UCSB LIBRARY 

 
 The Federal Union and 
 the States 
 
 ADDRESS 
 
 OF 
 
 HON. COE I. CRAWFORD 
 
 BEFORE 
 
 THE LINCOLN ASSOCIATION 
 OF JERSEY CITY, N. J. 
 
 February 12, 1912
 
 The Federal Union and the States, 
 
 ADDRESS OF HON. COE I. CRAWFORD,, BEFORE THE 
 
 LINCOLN ASSOCIATION OF JERSEY CITY, N. J v 
 
 FEBRUARY 12, 1912. 
 
 In that most remarkable opinion written by 
 James Wilson, Associate Justice of the Supreme 
 Court of the United States, in which he gave the 
 reasons upon which the Court based its decision in 
 the case of Chisholm against the State of Georgia, 
 rendered in 1792, he said the real question before 
 the Court was : "Do the people of the United States 
 form a Nation?" He observes also that in all our 
 study of government we should not forget that it 
 is not the artificial persons called states, but it is 
 men who think, and speak, and act. He further ob- 
 serves that when Homer enumerates the other na- 
 tions of Greece, whose forces acted at the siege of 
 Troy, he arranges them under the names of their 
 different kings or princes ; but that he distinguished 
 the Athenians by always referring to them as The 
 People of Athens, and that Demosthenes stirred 
 his countrymen most when he began his orations 
 with the words: "O, Men of Athens!"
 
 The Constitution was ordained and established 
 by the People of the United States, as declared in 
 its preamble, and not by a group of artificial public 
 corporate bodies called states. James Wilson, look- 
 ing through these artificial structures, saw beyond 
 them and recognized that at the foundation of the 
 great super-structure were human beings men 
 and women with warm, human blood in their veins, 
 and that the government was of them, by them, 
 and for them. 
 
 He understood that the Constitution and laws 
 of the new republic were made for society and that 
 society was not to be sacrificed by a construction 
 which might follow the letter, but which would 
 destroy the spirit. At many points the great Char- 
 ter of our Government was the result of compro- 
 mise. The situation at the time of its making was 
 full of difficulty. The small states were jealous 
 of the large states. The slave states were jealous 
 of the free states. Many people in all the states 
 were jealous of centralized Federal power, while 
 the believers in a strong Federal Government were 
 jealous of the power of sovereignty claimed by the 
 individual states. These difficulties were adjusted 
 by concession and compromise. To win the sup- 
 port of the slave states that ill-fated clause was 
 adopted, under which representation in Congress 
 was apportioned according to population, ascer- 
 tained by adding to the whole number of free per- 
 sons three-fifths of the slaves ; also that other pro- 
 vision for the return of a fugitive slave to his
 
 owner. Thus recognized as a right of property by 
 the Constitution itself, slavery in all its worst 
 forms flourished in this land of liberty for more 
 than seventy years from 1789 to 1865, when the 
 thirteenth amendment was ratified. 
 
 The services of Abraham Lincoln to his own 
 and to future generations cannot be understood, 
 cannot be appreciated, without a study of the re- 
 lation which those services bear to the course and 
 current of American history during more than 
 seventy years of controversy and contention, dur- 
 ing which one party maintained that the Federal 
 Union was a mere league, which could be termi- 
 nated at any moment by the voluntary withdrawal 
 of one or more of the states, while another party 
 maintained that the Constitution was ordained by 
 the people of a Nation and that the union which 
 it created could not be dissolved except by force, 
 violence or revolution. It was, indeed, an angry 
 and bitter controversy, which soon became sec- 
 tional in character. Patrick Henry, Thomas 
 Jefferson, John C. Calhoun and Jefferson Davis 
 on one side; Hamilton, James Wilson, John Mar- 
 shall, Daniel Webster and Abraham Lincoln on 
 the opposing side; these and others, whom I can- 
 not take time to name here, are great figures 
 standing in the foreground of any picture which 
 truthfully represents that controversial and mo- 
 mentous period in the history of this Republic. 
 
