor in this world's goods, few in number. 168 JOHN C. CALHOUN for six hundred years these hardy people maintained their independence against their powerful foe to the southward and only united with him at last upon equal terms. For six hundred years they kept their place among the nations, were the allies of France, were distinguished for their military virtues on the continent of Europe, and cherished a pride of race and country to which their deeds gave them an unclouded title. They did all these things, this little people, by hard fighting. For six himdred years they fought, sometimes in armies, sometimes in bands, always along the border, frequently among themselves. It was a terrible training. It did not tend to promote the amenities of life, but it gave slight chance of survival to the timid or the weak. It produced the men who fell with their king at Flodden. They could die there where they stood beneath the royal standard, but they could not be conquered. Those six centuries of bitter struggle for life and in- dependence, waged continuously against nature and man, not only made the Scotch formidable in battle and renowned in every camp in Europe, but they developed qualities of mind and character which became insep- arable from the race. For it was not merely by chang- ing blows that the Scotch maintained their national existence. Under the stress of all these centuries of trial they learned to be patient and persistent, with a fixity of purpose which never weakened, a tenacity JOHN C. CALHOUN 169 which never slackened, and a determination which never wavered. The Scotch intellect, passing through the same severe ordeal, as it was quickened, tempered, and sharpened, so it acquired a certain relentlessness in reasoning which it never lost. It emerged at last complete, vigorous, acute, and penetrating. With all these strong qualities of mind and character was joined an intensity of conviction which burned beneath the cool and calculating manner and of which the stern and unmoved exterior gave no sign, like the fire of a furnace, rarely flaming, but sending forth a fierce and lasting heat. To this somewhat rare combination we owe the proverbial phrase of the "perfervidum inge- nium Scotorum,'' an attribute little to be expected in a people so outwardly calm and self-contained. To them, in the struggle of life, could be applied the words in which Macaulay described CromwelFs army : "They marched to victory with the precision of ma- chines, while burning with the wildest fanaticism of Crusaders.^' After the union, under Queen Anne, peace came gradually to the long-distracted land, broken only by the Jacobite risings of 1715 and 1745, and then the Scotch intellect found its opportunity and began to flower. In the latter part of the eight- eenth and the first part of the nineteenth century Scotland gave to poetry Scott and Burns and Camp- bell; to history Himie and Robertson; to metaphysics Hamilton, Reid, and Stewart; to fiction Smollett and 170 JOHN C. CALHOUN the "Author of Waverley"; to political economy Adam Smith; and these are only the greatest luminaries in a firmament of stars. Edinburgh became one of the intellectual centres of western civilization, and the genius of Scotland was made famous in every field of thought and imagination. It was just at this time that John Caldwell Calhoun came upon the stage, for the Scotch intellect, trained and disciplined through the darkness and the conflicts of six hundred years, blos- somed in the New World, as in the Old, when once the long pressure was removed, when the sword needed no longer to be kept always unsheathed and men could sleep without the haunting fear that they might be awakened at any moment by the light of burning homesteads and the hoarse shouts of raiders from over the border whose path was ever marked by desolation and bloodshed. In the inadequate description which I have attempted of the Scotch character and intellect, slowly forged and welded and shaped by many stern, hard-fighting gener- i ations, I think I have set forth the mental and moral I qualities of Mr. Calhoun. He had an intellect of great strength, a keen and penetrating mind; he thought j deeply and he thought clearly; he was relentless in I reasoning and logic; he never retreated from a con- clusion to which his reasoning led. And with all this he had the characteristic quality of his race, the "per- fervidum ingenium,'' the intensity of conviction which JOHN C. CALHOUN 171 burned undimmed until his heart ceased to beat. Thus endowed by nature and equipped with as good an education as could then be obtained in the United States, Mr. Calhoun entered public life at the moment when the American people were smarting under the in- sults and humiliations heaped upon them by France and England, and were gropmg about for some issue from their troubles and some vindication of the national honor and independence. Calhoun and his friends, men like Henry Clay, and like Lowndes and Cheves, from his own State, came in on the wave of popular revolt against the conditions to which the country had been brought. Wavering diplomacy, gunboats on wheels, and even embargoes, which chiefly punished our own commerce, had ceased to appeal to them. They had the great advantage of knowing what they meant to do. They were determined to resist. Ify necessary, they intended to fight. They dragged their party, their reluctant President, and their divided country helplessly after them. The result was the War of 1812. With war came not only the appeal to the national spirit, which was only just waking into life, but the measures without which war cannot be carried on. The party which had opposed military and naval forces, public debts, tariffs, banks, and a strong central government now found themselves raising armies, equipping and building a navy, borrow- ing money, imposing high import duties, sustaining the 172 JOHN C. CALHOUN bank, and developing in all directions the powers of the government of the United States. The doctrines of strict construction, which had been the idols