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ADDRESSES 
 
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ADDRESSES 
 
 BY 
 
 LE BARON BRADFORD COLT 
 
 
 BOSTON 
 
 LITTLE, BROWN, AND COMPANY 
 
 1906 
 
Copyright, igo6y 
 By Le Baron Bradford Colt. 
 
 All rights reserved 
 Published March, 1906 
 
 r 
 
 
 THE UNIVERSITY PRESS, CAMBRIDGE, U.S.A. 
 
CONTENTS 
 
 Page 
 
 John Marshall i 
 
 Address at the Celebration by Brown University and 
 the Rhode Island Bar Association, February 4, 1901. 
 
 The Protection of the President of the United 
 
 States 45 
 
 Address before the Annual Meeting of the New Hamp- 
 shire Bar Association, Concord, March 3, 1902 
 
 Law AND Reasonableness 77 
 
 Address before the Annual Meeting of the American Bar 
 Association, Hot Springs, Virginia, August 27, 1903. 
 
 Contributions of Rhode Island to the Ameri- 
 can Union 109 
 
 Address at the Louisiana Purchase Exposition, St. Louis, 
 Missouri, Rhode Island Day, October 5, 1904. 
 
 America's Solution of the Problem of Govern- 
 ment 125 
 
 Address before the City Council and Citizens of Boston, 
 in Faneuil Hall, July 4, 1905. 
 
 M88558 
 
ILLUSTRATIONS 
 
 Le Baron Bradford Colt Frontispiece 
 
 John Marshall Facing page 30 
 
ADDRESSES 
 
 JOHN MARSHALL ;' '.v, i i.'.'V 
 
 Address before Brown University and the Members of the Rhode 
 Island Bar Association on the one hundredth anniversary of the 
 installation of John Marshall as Chief Justice of the United 
 States, delivered in Sayles Memorial Hall, Providence, on Feb- 
 ruary 4, 1 90 1. 
 
 Ladies and Gentlemen : 
 
 UPON the first meeting of the Supreme 
 Court of the United States in the city 
 of Washington, one hundred years ago 
 to-day, John Marshall took his seat as Chief Jus- 
 tice. This day has been appropriately called "John 
 Marshall Day," and it is a fitting time for the Bar 
 Associations, the Courts, and the representatives 
 of our seats of learning, assembled together, to re- 
 call the commanding and unique position the great 
 Chief Justice occupies in our constitutional history, 
 ■and to remind the people of the inestimable bless- 
 ings which have flowed from his judicial labors. It 
 is also fitting for the President of the great Federal 
 Commonwealth, which bears the indelible impress of 
 Jiis genius, to request the Congress to observe with 
 
2 ADDRESSES 
 
 appropriate exercises the centennial anniversary of 
 the day he became the head of the Supreme Court 
 and began his immortal work of upbuilding the 
 Constitution. 
 , \ : It MJS\ recently said with much truth : " John Mar» 
 '' 'Shall yet remains the great unlaurelled hero of early 
 '\\ ; 4\rti6riqaqi\l)i^tory." His work is not generally known 
 nor fully appreciated. Such is the common fate of 
 the highest judicial achievements. From their nature 
 they do not attract popular attention ; and yet a sim-^ 
 pie entry on the docket of the Supreme Court of the 
 United States may affect the destiny of the nation 
 more than Webster's reply to Hayne, or Dewey's vic- 
 tory in Manila Bay. We live under a government of 
 law. Our supreme law is embodied in a written Con- 
 stitution, and the judgments of the highest court on 
 constitutional questions may involve the very exist- 
 ence of the Federal Union. 
 