 Although the question remained for so long a 
 time unsettled, we now see clearly that the attempt
 
 to establish a permanent Federal Union of the 
 states must have ended in utter failure within the 
 first two decades which followed the adoption of 
 the Constitution if the views so stubbornly urged 
 by Jefferson, Calhoun and Davis had found sanc- 
 tion in the decisions of the Supreme Court of the 
 United States. It was, indeed, fortunate that the 
 fathers established that court as a co-ordinate and 
 independent department of the Government and 
 made it the depository of its judicial power with 
 provision that the tenure of office held by the Fed- 
 eral judges should depend entirely upon good be- 
 havior and duration of human life ; because in those 
 earlier years of super-heated and angry debate and 
 division over questions relating to the power and 
 jurisdiction of the Supreme Court, in construing 
 statutes and provisions of the Constitution, to nul- 
 lify a statute, whether enacted by Congress or by 
 the Legislature of a state, whenever it clearly ap- 
 pears to the court that such statute is repugnant 
 to the Constitution, judges, whose tenure of office 
 depended upon public sentiment, would not have 
 dared to meet the storms of denunciation and crit- 
 icism and the howls of rage and bitterness which 
 Chief Justice Marshall encountered with calmness 
 and serenity after each of the great decisions by 
 which, with supreme courage and convincing logic 
 boldly expressed in clear and specific language, he 
 established the supremacy of the Constitution so 
 completely that nothing less than civil war could 
 hope to overthrow it. Or had they been equal to
 
 the great responsibility and decided as Marshall 
 did, such judges would have paid the penalty by 
 dismissal from office. Our fathers wanted an in- 
 dependent Judiciary. They created a system' of 
 government essentially different from that of 
 Great Britain from which they had so recently 
 declared their independence. In England there 
 was no federal union of states; no division of 
 powers; all power executive, legislative and judi- 
 cialwas vested in an omnipotent parliament; 
 there were no written constitutions, either state 
 or federal. The British constitution was a mass of 
 unwritten precedents and traditions, subject to 
 change by a simple act of parliament the result 
 of an appeal to the country. Executive ministers 
 and judges of courts were members of one or the 
 other of the houses of parliament and subject to 
 its supreme control. The whole fabric of British 
 government rested upon custom and practice not 
 defined nor limited by any written charter. It 
 was an evolutionary growth, described in this fash- 
 ion by Lord Macaulay : 
 
 "To think nothing of symmetry and much of 
 convenience; never to remove an anomaly 
 merely because it is an anomaly ; never to inno- 
 vate except so far as to get rid of the griev- 
 ance; never to lay down any proposition of 
 wider extent than the particular case for which 
 it is necessary to provide; these are the rules 
 which have, from the age of John to the age of 
 Victoria, guided the deliberations of our two 
 hundred and fifty parliaments."
 
 8 
 
 From that system of government by parliament 
 our fathers broke away and erected another, based 
 upon written constitutions underlying the several 
 states, and upon a written Constitution binding all 
 the states into a Federal Union a system which 
 divided the power of government into three sepa- 
 rate and specifically defined divisions, making of 
 each a distinct, separate and co-ordinate depart- 
 mentplacing limitations upon it and permitting 
 it to exercise no power except that expressly dele- 
 gated to it. They declared that this written Con- 
 stitution, ordained and established by the Amer- 
 ican people and the laws made in pursuance 
 thereof, and all treaties entered into by the United 
 States shall be "the supreme law of the land," 
 and that the judges in every state shall be bound 
 thereby, " anything in the Constitution or laws of 
 any state to the contrary notwithstanding. ' ' 
 
 They placed limitations upon the power of Con- 
 gress by prohibiting it from passing bills of at- 
 tainder or ex post facto laws ; from levying a duty 
 upon articles exported from any state ; from enact- 
 ing laws interfering with the free exercise of relig- 
 ion; from abridging freedom of speech or of the 
 press; from depriving any person of life, liberty 
 or property without due process of law; from in- 
 terfering with the right of the people peaceably to 
 assemble and to petition the Government for re- 
 dress of grievances. 
 
 They also placed prohibitions upon the states by 
 declaring that no state shall coin money or emit
 
 bills of credit ; or, without the consent of Congress, 
 lay any imposts or duties on imports or exports ; or 
 enter into any agreement or compact with another 
 state or with a foreign power. How were these 
 prohibitions to be made effective if not by the 
 courts? Yet in those earlier years a great many 
 people contended with much vehemence that the 
 courts had no power or authority to declare a leg- 
 islative enactment void even though that act were 
 clearly repugnant to the Constitution or to a treaty 
 of the United States with a foreign power. 
 