of the rul- ing party, looked far less attractive when invoked by New England against their own policies, and the Con- stitution, which Jefferson set aside, as he thought, to acquire Louisiana, became most elastic in the hands of those who had sought to draw its bands so tightly that the infant nation could hardly move its limbs. Mr. Calhoun, with his mind set on the accomplishment of the great purpose of freeing the United States from foreign aggression, and thus lifting it to its rightful place among the nations of the earth, did not shrink from the conclusions to which his purpose led. His mind was too clear and too rigidly logical to palter with or seek to veil the inevitable results of the policy he supported. As he wished the end, he was too virile, too honest in his mental processes, not to wish the means to that end. The war left a legacy of debts and bankruptcy, and in dealing with these problems it was Calhoun who reported the bill for a new Bank of the United States, who sustained the tariff of 1816, defended the policy of protection to manufactures, and advocated a comprehensive scheme of internal improvements. Then it was that he declared in the House on the 31st of Januaiy, 1816, when he reported the bill setting aside certain funds for internal improvements, after urging an increase of the army, that — JOHN C. CALHOUN 173 As to the species of preparation ... the navy most cer- tainly, in any point of view, occupies the first place. It is the most safe, most effectual, and cheapest mode of defence. In 1814 (Annals of Congress, p. 1965) he said in re- gard to manufactures that — He hoped at all times and under every policy they would be protected with due care. Two years later he returned to the subject as a part of his theory of the national defence and said: In regard to the question how far manufactures ought to be fostered, it is the duty of this country, as a means of defence, to encourage its domestic industry, more especially that part of it which provides the necessary materials for clothing and de- fence. . . . The question relating to manufactures must not depend on the abstract principle that industry, left to pursue its own course, will find in its own interests all the encourage- ment that is necessary. Laying the claims of manufacturers entirely out of view, on general principles, without regard to their interests, a certain encouragement should be extended, at least to our woollen and cotton manufactures. At the close of the same year, December 16, 1816 (Annals of Congress, 1816-17, pp. 853, 854), he said: Let it jiot be forgotten, jet it be forever kept in mind, that the extent of our republic exposes us to the greatest of all calamities, next to the loss of liberty, and even to that m its consequence — disunion. We are great, and rapidly — I was about to say fearfully - growing. This is our pride and danger, our weakness and our strength'. Little does he deserve to be 174 JOHN C. CALHOUN intrusted with the liberties of this people who does not raise ^ his mind to these truths. We are under the most imperious ob- ligation to counteract every tendency to disunion. . . . If ... we permit a low, sordid, selfish, and sectional spirit to take possession of this House, this happy scene will vanish. We will divide, and in its consequence will follow misery and despotism. A little more than a month later, broadening his theme, to which he constantly recurred, and speaking of internal improvements (February 4, 1817), he said: It is mainly urged that Congress can only apply the public money in execution of the enumerated powers. I am no ad- vocate for refined arguments on the Constitution. The in- strument was not intended as a thesis for the logician to exer- cise his ingenuity on. It ought to be construed with plain good sense; and what can be more express than the Constitu- tion on this point ? . . . If the framers had intended to limit the use of the money to the powers afterward enumerated and defined nothing could have been more easy than to have ex- pressed it plainly. . . . But suppose the Constitution to be silent; why should we be confined in the application of moneys to the enumerated powers ? There is nothing in the reason of the thing that I can perceive why it should be so restricted; and the habitual and uniform practice of the government co- incides with my opinion. ... In reply to this uniform course of legislation I expect it will be said that our Constitution is founded on positive and written principles and not on prece- dents. I do not deny the position, but I have introduced these instances to prove the uniform sense of Congress and the coun- try — for they have not been objected to — as to our powers; and surely they furnish better evidence of the true interpre- tation of the Constitution than the most refined and subtle JOHN C. CALHOUN 175 arguments. Let it not be argued that the construction for which I contend gives a dangerous extent to the powers of Congress. In this point of view I conceive it to be more safe than the opposite. By giving a reasonable extent to the money power it exempts us from the necessity of giving a strained and forced construction to the other enumerated powers. From the House of Representatives he passed to the Cabinet of President Monroe, where he served from 1817 to 1825 as secretary of war, showing high capac- ity as an administrator. He took the department avowedly as a reformer, for the lesson of our unreadi- ness and our lack of military preparation had been burned into his mind by the bitter experiences of the j War of 1812. The army was reduced by Congress dur- ing his tenure of office, but organization, discipline, and efficiency were all advanced by his well-directed efforts. In 1825 Mr. Calhoim was elected vice-president, and was re-elected four years later. In 1832 he re- signed the vice-presidency to become senator from South Carolina. His resignation, followed by his ac-"^^ ceptance of the senatorship, marks his pubhc separa- tion from the poHcies of his earlier years and the formal j devotion