 The life of Marshall has been called the constitu- 
 tional history of the country from 1801 to 1835. He 
 set and fixed in its proper place the keystone of the 
 beautiful and symmetrical arch of States which now 
 spans a continent. He carried the Constitution 
 through its experimental and formative stages, de- 
 fined its enumerated powers, and clothed them with 
 an authority and living force commensurate with their 
 purpose. He " gradually unveiled " the Constitution, 
 in the words of Bryce, "till it stood revealed in the.- 
 
JOHN MARSHALL 3 
 
 harmonious perfection of the form which its framers 
 had designed." 
 
 We are to-day what the Constitution as ex- 
 pounded by John Marshall has made us. The 
 character and supremacy of the national government 
 we owe largely to him. Marshall was more than the 
 interpreter of the Constitution. He was the creator 
 of constitutional law as applied to a written Constitu- 
 tion. His luminous judgments determined whether 
 the Constitution should stand or fall. They proved 
 the Constitution created, in the words of Chief Justice 
 Chase, " an indestructible Union, composed of inde- 
 structible States." They demonstrated that a Federal 
 Union strong enough to perpetuate itself, and su- 
 preme within its delegated powers, was not a menace 
 to the independence of the States nor to individual 
 liberty, but was the guardian and shield of both. 
 They defined the relative rights of the States and the 
 Federal government under the Constitution, involv- 
 ing often the momentous question of sovereignty — 
 the fatal rock on which Federal Unions are broken 
 into fragments. They settled beyond challenge or 
 debate the question of sovereignty as a judicial ques- 
 tion arising under the Constitution. The only right 
 to dissolve the Union which remained with the States 
 after these adjudications was the right of revolution. 
 They established the novel and striking feature of our 
 political system that the construction and interpre- 
 
4 ADDRESSES 
 
 tation of the supreme law rests with the judiciary 
 department. They vindicated the supremacy of the 
 Constitution over all citizens and all States. They 
 proved beyond question that the Constitution created 
 a government, a composite republic, a nation; not a 
 league, a compact, or a mere confederacy. They un- 
 doubtedly preserved the Union in 1861, when the 
 attempt was made to settle constitutional questions 
 by force of arms. Had not the judgments of the Su- 
 preme Court, during the thirty-four years Marshall 
 was Chief Justice, established the supremacy of the 
 Constitution as opposed to the doctrine of State sov- 
 ereignty, the Civil War would have been a war of 
 conquest, and the Federal tie forever severed. " The 
 Southern Confederacy, as the embodiment of political 
 ideas," says Judge Phillips, " surrendered not to Grant, 
 not to Sherman, not to Thomas or to Sheridan, but to 
 the statesman, the jurist and sage, — John Marshall." 
 The decisions of Marshall have instilled in us the 
 worship of the Constitution. They have built up a 
 national spirit. They have not led to the consolida- 
 tion of the States, but to the consolidation of national 
 sentiment. They are the foundation of the patriot- 
 ism, affection, and pride which fill all our hearts 
 as we look upon our country at the opening of a 
 new century, and contemplate with emotion the proud 
 position she occupies among the nations of the earth. 
 They have elevated our form of government in the 
 
JOHN MARSHALL 5 
 
 eyes of the world, and disproved the judgment of man- 
 kind that a Federal Commonwealth is weak and un- 
 stable. They have shown that, in the hands of an 
 intelligent people, such a political system may exist 
 in a perfect form for centuries, that it may extend 
 over a vast area, peopled by different races, and may 
 realize under such conditions its high ideal of com- 
 bining the energy, patriotism, and freedom of a small 
 republic, with the unity, security, and power of a great 
 empire. Speaking of Marshall's decisions in an ad- 
 dress before the American Bar Association, Edward 
 J. Phelps declared : '* They passed, by universal con- 
 sent, and without any further criticism, into the fun- 
 damental law of the land, axioms of the law, no more 
 to be disputed. They have remained unchanged, un- 
 questioned, unchallenged. They will stand as long as 
 the Constitution stands. And if that should perish, 
 they will remain, to display to the world the principles 
 upon which it rose, and by the disregard of which it 
 fell." 
 