 Some people, even in our day, suggest that this 
 power be taken from the Supreme Court. They 
 apparently fail to realize that its withdrawal 
 would mean the dissolution of the Union. Mr. Jus- 
 tice Wilson and Chief Justice Marshall saw clear- 
 ly how necessary it was that the Supreme Court 
 firmly recognize the supremacy of the Constitu- 
 tion over legislative and executive, as well as judi- 
 cial action, if the United States was to become a 
 nation. Wilson took the first step when he an- 
 nounced the decision of the court in the great case 
 of Chisholm against the State of Georgia. Mar- 
 shall completed the work so well begun by Wilson 
 when, in a series of ever-memorable decisions, he 
 declared in behalf of the court that an act of Con- 
 gress or an act of the Legislature f a state, or a 
 decision of the highest judicial tribunal of a state 
 is void when clearly repugnant to the Federal Con- 
 stitution or to any treaty between the United 
 States and a foreign nation. Had the court failed
 
 10 
 
 to so decide any one of these three propositions in 
 favor of the supremacy of the Constitution and 
 treaties, the union of the states under that Consti- 
 tution would have gone down. Disunion would 
 have come while Abraham Lincoln was yet a bare- 
 footed boy in the woods of his native Kentucky; 
 but men can be found who will assert that John 
 Marshall was a usurper. Let us suppose for a 
 moment that the Supreme Court had played the 
 coward and quailing before the violent assaults 
 made upon it had declined to assume the great re- 
 sponsibility of upholding the paramountcy of the 
 Federal Constitution. What would have been the 
 result ? 
 
 The state of New York would have successfully 
 maintained exclusive control over navigation on 
 the Hudson and Federal control of commerce be- 
 tween the states would have been defeated. New 
 York could have closed her ports to New England 
 and imposed duties upon imports from New Jer- 
 sey and Pennsylvania ; Maryland could have taxed 
 the Bank of the United States and issued bills of 
 credit and coined money ; Rhode Island could have 
 successfully enacted a state bankruptcy law, by 
 which the obligations of contract could have been 
 annulled and debts legally repudiated; Virginia 
 and the Carolinas could have made agreements or 
 compacts with each other or with a foreign power. 
 On the other hand, Congress could have passed 
 laws levying duties upon articles exported from 
 one or more of the states ; or interfering with state
 
 11 
 
 autonomy ; or with the purely domestic affairs and 
 local police regulations of the states ; it might have 
 passed bills of attainder or ex post facto laws, or 
 laws which would deprive citizens of their lives, 
 liberties and property without due process; or 
 laws which would take away the power and de- 
 stroy the efficiency of the executive and judicial 
 departments. 
 
 In other words, had it not been for the check put 
 upon it by the Supreme Court in upholding the 
 spirit of the Constitution, Congress might have 
 usurped all governmental power. 
 
 These decisions made the Constitution a living in- 
 strument, expanding under the enlightened con- 
 struction of the court and keeping pace with the 
 needs of a growing nation. Otherwise it would 
 have been a mere idle declaration upon paper, such 
 as the constitution of Mexico is today ; or like those 
 paper constitutions of the French republic in the 
 days of the Revolution. Indeed, nothing less than 
 the exercise of this power by the Supreme Court 
 could have brought into harmonious relation all 
 these state laws, state constitutions and acts of 
 Congress. It is idle to talk about the British sys- 
 tem, in which parliament is above the courts. To 
 return to that system would be to abolish or aban- 
 don our own ; it would mean nothing less than rev- 
 olution and a wholesale destruction of the Ameri- 
 can scheme of federal government. The British 
 system may be better than ours I do not think so 
 but it is only the wildest and most impractical
 