of his life to the cause of states rights and slavery. The real division had begun some years before he left the vice-presidency. His change of attitude culminated in his support of nullification and in his bitter quarrel with Jackson, which was all the more violent because they were of the same race and 176 JOHN C. CALHOUN were both possessed of equal strength of will and equal intensity of conviction. I have thus referred to the change in Mr. Calhoun's position solely because of its historical significance, marking, as it does, the beginning of a new epoch in the great conflict between the contending principles of na- tionalism and separatism. In his own day he was ac- cused of inconsistency, and the charge was urged and repelled with the heat usual to such disputes. Noth- ing, as a rule, is more futile or more utterly unimpor- tant than efforts to prove inconsistency. It is a favorite resort in debate, and it may therefore be sup- posed that it is considered effective in impressing the popular mind. Historically, it is a charge which has little weight unless conditions lend it an importance which is never inherent in the mere fact itself. If no man ever changed his opinions, if no one was open to the teachings of experience, human progress would be arrested and the world would stagnate in an intel- lectual lethargy. Inconsistency Emerson has de- clared to be the bugbear of weak minds, and this is entirely true of those who, dreading the accusation, shrink from adopting an opinion or a faith which they believe to be true, but to which they have formerly been opposed. Mr. Calhoun defined inconsistency long before the day when the charge was brought against him with that fine precision of thought which was so characteristic of all his utterances. JOHN C. CALHOUN 177 He said in the House in 1814: Men cannot go straight forward but must regard the ob- / I stacles which impede their course. Inconsistency consists in a j change of conduct when there is no change of circumstances * / which justify it. Tried by this accurate standard, Mr. Calhoun is as little to be criticised for his change of position as Mr. Webster for his altered attitude in regard to the system of protection. With the new conditions and new cir- cumstances both men changed on important questions of policy, and both were justified from their respective points of view in doing so. That Mr. Calhoun went further than Mr. Webster, changing not only as to a policy, but in his views of the Constitution and the structure of government, does not in the least affect the truth of the general proposition. The very meas- ures which he had once fostered and defended had brought into being a situation which he felt with un- erring prescience portended the destruction of the fundamental principles in which he believed and of a social and economic system which he thought vital to the safety and prosperity of the people whom he represented. The national force which he had helped j to strengthen, the central government which he had I so powerfully aided to build up, seemed to him to have become like the creation of Frankenstein, a monster which threatened to destroy its creators and all he , \ 178 JOHN C. CALHOUN personally held most dear. It was inevitable that he should strive with all his strength to stay the progress of what he thought would bring ruin to the system in which he believed. Once committed to this opinion, he was incapable of finding a half-way house where he could rest in peace or a compromise which he could accept with confidence. His reason carried him to the inevitable end which his inexorable logic demanded, and to that reason and that logic he was loyal with all the loyalty of strong conviction and an honest mind. There is no need to discuss either the sound- ness or the validity of the opinions he held. That is a question which has long since passed before the tri- bunal of history. All that concerns us to-day is to recall the manner in which Calhoun carried on his long struggle of twenty-five years in behalf of prin- ciples to which he was utterly devoted. He brought to the conflict remarkable mental and moral qual- ities, deep conviction, an iron will, a powerful mind, an unsparing logic, and reasoning powers of the highest order. Burr said that any one who went onto paper with Alexander Hamilton was lost. Any one who admitted Mr. Calhoun's premises was lost in like fashion. Once caught in the grasp of that penetrating and relentless intellect, there was no escape. You must go with it to the end. He fought his fight with unbending courage, asking no quarter and giving none. He flinched from no con- JOHN C. CALHOUN 179 elusion; he faced every result without change or con-, j cession. He had no fear of the opponents who met himi , ^f^ in debate. He felt assured in his own heart that h$ S could hold his own against all comers. But he must have known, for he was not a man who ever suffered from self-deception, that the enemies whom he could not overcome were beyond the range of argument and debate. The unconquerable foes were the powerful and silent forces of the time of which the great uprising of 1848 in behalf of political liberty was but a mani- festation. The world of civilized man was demanding a larger freedom, and slavery, economically unsound, was a survival and an anachronism. Even more for- midable was the movement for national unity, which was world-wide. It was stirring in Germany and was in active life in Italy. The principle of separatism, of particularism, was at war with the spirit of the time. The stars in their courses fought against Sisera, ancTv Calhoun, with his keen perceptions, must have known^ in his heart that he was defending his cause againstj hopeless odds. But he never blenched and his gallantj spirit never failed or yielded. When the crisis of 1850 came. Clay brought forward his last and most famous compromise, which was supported by Webster. The two Whig leaders were filled with dread as they contemplated the perils which at that moment men- aced the Union and were ready to go