 Our national government was moulded and shaped 
 by the master hand of John Marshall. To compre- 
 hend the character and greatness of his work, it is 
 important to understand the nature and tendency of 
 the form of government which was organized under 
 the Constitution. Of all political systems a Federal 
 Commonwealth is the most complex, delicate, and 
 elaborate. It can only exist among a highly civil- 
 
6 ADDRESSES 
 
 ized people, who have been educated for generations 
 in the art of civil government. It is an ideal gov- 
 ernment. It is founded upon a compromise between 
 opposite political systems, and it seeks to combine 
 the advantages of each — the freedom of a small state 
 with the unity and security of a consolidated em- 
 pire. It is an artificial system; and, inherently, it 
 is perhaps the weakest known form of government. 
 Based on a division of sovereignty, it is a sover- 
 eign within sovereigns, a government within gov- 
 ernments, a single state in some things and many 
 states in other things, a unit in its external relations 
 and on matters which affect the general welfare, and 
 composed of many units in its internal government. 
 States and cities have repeatedly striven to realize 
 the Federal idea; but, with three oi four exceptions, 
 they have been successful only in an imperfect de- 
 gree, and for a comparatively short period of time. 
 The most illustrious exception is the United States. 
 History teaches what we should expect from the na- 
 ture and artificial character of its organization, — that 
 the ever impending danger to this political system 
 is not consolidation, but the weakness of the Federal 
 bond. The forces which tend to direct the States to- 
 wards the central union are less strong than the forces 
 which tend to drive them away from it, because the 
 ties of citizenship, local interests, and a common his- 
 tory bind the people to the State and its autonomy. 
 
JOHN MARSHALL 7 
 
 Federal unions have always perished from the weak- 
 ness of the Federal tie, or from conquest. They have 
 never grown into a consolidated state through the de- 
 struction of the separate members of the union. It 
 was the weakness of the Federal tie which constantly 
 threatened the disruption of the Achaian League. 
 And the same is true of the United Netherlands. 
 The Swiss Confederation has never suffered from the 
 strength of the central power, but rather from its 
 inborn weakness. The history of our own Federal 
 Union is familiar. We know that for three-quarters 
 of a century after the adoption of the Constitution the 
 grave peril, ever present, sometimes threatening, and 
 once only averted by civil war, was disunion, not con- 
 solidation. Historians have always recognized the in- 
 herent weakness of a Federal form of government. It 
 was not surprising, therefore, that in 1863 the emi- 
 nent English historian and scholar. Freeman, after 
 ten years of research and reflection on the subject, 
 should have begun the publication of a work entitled 
 " History of Federal Government from the Founda- 
 tion of the Achaian League to the Disruption of the 
 United States," in which he prophesied the exchange 
 of ambassadors between the United States and the 
 Confederate States before the year 1869. That Free- 
 man never completed his work, that his prophecy 
 proved false, was owing, in a large measure, to the 
 constitutional decisions of Chief Justice Marshall. 
 
8 ADDRESSES 
 
 Marshall's early conviction of the supreme danger 
 which confronted the Federal Union is stated by 
 Judge Story: " In his view the Republic is not des- 
 tined to perish, if it shall perish, by the overwhelming 
 power of the National Government, but by the resist- 
 ing and counteracting power of the State sovereign- 
 ties." Marshall met and overcame the danger by 
 incorporating into the fundamental law the great fact 
 that our Federal Constitution establishes a perpetual 
 government complete within itself. 
 