 12 
 
 dreamer who would seriously propose such a revo- 
 lution, as the adoption of that system would cause 
 in our form of government, which depends so 
 largely upon the independence of the Judicial De- 
 partment as the check and balance between the 
 Executive and Legislative Departments, and which 
 provides the way by which to maintain the co-ordi- 
 nation of the states. Mr. Lincoln found ample jus- 
 tification for the use of force in preventing seced- 
 ing states from withdrawing from the Union in the 
 language of Chief Justice Marshall in Cohens 
 against Virginia, where the great jurist declares: 
 
 "It is usurpation whenever a part under- 
 takes to do what the whole cannot be kept from 
 doing. * * The people made the Constitu- 
 tion and they can unmake it, but this power 
 resides only in the whole body of the people, 
 not in any sub-division of them. The attempt 
 of any of the parts to exercise it is usurpation 
 and ought to be repelled by those to whom the 
 people have delegated their power." 
 
 This was a clear declaration in favor of the 
 power under the Constitution to coerce a state and 
 against the right of a state to secede from the 
 Union. Could the "recall of judges" have been 
 invoked against Mr. Marshall at that time of in- 
 tense feeling he would probably have been turned 
 out of office. 
 
 In contending for the independence and fear- 
 lessness of the Judiciary I do not wish to be mis-
 
 13 
 
 understood. There is much which calls for criti- 
 cism in the administration of our courts. There 
 are many defects in judicial procedure, both civil 
 and criminal, which all admit should be remedied. 
 While, as a rule, our judges have been and are men 
 of the highest integrity and honor, singularly free 
 from undue influence, there are exceptions, of 
 course, where, unfortunately, powerful and selfish 
 influences reach the judge and secure unfair ad- 
 vantage ; but such cases are rare. When the court 
 is a state tribunal and the term of the judge elec- 
 tive, the people can easily correct abuses if they 
 earnestly desire by reforming the judicial proced- 
 ure, shortening the term of the judges and refus- 
 ing to re-elect the unworthy ones. The remedy is 
 more difficult where the judge is a Federal officer 
 holding his position during life and good behavior, 
 and where he cannot be removed except by im- 
 peachment. The inferior Federal Courts, how- 
 ever, are creatures of statute. Except as to tenure 
 of office Congress can control them. It may, in its 
 discretion, abolish them or reduce their powers, or 
 limit their jurisdiction. The irritation and the 
 uneasiness of the people and their hostility to the 
 courts are directed largely against these inferior 
 Federal Courts ; and, should an amendment fixing 
 the term of the judges of these courts at a period 
 of six or ten years be proposed, it would, in my 
 humble opinion, be ratified by three-fourths of the 
 states, because of a prevailing opinion that some 
 of these Federal judges are too indifferent to the
 
 14 
 
 rights of the people and not sufficiently responsive 
 to present day needs and present day conditions 
 when passing upon issues between the people and 
 special interests. The fact that at the expiration 
 of a fixed term his conduct as a judge would come 
 under review by the President and the Senate, both 
 of them, when determining whether or not he 
 should be reappointed, acting under the scrutiny 
 and watchful eye of the public, would not destroy 
 his independence, but it would operate as a whole- 
 some restraint upon the judge, while the expira- 
 tion of his term would furnish the opportunity to 
 dispense with the service of an unworthy or incom- 
 petent man. I, for one, am inclined to believe that 
 an amendment of this kind would improve the Fed- 
 eral Judiciary. Congress has, perhaps, created too 
 many inferior courts and been too liberal in grant- 
 ing to them powers of injunction, particularly in 
 proceedings against the officers of a state attempt- 
 ing to enforce the statute of a state. It is a matter 
 of doubt whether the new Courts of Custom, of 
 Commerce and of Patents were wisely established. 
 These inferior and intermediate courts, anxious 
 to enlarge their jurisdiction by interfering fre- 
 quently with the orders and findings of adminis- 
 trative boards and commissions of the Govern- 
 ment, are often the means of delaying rather than 
 promoting justice; but Congress may abolish them 
 whenever in its wisdom it chooses t<> do so. Out* 
 courts and the administration of justice must com-
 
 15 
 
 mand the confidence and respect of the people if 
 the Government is to endure. 
 