far on the road of concession. Calhoun, then nearing his death, had 180 JOHN C. CALHOUN no faith in the compromise. He saw with that clear- ness of vision which nothing could dim that in the exist- ing state of public thought, in the presence of the aspi- rations for freedom and national unity which then filled the minds of men throughout the world of western civi- lization, no compromise such as Clay proposed could possibly endure. He had his own plan, which he left as a legacy to his country. But his proposition was no compromise. It settled the question. It divided the country under the forms of law and made the national government only a government in name. The solution was complete, but it was impossible. Clay's compro- mise, as ever}^ one knows, was adopted. There was a brief lull, and then the mighty forces of the age swept it aside and pressed forward in their inevitable conflict. I think Calhoun understood all this, which is so plain now and was so hidden then, better than either of his great opponents. If they realized the situation as he did, they at all events did not admit it. Clay, with the sanguine courage which always characterized him, with the invincible hopefulness which never deserted him, gave his last years to his supreme effort to turn aside the menace of the time by a measure of mutual conces- sion. Webster sustained Clay, but with far less buoy- ancy of spirit or of hope. Thus, just sixty years ago, they all stood together for the last time, these three men who gave their names to an epoch in our history and who typified in themselves the tendencies of the JOHN C. CALHOUN 181 time. Before two years more had passed they had all three gone, and the curtain had fallen on that act of the great drama in which they had played the leading parts. It is a moment in our history which has al- ways seemed to me to possess an irresistible attraction. Not merely are the printed records, the speeches that were then made and the memoirs then written, of absorbing interest, but the men themselves not only filled but looked their parts, which is far from com- mon in the case of actors in the never-ending drama of humanity. They all look in their portraits as imag- ination tells us they should look, and I share the faith of Carlyle in the evidence of portraiture. Over the vigorous, angular, and far from handsome features of Henry Clay is spread that air of serenity and of cheer- fulness which was one among the many qualities which so drew to him the fervent affection of thousands of men. We can reahze, as we study his portrait, the fascination which attracted people to him, the charm which enabled him, as one of his admirers said: "To cast off his friends as the huntsman his pack, For he knew when he pleased he could whistle them back." A gallant soul, an inspiring leader, a dashing, win- ning, impulsive nature, brilHant talents — I think one can see them all there in the face of Henry Clay. Turn to the latest portraits of Webster and Calhoun, and you pass into another world. They are two of 182 JOHN C. CALHOUN the most remarkable heads, two of the most striking, most compelling faces in the long annals of portraiture. They are widely different, so far as the outer semblance is concerned. The great leonine head of Webster, charged with physical and mental strength, the massive jaw, the eyes, as Carlyle said, glowing like dull an- thracite furnaces beneath the heavy brows, seem at the first glance to have no even remote resemblance to the haggard face of Calhoun, with the dark, piercing, yet sombre, eyes looking out from cavernous orbits, the high, intellectual forehead, the stern, strong mouth and jaw, all printed deep with the lines of suffering endured in silence. But if we look again and consider more deeply we can see that there is a likeness between them. The last photographs of Webster, the last por- traits of Calhoun, show us a certain strong re- semblance which is not, I think, the mere creation of a fancy bred by our knowledge of the time. Both are exceptionally powerful faces. In both great intellect, great force, and the pride of thought are apparent, and both are deeply tragic in their expression. It is not the tragedy of disappointment because they had failed to attain the office which was the goal of their ambition. That was the shallow explanation of excited contemporary judgment. Personal disappointment does not, and cannot, leave the expression we find in those two faces. There is a "listening fear in their regard''; not a personal fear — they were too great for that — JOHN C. CALHOUN 183 but a dread because they heard, as other men could not hear, the hand of Fate knocking at the door. The shadow of the coming woe fell darkly across their last years, and the tragedy which weighed them down was the tragedy of their country. It was thus that Web- ster looked when, in the 7th of March speech, in the great passage on "peaceable secession " he cried out in agony of spirit: What States are to secede? What is to remain American? What am I to be ? An American no longer ? Am I to become a sectional man, a local man, a separatist, with no country in common with the gentlemen who sit around me here, or who fill the other House of Congress ? Heaven forbid ! Where is the flag of the republic to remain? Where is the eagle still to tower ? Or is he to cower and shrink and fall to the ground ? However Webster and Calhoun disagreed, they both knew that the Union could not be lightly broken. They knew the disruption of the States would be a convul- y sion. They foresaw that it would bring war, the war which Webster predicted, and they both turned with dread from the vision which haunted them. J We catch the same note in the words of Calhoun on^ March 5, 1850, when he declared, "If I am judged by ' my acts, I trust I shall be found as firm a friend of the Union as any man within it.'