 Constitutions grow. They do not march alone. 
 National spirit is the product of growth. It is not 
 a sudden creation. A national constitution, to be 
 effective and fulfil the purpose for which it is de- 
 signed, must reflect the spirit and temper of the 
 people. The life of such a constitution is dependent 
 on the growth of a strong national sentiment. Our 
 Federal Constitution at the time of its adoption 
 was a creation. It did not represent a growth. 
 It was an experiment, a hope, a dream. The people 
 were full of apprehension and dire forebodings as 
 to the result. They saw the spectre of a " kingly 
 crown," the destruction of the States, the subversion 
 of their liberties. They had not grown up to the 
 national idea. Their spirit and temper, their laws 
 and governments, were colonial. Their interests and 
 affections, their habits, prejudices, and past history, 
 bound them to the States. The Colony or State 
 
JOHN MARSHALL 9 
 
 was their mother, the centre of their political life, and 
 to her they owed allegiance first of all. They were 
 citizens of Rhode Island, Massachusetts, Virginia, — 
 not American citizens. 
 
 Twelve years before Marshall took his seat, the 
 Constitution, in the words of John Quincy Adams, 
 had been " extorted from the grinding necessity of a 
 reluctant people." The popular vote was undoubt- 
 edly against its adoption. The spirit of the times 
 is well illustrated by Patrick Henry, who exclaimed 
 in the Virginia Convention of 1788, when speaking 
 of the framers of the Constitution: "Who author- 
 ized them to speak the language of * We^ the people^ 
 instead of * We, the States ' 1 States are the charac- 
 teristics and the soul of a confederation. If the 
 States be not the agents of this compact, it must be 
 one great, consolidated, national government, of the 
 people of all the States." It is seen in the adoption 
 of the Constitution by the narrow majority of three 
 in the New York Convention, ten in the Virginia 
 Convention, and nineteen in the Massachusetts Con- 
 vention, after the most strenuous labors of its advo- 
 cates, and under the pressure brought about by the 
 annihilation of public credit, the threatened paralysis 
 of commerce, and the impending dissolution of the 
 Confederation. It is manifested in bitterly denounc- 
 ing as unconstitutional abuses of power Washington's 
 proclamation of neutrality in 1793 on the outbreak 
 
10 ADDRESSES 
 
 of the war between England and the French Repub- 
 lic, and the ratification of Jay's treaty with England 
 in 1795. ^t is exhibited in the statute of the State 
 of Georgia inflicting the penalty of death on any 
 one who should presume to enforce the process of 
 the Supreme Court in the case of Chisholm v. State 
 of Georgia, where the State was held liable for the 
 payment of a private claim ; and in the case of the 
 United States v. Peters, where the Governor of Penn- 
 sylvania ordered out a brigade of militia to obstruct 
 the service of a Federal writ. 
 
 "Not a year went by," says McMaster, "but one 
 or more States bade defiance to the Federal govern- 
 ment." The Virginia and Kentucky resolutions of 
 1798 and 1799 also bear witness to the want of 
 national sentiment ; so, in like manner, the proposed 
 amendment to the Constitution submitted by John 
 Randolph : " The Judges of the Supreme Court and 
 all other Courts of the United States shall be re- 
 moved by the President on the joint address of both 
 houses of Congress." The same state of public feel- 
 ing is indicated in the popular revulsion against the 
 Federalists which soon swept that party out of power, 
 and later out of existence, and installed the opposition, 
 then known as the Republican party, thirty days after 
 Marshall became Chief Justice. 
 
 For thirty-four years Marshall's decisions vindi- 
 cated the necessity and value of the Constitution. 
 
JOHN MARSHALL 11 
 
 They incorporated the national idea into the funda- 
 mental law, and they have been a most potent factor 
 in the development and promotion of the intense 
 national spirit which now pervades the country. 
 