 It behooves us to heed the complaints that are 
 being made on every hand in regard to glaring 
 defects in the civil and criminal procedure of both 
 the State and Federal Judiciary. Mere technicali- 
 ties; appeals based upon quibbles and taken for 
 delay ; unnecessary peremptory challenges of jur- 
 ors and immaterial objections to their competency ; 
 adherences to worn out precedents and ancient 
 rules, not adapted to needs of the present, must all 
 be swept away if our courts are to retain their hold 
 on the affections of the people. An effective and 
 speedy method, judicial in character, but more 
 simple and surer of results than proceedings by 
 impeachment should be provided by which bad and 
 unworthy judges may be dismissed from office. 
 But, on the other hand, let us beware that in our 
 eagerness to correct existing evils we do not adopt 
 methods exposed to far greater evils than those we 
 would remove. This, I fear, would be the case if 
 the Judiciary were subjected to what is known as 
 the recall, and should that " sword of Damocles" 
 be held over the heads of the judges. The honest 
 and fearless judge must often decide cases against 
 strong public prejudice and hostile public senti- 
 ment if he does his duty and applies the rules of 
 law and justice. The tenure of office held by him 
 should never be made to depend upon the decision 
 of the majority of the voters in his district ex- 
 pressed by ballot at the close of a heated campaign
 
 16 
 
 forced upon Mm by a minority petition signed ex 
 parte; a campaign in which the issue is whether 
 or not he correctly weighed the testimony and ap- 
 plied the law in causes tried by him. We should 
 commit a grave and serious error if we were to 
 adopt so questionable a remedy as that. We should 
 be equally unwise, in my judgment, if, because we 
 disagree with the conclusion reached by the Su- 
 preme Court of the United States that a certain 
 act of Congress is void because repugnant to the 
 Constitution, or because that court construed 
 some other act of Congress differently from the 
 way we would have construed it, we should deprive 
 the court of its power or greatly cripple its power 
 to declare those acts void which clearly violate the 
 provisions of the Constitution. It is a matter of 
 surprise that any reasonable and loyal citizen, of 
 the United States should propose the use of such 
 revolutionary and destructive weapons as these. 
 But suggestions of this kind are abroad in the land 
 and must be met with courage by all who oppose 
 them because they are dangerous and unsound. 
 Everyone concedes that the decisions of the court 
 should be and are open to the freest criticism. 
 Judges are human, and to err is human. The 
 judges as individuals are not entitled to special 
 favor. They have not been set apart as more sac- 
 red than other human beings. The effect of fair 
 and even sharp and merciless criticism of their de- 
 cisions is wholesome. There is, however, a wide 
 difference between free criticism of the courts and
 
 17 
 
 their decisions and the curtailment or destruction 
 of the independence and vital power vested in 
 them and necessary to the preservation of the 
 Government itself. Some people do not seem to 
 have discovered this truth. Abraham Lincoln crit- 
 icised Chief Justice Taney and the decision of the 
 Court in the Dred Scott case unsparingly, but no 
 man was more zealous than Mr. Lincoln in uphold- 
 ing each and every department of the Government 
 created by the Constitution and in the preserva- 
 tion of the Union established by it, or who more 
 firmly supported those canons of construction de- 
 clared by Chief Justice Marshall. It is sometimes 
 said that the Federal judges holding office for life 
 or during good behavior are not subject to the will 
 of the people, and that in our form of government 
 no public officer should be entrusted with power 
 who is not in some manner accountable to the peo- 
 ple. The Federal judges are accountable to the 
 people. The Constitution was ordained by the peo- 
 ple and it provides that his tenure of office shall 
 depend upon the good behavior of the judge and 
 that he may be impeached for wrong doing. This 
 makes him accountable to the people in the way 
 which they themselves have provided in a Consti- 
 tution which they ordained and established. So it 
 is not true to say that these judges are not account- 
 able to the people. If the method of procedure by 
 which a bad judge may be impeached is too diffi- 
 cult, a way has been provided by which to amend 
 that Constitution, and it should be resorted to for
 
 18 
 
 the purpose of adopting some easier and more ef- 
 fective method ; but it should be by judicial inquiry 
 and speedy trial with an opportunity to be heard 
 not a mere expression of public opinion after an 
 excited and spectacular campaign for votes. Mr. 
 Hamilton correctly observed that the Judiciary, 
 from the nature of its functions, will always be the 
 least dangerous to the political rights guaranteed 
 by the Constitution. He said: 
 