^ Despite all he had^ said and done, he still clung to the Union he had( served so long, and when as the month closed and he ^ lay upon his deathbed the thought of the future, dark /" 184 JOHN C. CALHOUN ^ ' with menace, was still with him, and he was heard to mm-mur: "The South! The poor South! God knows what will become of her." ^ So they passed away, the three great senators, and the vast silent forces which moved mankind and set- tled the fate of nations marched forward to their pre- destined end. We do well to place here a statue of Calhoun. I would that he could stand with none but his peers about him and not elbowed and crowded by the tem- porarily notorious and the illustrious obscure. His statue is here of right. He was a really great man, one of the conspicuous figm-es of our history. In that ! history he stands out clear, distinct, commanding. There is no trace of the demagogue about him. He was a bold as well as a deep thinker, and he had to the full the courage of his convictions. The doctrines of socialism were as alien to him as the worship of "commercialism. He "raised his mind to truths." He believed that statesmanship must move on a high plane, and he could not conceive that mere money- / making and money-spending were the highest objects ^of ambition in the lives of men or nations. He was the greatest man South Carolina has given to the nation. That in itself is no slight praise, for from the days of the Laurenses, the Pinckneys, and the Rutledges, from the time of Moultrie and Sumter and Marion to the present day. South Carolina has always JOHN C. CALHOUN 185 been conspicuous in peace and war for the force, the ability, and the character of the men who have served her and given to her name its high distinction in our history. But Calhoun was much more even than this. He was one of the most remarkable men,, one of the keenest minds, that American public life can show. It matters not that before the last tribunal the ver- dict went against him, that the extreme doctrines to o<; BavdroLo. * There lay the Dog Argos, full of vermin. Yet even now when he was aware of Ulysses standing by, he wagged his tail and dropped both his ears, but nearer to his master he had not now strength to draw. * But upon Argos came the fate of black death. 282 DIVERSIONS OF A CONVALESCENT That is all. The recognition of the master when all others fail and then tlie death of the old dog. There is deep pathos in it, in the contrast between the loving instinct of the animal and the human forgetfulness of the absent. ^'I am as true as truth^s simplicity and simpler than the infancy of truth." We must turn to another great genius to find the phrase which exactly describes the imagination from which came forth the tales of the Odyssey. It so happened that a few weeks later the reviving convalescent read a book which contained a burlesque of Homer. The last sentence of this bit of humor may also have been intended to be comic or perhaps was written in the profoundest irony, but it seemed as if it was seriously meant. The author wished universities to understand what the classics really were: "only primitive literature; in the same class as primitive machinery and primitive music and primitive medi- cine." The convalescent wondered as he read this observation what the author meant by "primitive," for Homer^s men were much farther removed from primitive man in the scientific sense than we are from the men of the Ihad. The statement, however, al- though occurring at the end of a burlesque of Homer, referred to the classics generally. So the convalescent diverted himself by wondering whether the writer re- garded the authors of The Republic, The Politics, and the De Natura Rerum as "primitive men." The dis- DIVERSIONS OF A CONVALESCENT 283 tinction between intellectual power and mere knowl- edge of accumulated facts seemed in some way to have been lost sight of and the convalescent tried to think of the men of our own radiant civilization who in mere naked power of thought and intellect surpassed Plato and Aristotle and Lucretius. Their names did not at the moment occur to him, probably on account of his weakened condition. Most of all, the convales- cent marvelled at the queer theoiy that ''primitive" men should not be able to produce works of the imagina- tion because they were destitute of modern machinery. He had always thought that among so-called primitive people, in the dawn of civilization, the imagination was unusually strong, just as it is in a child compared with the grown man. This he had believed to be a truism and indeed he well knew that it was one of the "commonplaces, glorified" by Macaulay, to borrow Carlyle's phrase. Did not a genius greater even than Homer, he said to himself, touch the last scene of a royal tragedy with the bitter memory of a loved and faithless horse? Who can forget the effect produced by the thought of Roan Barbary upon the fallen and imprisoned king with sudden death lurking behind the arras ? The conversation with the groom is simple, commonplace almost, in expression, and yet it con- veys a sense of pathos and misery so poignant that it pierces the heart. Then, as the convalescent reflected still further upon the dog Ai'gos, there came to him the 284 DIVERSIONS OF A CONVALESCENT memoiy of a great actor moving crowded audiences to smiles and tears by saying in a quiet voice: "If my dog Schneider were here he would know me/' just as the rhapsodists moved the Greeks by repeating in noble verse the twice-told tale of Odysseus and his old hound. It seemed as if we, too, must be "primitive," or else that the poet who sang of Achilles's wrath touched a chord which always vibrates and had in all he wrote the quality of the eternal so long as human nature exists. Perhaps, after all, he was neither "primitive" nor modern, but simply a great genius. From Homer the convalescent's mind wandered happily and of its own accord to the poetry of his own language. He found himself trying to repeat verses which without any will of his own came fluttering into his mind. He was struck by the fact that those which came first were not from the poets of the nineteenth century, among whom are numbered some of the best- loved and most familiar, but were from the