 Marshall's soul was filled with the spirit of the 
 Constitution, — the soul of the patriot and statesman 
 as well as jurist. He loved the Constitution. It 
 was his life. His judgment and affections bound 
 him to it. His great intellectual powers were de- 
 voted to it. He studied and mastered it. It was 
 his constant practice to read and re-read it. He 
 knew its scope and purpose, its strength and weak- 
 ness, its powers and limitations, its checks and 
 balances. He was with it at its creation. He had 
 stood by its cradle. He had followed its history. 
 He realized the struggles and sufferings which pre- 
 ceded its birth, and the ruin which was involved in 
 its fall. As he wrote those masterpieces of judicial 
 reasoning, there seems ever present to his mind the 
 beautiful and stately preamble : 
 
 "We, the people of the United States, in order 
 to form a more perfect union, establish justice, insure 
 domestic tranquillity, provide for the common defence, 
 promote the general welfare, and secure the blessings 
 of liberty to ourselves and our posterity, do ordain 
 and establish this Constitution for the United States 
 of America." 
 
 At the same time his thoughts must have carried 
 
12 ADDRESSES 
 
 him back to the struggles of the Revolutionary War 
 in which he participated, — to Brandywine, German- 
 town, and the blood-tracked snows of Valley Forge ; 
 to his efforts in the Virginia legislature to secure a 
 more efficient Federal government; to his exertions 
 in the convention of his own State in behalf of the 
 adoption of the Constitution; to his triumphant de- 
 fence of Washington's administration in the Virginia 
 legislature ; to the insults heaped upon the weakness 
 of his country by Talleyrand during his mission to 
 France; to his supreme effort at a critical time in 
 sustaining the rightful authority of the executive in 
 the Congress of 1799, — these and other great events 
 in which he took part must have crowded upon his 
 memory, animated his whole being, and deepened 
 his conviction that the Constitution should be inter- 
 preted in the spirit of the preamble, and so secure 
 to the people the blessings of liberty and a perpetual 
 Union. 
 
 The Constitution was the outcome of mutual con- 
 cessions and many compromises. It was offered to 
 the people of the several States for ratification as 
 the best result attainable. It was regarded by the 
 advocates of a strong Union as too weak, and by. 
 those of a weak Union as too strong. " Nobody 
 liked all its provisions, and everybody feared some of 
 them." It was adopted by its framers in a spirit of 
 harmony and patriotism, and lest their efforts might 
 
JOHN MARSHALL 13 
 
 prove fruitless. The general sentiment of the Con- 
 vention finds expression in the words of the vener- 
 able Franklin : " I agree to this Constitution with 
 all its faults — if they are such — because I think a 
 general government necessary for us. I consent to 
 this Constitution because I expect no better, and 
 because I am not sure it is not the best. The 
 opinions I have had of its errors I sacrifice to the 
 public good." 
 
 The wisdom, ripe experience, lofty patriotism, and 
 constructive powers of that remarkable body of men 
 who framed the Constitution, and the greatness of 
 their work, are universally recognized ; but it is 
 equally true that the instrument as it left their 
 hands was not a finished and complete work. The 
 Constitution is not merely the work of the framers, 
 says Mr. Bryce, "but the work of the judges, and 
 most of all of one man, the great Chief Justice 
 Marshall." It was designed as the framework of a 
 comparatively novel form of government, and not as 
 a complete code of laws. It was a skeleton, and 
 the heart and brain and nei-ves to make it a living 
 organism were in a large degree supplied by Mar- 
 shall's construction and interpretation. The powers 
 enumerated are brief. They are broad in scope and 
 expressed in general terms. Much was necessarily 
 left to implication, and much was designedly omit- 
 ted. This resulted from the jealousy of the States 
 
14 ADDRESSES 
 
 and the fear of consolidation or despotism. The 
 framers realized that if all the powers essential to 
 accomplish the great purposes of the instrument 
 had been fully set out it probably never would have 
 been ratified. Had the Constitution contained a pro- 
 vision that the Supreme Court should be the final 
 judge of the fundamental law and of its own juris- 
 diction, with the power to nullify an Act of Con- 
 gress or a State statute, its adoption would have 
 been extremely dpubtful. It was admitted at the 
 time that its success or failure depended upon its 
 construction. This was the great work which fell 
 to Marshall, and the saying is true : " He made of 
 us a nation by construction." 
 