 "The Executive not only dispenses the hon- 
 ors but holds the sword of the community. The 
 Legislature not only commands the purse but 
 prescribes the rules by which the duties and 
 rights of every citizen are to be regulated. * * * 
 The Judiciary may be said to have neither 
 force nor will, but merely judgment. * * 
 Though individual oppression may now and 
 then proceed from the courts of justice, the 
 general liberty of the people can never be en- 
 dangered from that quarter ; I mean so long as 
 the Judiciary remains truly distinct from both 
 the Legislative and Executive." 
 
 Hamilton was right. Judges cannot take the 
 initiative; they cannot go into the forum and 
 advocate political doctrines as partisans, as execu- 
 tive and legislative officers are permitted to do. 
 
 When attacked in the public press and on the 
 platform by bitter partisans ; when their decisions 
 are assailed, the lips of the judges are closed. The 
 dignity of the judicial office does not permit them 
 to reply. They do not make issues; they decide
 
 19 
 
 only the questions that the parties before them 
 have raised. As Mr. Hamilton has said, they have 
 ''neither force nor will, but merely judgment." 
 The courts cannot go out and seek, nor can they 
 create controversies ; they can simply hear and de- 
 termine the issues brought before them and enter 
 judgment. The enforcement of their decrees and 
 writs follows because there is universal respect for 
 the majesty of the law; not because the courts com- 
 mand fleets and armies. When the authorities of 
 the state of Georgia refused to obey a writ of 
 habeas corpus in the case of the Cherokee Nation 
 against that State, President Jackson refused 
 the aid of the Executive Department and declared 
 that "John Marshall has made his decision; now 
 let him enforce it;" the Supreme Court of 
 the Unitecf States was powerless to proceed fur- 
 ther. Jackson, as the Chief Executive, held the 
 nation's sword and Congress controlled its purse; 
 without their co-operation the court could go no 
 further. 
 
 This fact in the history of the Supreme Court 
 proves how idle are the fears of those who mani- 
 fest concern lest the courts' endanger the liberties 
 of the people by an abuse of its power, and vindi- 
 cates the statement of Mr. Hamilton that the Judi- 
 ciary, from the nature of its functions, is the least 
 dangerous to the political rights guaranteed by the 
 Constitution. Congress, and not the Federal 
 courts, is to blame for the present situation in 
 which those courts have been placed in suits
 
 20 
 
 brought to enforce the Sherman Anti-Trust Act. 
 Without their seeking it, the burden and the duty 
 have been put upon these courts of not only dis- 
 solving vast combinations in restraint of 
 trade, such as the Standard Oil Company and the 
 American Tobacco Company, and of permanently 
 enjoining them from continuing in business, 
 and directing the division of their assets and the 
 distribution thereof to shareholders in the several 
 constituent and subsidiary corporations; but, in 
 addition, the almost impossible task and the enor- 
 mous responsibility have been put upon them of 
 supervising, reviewing, directing and consenting to 
 some proposed plan under which several smaller 
 concerns, owned chiefly by the same old stockhold- 
 ers, may severally and independently of each other 
 conduct the vast business theretofore conducted 
 by the unlawful combination. If the Government 
 is successful in the pending suits against the Har- 
 vester Trust and the Steel Trust the courts will 
 again be called upon to perform this task. It is 
 work which no court should be asked to do. It 
 properly belongs to some administrative tribunal. 
 The nature and character of the work make it 
 practically impossible for a court or judge to do 
 it. It is put upon the courts because Congress has 
 neglected to provide some other and more efficient 
 method of regulation and restraint in the conduct 
 of interstate business by corporations. The work 
 which should be done by an administrative tribu- 
 nal is forced upon the courts by the neglect of
 