Elizabeth- ans, from the seventeenth-century poets, from the song-writers of the great period of English song, from the " bards sublime, Whose distant footsteps echo Through the corridors of Time." One of the very first, why he could not tell, was Ben Jonson's very familiar stanza: DIVERSIONS OF A CONVALESCENT 285 " It is not growing like a tree In bulk, doth make man better be; Or standing long an oak, three hundred year, To fall a log at last, dry, bald, and sere: A lily of a day Is fairer far in May, Although it fall and die that night — It was the plant and flower of Light. In small proportions we just beauties see; And in short measures life may perfect be." It is but one stanza in a poem of many stanzas not otherwise memorable. But as the convalescent re- peated to himself the well-known lines, known by heart for so many years, suddenly he seemed to see as he had seen in the familiar landscape spread before his eyes a new beauty and deeper meaning which he had never noticed before. In the lines he discovered, as he thought, a brief epitome of the Elizabethan genius. In the first and last verses were the aphorisms full of wisdom and reflection, condensed, concise, in which the Elizabethans so dehghted, and then in the middle flashed out the tender and exquisite image of the Uly, all compact of imaginative beauty. With unerring voice the poet touches that high note which they all in that day seemed able to do whenever they really tried, even in the midst of their extravagances and con- ceits and all the other faults and failings which were the ephemeral children of the fashion of the day. Scores of critics and lovers of poetry probably had observed 286 DIVERSIONS OF A CONVALESCENT all this before in these same verses, but it came to the convalescent as a discovery and he felt as much hap- piness as the "watcher of the skies" "When a new planet swims into his ken." This stanza of Ben Jonson happened to stray into his mind first, why he could not guess, but his thoughts ranging at will through the wide spaces of memory turned naturally and chiefly to Milton and Shakespeare, above all to the latter. Passages from Paradise Lost, from Lycidas, L' Allegro, II Penseroso, the Samson Agonistes, and the Comus, and lines from the sonnets, came unbidden in the silences of such a time. They were only fragments, but there was an endless pleasure in trying to recite them, to see how far the convalescent could go, and there was something infinitely soothing and satisfying in their noble beauty and in the mere perfection of the words and rhythm, for Milton is the greatest master of metrics in English and makes an appeal, possible only to the " Chief of organic numbers I Old scholar of the spheres ! Thy music never slumbers. But rolls about our ears Forever and forever !" Yet it was to Shakespeare, best known and best beloved, that the convalescent's mind turned most DIVERSIONS OF A CONVALESCENT 287 constantly. His words recurred unceasingly as the thoughts, effortless and unfettered, flitted here and there. Passages from the plays, entire sonnets, re- peated themselves to the convalescent, some over and over again, always with a sense of peace and deep con- tent. Famihar again as the sight of sea and rock and sky outside the window, they seemed now to be filled with beauties never seen and a music never heard be- fore. Kind hands had placed beside the bed the Golden Treasury and the Oxford Book of English Verse, and one day not long after the swift reduction to immobility had befallen the convalescent he stretched out his hand, took up the Golden Treasury, opened it at random, and read one Shakespeare sonnet. The physical act of reading those fourteen lines seemed a most remarkable and fatiguing feat at the moment, but once accomplished it filled some hours with pleasure as the convalescent gazed through yet another window at a sunset fire kindling the clouds, and quietly re- flected on what he had just read. The ability to read, after this first memorable experiment, came back more rapidly than any other, and in a little while it was possible to read many lines instead of only fourteen. In the Oxford Book of Verse Shakespeare's songs are printed together. The convalescent knew them all very intimately, but it so happened that he had never read them one after another in unbroken suc- cession, and the effect of doing so was a fresh impres- 288 DIVERSIONS OF A CONVALESCENT sion of the limitless quality of Shakespeare's genius. To write a song of the most perfect beauty when he happened to think that it would be well at that point to give ^'Jack" Wilson a chance to sing something seems to have been as easy to him as it is to the ''lark to trill all day." So easy to him and yet how rare and marvellous the art ! Swinburne says in his drastic way that English song-writing in the fine and true sense ended with Herrick. It sounds like an extreme statement and yet it is difiicult to controvert it. Poems, lyrics of highest beauty and splendor, touching every note in the gamut of emotions, we have had since then and in a rich abundance. But the lyrics or the poems of the first rank, which are also songs which sing themselves and lose no jot of their perfection, are sufficiently uncommon since the early seventeenth cen- tury, when it seemed as if every poet and dramatist had the power, either at some great moment, or like the master of them all at any moment, to sing when the fancy caught him. As the convalescent read and read again the Shakespearian songs one after another he found himself wondering how any being of ordinary intelligence could think that the same hand wrote, "The World^s a bubble, and the life of Man Less than a span"; and then, " Hark ! hark ! the lark at heaven's gate sings." DIVERSIONS OF A CONVALESCENT 289 Or if there be a faint doubt about The World, de- scribed as "Lord Verulam's elegant irapwhia of a Greek epigram/' is it conceivable that the man who wrote " That time of year thou mayst in me behold When yellow leaves, or none, or few, do hang Upon those boughs which shake against the