 21 
 
 Congress to provide for such tribunal, and these 
 courts are unjustly criticised for doing the best 
 they can to render a service which, under no cir- 
 cumstances, should have been required of them. 
 But a more efficient remedy will be provided soon, 
 let us hope. The attention of the people is now 
 directed to this problem, and they will not fail to 
 find its solution. It is half solved when clearly 
 and correctly stated. The point aimed at is special 
 privilege. The American people have determined 
 to destroy that. They have determined that the 
 law shall not permit one class of citizens, as indi- 
 viduals or as corporations, to practice extortion or 
 lay excessive burdens upon other citizens and make 
 it harder for them to live; not only that the law 
 shall not permit this thing, but that it shall go fur- 
 ther and prevent this thing ; that those in charge of 
 the execution of the law shall enforce it. They 
 have determined that special privilege shall be de- 
 stroyed in this generation as slavery was destroyed 
 in the last generation ; that the wrongdoer, whether 
 he be a malefactor of great wealth or a dynamiter 
 pretending to represent organized labor, shall suf- 
 fer the pains and penalties of the law ; that special 
 privilege shall be destroyed under the Constitution 
 as it stands, or, if found necessary, that the Con- 
 stitution shall be amended so as to permit it to be 
 done. 
 
 In any event the die is cast. The people have 
 entered their decree. Because corporate wealth, 
 amassed under special privilege, was not bearing
 
 22 
 
 its share of the public burden Congress has already 
 imposed an excise tax upon its right to transact 
 interstate business, based upon net earnings. Be- 
 cause those who receive enormous incomes far be- 
 yond their needs and the needs of those dependent 
 upon them do not bear their share of the ex- 
 penses of maintaining the Government, and be- 
 cause that burden falls too heavily upon the man 
 of small means least able to bear it the people 
 will soon ratify the proposed amendment giving 
 clear and unquestioned power to Congress to levy 
 a tax upon incomes. The people are also deter- 
 mined that the transmission of great inheritances 
 shall be made to pay a toll to the Government un- 
 der whose protection they are accumulated, there 
 by removing to some extent the burden now borne 
 upon the backs of the poor. They are also deter- 
 mined that the general welfare, and not special in- 
 terests, shall be the governing motive in determin- 
 ing the amount which shall be raised by duties on 
 imports and the extent to which such duties shall 
 protect the American market place. 
 
 More and more it is becoming necessary to in- 
 voke the use of the powers granted by our Federal 
 Constitution to Congress in the solution of the 
 growing problems which arise in our complex in- 
 dustrial and commercial life. These problems can- 
 not be solved by the states because they are inter- 
 state problems. 
 
 Under modern conditions commerce knows no 
 state lines. Yet many of the states, by unwise and
 
 improvident statutes, have permitted the organi- 
 zation of companies which, without restraint by the 
 laws creating them, have proceeded to prey upon 
 the people in all the states through the avenues of 
 interstate commerce. They have allowed com- 
 panies to be organized for any sort of business 
 without reference to where it is to be carried on 
 and without any limitation upon the capitaliza- 
 tion ; the charters granted are perpetual or may be 
 renewed over and over again; consolidations and 
 mergers are permitted; ownership in the stock of 
 competing corporations may be acquired without 
 limit ; there is no requirement that any part of the 
 capital shall be paid before the corporation begins 
 business or afterwards; stock may be issued for 
 property and for service and labor, the value of 
 which may be arbitrarily fixed by the board of 
 directors; the meetings of directors and of stock- 
 holders may be held beyond the limits of the state ; 
 no official report to the state is required ; directors 
 are not required to be residents of the state, and 
 the same person may act as a director in two or 
 more companies engaged in the same kind of busi- 
 ness. 
 
 All the states do not grant all these privileges, 
 but most of them are permitted by the majority, 
 and none of them is prohibited in all. 
 
 It is under these lax state laws that trusts and 
 combinations are formed which seek to monopolize 
 and restrain trade and commerce between the 
 states. It is very clear that the only adequate rem-
 
 24 
 
 edy we can hope for must be obtained from the 
 Federal Government by the exercise of its power 
 to regulate commerce between the states. As the 
 Interstate Commerce Commission has brought the 
 railroads engaged in interstate commerce under 
 control so should an administrative commission of 
 the Federal Government bring all these industrial 
 and commercial concerns engaged in interstate 
 commerce under the control of the Federal Gov- 
 ernment. It should be complete and effective con- 
 trol based upon the firm purpose to protect the 
 American people from the unjust burdens of spe- 
 cial privilege and monopoly. Ours is a representa- 
 tive government. It is only representative in the 
 true sense when the agencies selected by the people 
 give expression to the well wrought out and temper- 
 ate conclusions of the people. The man in public life 
 who closes his ears to the appeals of the masses 
 and listens only to the demands of those who seek 
 for some personal and selfish advantage through 
 the agencies of the Government, is an enemy of 
 representative government. 
 