cold, Bare ruined choirs, where late the sweet birds sang"; who gave us one of Matthew Arnold's great touch- stones of poetiy, "Absent thee from felicity awhile," could also have been guilty of such lines as: "O sing a new song to our God above; Avoid profane ones, 'tis for holy quire"; which are far below Addison's " Spacious firmament on high," and by no means up to the level of Doctor Watts? Internal evidence is notoriously untrustw^orthy; yet it is beyond belief that the same man could have written all these three poems or sets of verses. One can only repeat in despair the saying of Henry Labouchere: ''I am perfectly willing to admit that Bacon wrote Shake- speare's plays if they will only tell me who WTote the works of Bacon." But as the reader closed the book he reflected that 290 DIVERSIONS OF A CONVALESCENT after all it was less surprising that Shakespeare should have wiitten all these songs, scattered with prodigal hand here and there throughout the plays, than the fact that all the dramatists of that day could each and all apparently write a quite perfect song of great lyrical beauty at least once if they set themselves to do it. The convalescent ran over to himself the few he could easily call to mind. There was Webster, of whom nothing is known, but who wrote two powerful trage- dies which are still read and in which are touches worthy of the master. His dark and sinister genius, as we see it displayed in The Duchess of Malfi and Vittoria Corombona, seems as unfitted as possible for lyric poetry, and yet when the mood was on him he wrote the famous song, sad as one might expect from him, but full of tender feeling, which is called a "land dirge" and which begins: " Call for the robin-redbreast and the wren." Then the convalescent thought of Heywood, a second- rate man, his plays read only by students of the Elizabethan literature, and yet Heywood could write: " Pack, clouds, away, and welcome day, With night we banish sorrow"; a song worthy of a place in the Shakespearian group. The next that came to mind was Shirley, latest of the Elizabethan and Jacobean dramatists. His plays are DIVERSIONS OF A CONVALESCENT 291 not now read at all; it may be doubted if even the name of any one of them is remembered except by students of literature. Yet every one knows the lines, which are a familiar quotation, " Only the actions of the just Smell sweet, and blossom in their dust"; and these are by no means the best lines in a noble poem. In the quiet room the convalescent recalled gradually the whole of the lyric. Take as an exam- ple of its quality the opening Unes of the last stanza: "The garlands wither on your brow; Then boast no more your mighty deeds; Upon Death's purple altar now See where the victor- victim bleeds": There is the splendor of the great epoch in these lines and here we find it in this weak and forgotten playwright, the last of the great succession. Then, well beyond the end of the mighty line, memory de- clared that we could find an example of the great tra- dition stiU lingering in a man whose name is well known on account of a dim connection wth Shake- speare, whose plays are aU unread, who flourished in the years of decadence. Sir Wilham Davenant, and yet even then he could write a song worthy of the "spacious days": 292 DIVERSIONS OF A CONVALESCENT " The lark now leaves his wat'ry nest, And climbing shakes his dewy wings. He takes this window for the East, And to implore your light he sings — Awake, awake ! the Morn will never rise Till she can dress her beauty at your eyes." How the lines sing themselves! There rings in them the echo of the glorious days, of the days when the audiences at the "Theatre" or the ''Globe'' heard the boy sing to Mariana in the moated grange: " Take, O take those lips away. That so sweetly were forsworn; And those eyes, the break of day, Lights that do mislead the morn ! But my kisses bring again. Bring again; Seals of love, but seal'd in vain, Seal'din vain!"i The convalescent, of course, could not solve the prob- lem. Yet it was very pleasant to lie in the stillness and watch the gray mists, and wonder how these poets and dramatists managed to write such songs in those days long past, and why the art seemed to have been lost, and get no answer to the questioning but the sound of the musical lines softly chiming as they ran along the chords of memory. 1 This song, as is well known, occurs also in Fletcher's Bloody Brother, with a second and inferior stanza. I think every one must agree with Mr. Dyce that it is the work of Shakespeare, although the second stanza may well have been added by Fletcher. DIVERSIONS OF A CONVALESCENT 293 From the early poets one went easily on, when once started, to the much-loved poets of later days, begm- ning with the immortal group at the opemng of the nineteenth century. The songs of Shakespeare led naturally to the plays, not at first to the great tragedies but to the comedies, where one is borne away mto another world which never existed anywhere, and yet exists always and everywhere, a world filled with romance, with light and life and humor, broken here and there by the deep notes of tragedy, full of beauti- ful poetry and peopled with characters which can never grow old because they are as eternal as humanity with no touch of the fleeting fashion of a day about them The convalescent had loved them long and truly, but it seemed to him that he had never known them so well before, never reaUzed so fully what de- lightful companions they were, so much more real than any historical figures of men and women who had actually lived and wrought out their lives upon the earth to which long since they had returned. The physical ability to read indefinitely, by the hour together, came back rapidly, and with it the power of reading new books appeared. They could not take the place of those which had come first, of the poetry and imaginings among which memory and thought had so happily roamed and wandered. But these new books began to share the hours with the old. There was no poetry among them. The convalescent had expected 294 DIVERSIONS OF A CONVALESCENT no novels, for, although the new novels are countless, they suggest generally only Rogers's rule, "When I hear of a new book I take down an old one/' Of course the endless swarms which, like flights of brown-tailed moths upon a wall, flutter down in their myriads upon the book-stalls clad in gay paper covers, the chief in- citement to their sale, were out of the question. Even in robust strength the mind turns from them as it does instinctively from those of the "hundred thousand copies sold'' which are usually as quickly and irre- trievably forgotten within the next year as Pomfret's Choice, which sold its innumerable editions in the eighteenth century. Still more emphatically did the mind, sensitive and longmg for a happy content, turn from the morbid, the sordid, and above all from the solemnly moral novels with a purpose to which just now a passing notoriety is so readily accorded. Never- theless, from this unpromising field, unpromising per- haps owing to the reader's distaste for it, there came quite unexpectedly some stories by one author which not only amused but which brought with them the sense of new characters, created characters, with whom it was a pleasure to live for the brief hour while one read their adventures. When Biron in the midst of the pleasant fooling and jesting of Love's Labour's Lost says, " To move wild laughter in the throat of death ? It cannot be; it is impossible: Mirth cannot move a soul in agony," DIVERSIONS OF A CONVALESCENT 295 we suddenly hear the deep tragic note which was one day to become famihar to the world in Lear and Othello. But the task imposed by Rosalind does not go quite so far as Biron's interpretation would make it. She tells him that it must be his part " To enforce the pained impotent to smile." It is a difficult feat but it is not impossible, and the words of this the earliest, probably, of Shakespeare's charming women came freshly to his mind when the convalescent found himself laughing out loud as he read, quite alone, "George Ekmingham's " story of Spanish Gold. Merely as a story it has the romantic charm. The search for buried treasure always has an unfailing fascination and the scene of the book is laid most fittingly in a remote, unfrequented island among a people isolated from the world, not yet drilled into imiformity by civilization, and at once picturesque, humorous, and pathetic. Upon this stage the char- acters appear: all are real people; all in their degree entertaining and interesting. But there is one, who stands out as the hero, who is a genuine creation, so natural, so dehghtful, that we welcome him to that goodly company of friends whom we owe to human imagination, from whom we cannot be parted, and who are more really living than those who have actu- ally walked the patient earth. John Joseph Meldon is a being very much alive. To one very grateful 296 DIVERSIONS OF A CONVALESCENT reader under adverse circumstances he came as a jo}^, bringing laughter with him and leaving a strong feel- ing of personal affection behind him. He is again the hero in The Major's Niece, where he has all the fascination which he possesses in Spanish Gold, al- though the former story has not the romantic attrac- tion of the adventures in search of treasure to be found in the tale born of the Armada tradition. Doctor 0' Grady in General John Regan and Doctor AVhitty in the book that bears his name are variants of the Meldon type, but neither is quite equal to the original, although both are delightful persons. In the Red Hand of Ulster, beneath the easy humor and the kindly satire, runs a deeper purpose. In the picture of the resolved Ulstermen with their great fighting traditions, of their inability to resist the forces of the empire if really employed against them, and of the vacillations of the ministry and their unwillingness so to employ their equally reluctant army and navy, the truth of the Ulster situation seems to be very sharply depicted. But the predominant feeling in the mind of one solitary reader was that of gratitude to Canon Hannay for bestowing upon him the acquaintance, the friendship, and the conversation of J. J. Meldon. In one respect it is sad to confess this attractive person proved a traitor, for the tales of his exploits opened the door to other new books which were wel- comed by the regained power to read without limit, DIVERSIONS OF A CONVALESCENT 297 and the stories of real men who had Hved and toiled and vanished came in to share the hours which the poets and the dramatists had for many days monopo- lized. Instead of playing unfettered in the fields of memoiy and imagination, the thoughts came back to the world of facts and knowledge. The dream light in which the convalescent had been living so con- tentedly gave way to the daylight. The cares which infest the day and the habitual interests and pursuits began to show themselves and with insistent voices demanded a surcease of the neglect from which they had suffered and a renewal of the attention which they were wont to command. They would not be denied, these old occupations and duties, and, although there were still many tracts of time which went to books, new and old, to meditation on things which were of no practical use, and therefore peculiarly delightful, they asserted their mastery more and more until at last it was complete. After this there were no more roamings without plan or puipose in pleasant realms of memory and fancy, and the diversions of the con- valescent which had made him happy during so many motionless hours came to an end. RETURN MAIN CIRCULATION TO— ^ ALL BOOKS ARE SUBJECT TO RECALL RENEW BOOKS BY CALLING 642-3405 DUE AS STAMPED BELOW RECElvr^ ClF^-l./JT'GN'r-f T Dit^ f'f' ,- .. H-Cn BIOS ' APR 2 5 2006 ,"9 J >M FORM NO. DD6 UNIVERSITY OF CALIFORNIA, BERKELEY BERKELEY, CA 94720 LD 21A-60»i-7,'66 (G4427sl0)476B General Library University of California Berkeley M M GENERAL LIBRARY - U.C. BERKELEY IIP LD9-30m 3.'74(R0f BDDQ7b07M7 34r>278 ( UNIVERSITY OF CALIFORNIA LIBRARY