 It is to dislodge him that more effective meth- 
 ods of securing the execution of the popular will, 
 such as the direct primary, the initiative and the 
 referendum are devised; it is not for the purpose 
 of changing the Republic into a pure democracy, 
 but for the purpose of placing effective weapons of 
 defense against special privilege in the hands of the 
 people to be used when the emergency requires. As 
 a weapon in reserve to be used only when regularly
 
 25 
 
 chosen representatives have been guilty of a be- 
 trayal of their trust these innovations are a useful 
 and wholesome restraint. Back of them all are the 
 good sense and the permanent devotion of the 
 .American people to the principles of justice. The 
 spirit of Abraham Lincoln still lives. His name 
 will forever and always be the inspiration of all 
 who strive to keep this great Government close to 
 the people. For we all agree, my countrymen, that 
 among the great names which America has given 
 to the world no other is so deeply and so univer- 
 sally enshrined in the hearts and affections of the 
 people. No other human life has so touched that 
 humanity which is common to us all. It was a com- 
 bination of Burns and Franklin, of King Solomon 
 and David Crockett, of Isaiah and Tom Corwin, of 
 Wendell Phillips and Whitcomb Riley. The 
 pathos of his early childhood in that rude log 
 cabin where, we are told, "he slept on a heap of dry 
 leaves in the corner of the loft, to which ho mount- 
 ed by means of pegs driven into the wall," draws 
 thousands every year to that sacred spot . there to 
 weep in silence as they think of his mother dying 
 in that other Indiana cabin with a prayer for her 
 little boy in her heart when that little boy was only 
 nine years old. They know that while the home 
 was crude, and while those who dwelt there lived 
 very near to the heart of nature almost out of 
 doors under the blue sky, surrounded by the wild 
 woods it was a pure and wholesome place, sancti- 
 fied by the presence of the mother, Nancy Hanks
 
 26 
 
 Lincoln, and after she had gone by the presence of 
 the stepmother, Sallie Bush Lincoln both noble 
 pioneer women, who left upon the boy impressions 
 which remained during all his subsequent life. 
 Years afterward when the pathos of his mother's 
 life became known the world brought a glorious 
 wreath of flowers, and in tears of grateful remem- 
 brance placed it upon the long neglected grave of 
 Nancy Hanks Lincoln. 
 
 Americans rejoice in the fact that it was possible 
 for this lad, starting upon the pathway of life in 
 such an environment, to encounter and overcome 
 the great obstacles which he encountered and over- 
 came, and to make the long and toilsome journey 
 which he made in climbing to those sublime heights 
 upon which he stood when he delivered his second 
 inaugural address. 
 
 They look upon his victory as, in some way, their 
 own ; for was he not bone of their bone and flesh 
 of their flesh? 
 
 They cherish the hope that the conditions of life 
 in this Republic which is the hope of the world- 
 may remain so fair and just to all that it will con- 
 tinue to be as possible in the future as it has been 
 possible in the past for any sturdy youth to blaze 
 his way from the humblest to the highest station 
 in life. The fact that in America the opportunity 
 for such advancement is open to the humblest 
 child in the land has ever been our proud boast ; let 
 us devoutly pray that it may ever remain the dear- 
 est heritage we can leave to posterity. Equal op-
 
 27 
 
 portunity in the race of life is of far more value to 
 the youth of the country than great fortunes. 
 Equality of opportunity and equality before the 
 law: These must be preserved though all else be 
 lost ; to show what they are worth Abraham Lin- 
 coln lived; to secure them for all he devoted his 
 great life; for them he died the death of a mar- 
 tyr. The thirteenth amendment was his crowning 
 achievement; it removed the dark stain from the 
 Great Charter and closed forever that controversy 
 which began when James Wilson propounded the 
 question : Do the people of the United States form 
 a Nation?
 
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