 The fame of Marshall rests largely upon his judi- 
 cial judgments adjusting the relative powers of the 
 Federal government and the States, under the Con- 
 stitution. The settlement of these rights has always 
 been the battle-ground of Federal unions and a men- 
 ace to their perpetuity. It was this irrepressible 
 conflict which nearly wrecked the Confederation, 
 which divided the convention that framed the Con- 
 stitution, and constantly imperilled that instrument 
 after its adoption. The people under a Federal 
 system are always divided into two great political 
 parties: those who favor and those who oppose a 
 strong central authority ; those who believe such 
 authority is indispensable to the maintenance of a 
 
JOHN MARSHALL 15 
 
 permanent Union and free institutions, and those 
 who believe it dangerous to the rights of the States 
 and to individual liberty. Marshall referred to this 
 when he wrote : " The country was divided into two 
 great political parties, the one of which contem- 
 plated America as a nation, and labored incessantly 
 to invest the Federal head with powers competent 
 to the preservation of the Union; the other attached 
 itself to the State governments, viewed all the powers 
 of Congress with jealousy, and assented reluctantly 
 to measures which would enable the head to act 
 in any respect independently of the members." 
 Since it is the verdict of history that the danger 
 to the rights and independence of the States and to 
 the freedom of the people from the encroachments 
 of the central authority does not exist under a 
 Federal system, Marshall showed consummate wis- 
 dom and statesmanship in so adjusting by judicial 
 construction the relative powers of the Federal gov- 
 ernment and the States as to secure the supremacy 
 of the Constitution and a permanent Union. 
 
 The new government had been organized only a 
 short time when the momentous questions of consti- 
 tutional construction endangered its stability and 
 existence. 
 
 Did the Constitution establish a sovereign nation, 
 or a mere compact between sovereign States ? Is the 
 Federal government the final judge of the extent of 
 
16 ADDRESSES 
 
 the powers granted -under the Constitution? Is the 
 Supreme Court the sole judge of its own jurisdiction, 
 and is it authorized to declare what the supreme law 
 is? Did the Constitution establish an efficient and 
 permanent government, or is the Constitution, in the 
 words of Marshall, only "a solemn mockery," "a 
 magnificent structure, indeed, to look at, but totally 
 unfit for use"? Is it, as Pinkney exclaimed in 
 McCulloch V. Maryland, "a competent guardian of 
 all that is dear to us as a nation," or is it "a mere 
 phantom of political power, a pageant of mimic 
 sovereignty " ? 
 
 The supremacy of the Constitution was attacked in 
 many ways. It was insisted that the Constitution did 
 not destroy, as an ultimate question, the sovereignty 
 of the States. The Supreme Court is not the judge 
 of its own jurisdiction, because that would make it 
 sovereign. It might be a convenient agency in the 
 government, but it is inconsistent with the nature of 
 sovereignty that a sovereign State should submit to 
 its judgments. This would make the agent the mas- 
 ter, and the Supreme Court would become a menace 
 to the States. There exists no supervisory power in 
 the Supreme Court to revise the action of a sovereign 
 State. It has no right to nullify the legislative act of 
 a State. It has no power to declare void an Act of 
 Congress, because, under the Constitution, the govern- 
 ment is organized into co-ordinate departments of 
 
JOHN MARSHALL 17 
 
 equal authority. The powers expressly granted to 
 Congress and the prohibitions imposed on the States, 
 under the Constitution, should receive a strict con- 
 struction. The power of Congress to make all neces- 
 sary and proper laws to carry into effect the powers 
 granted by the Constitution should not be expanded 
 by implication to cover other powers not specifically 
 enumerated. 
 
 The answers to these and other contentions are 
 found in Marshall's decisions, and they are embraced 
 in certain fundamental conclusions: The Constitu- 
 tion organizes a government complete within itself. 
 It establishes a perpetual Union and is the guardian 
 of the rights of the people. For these great pur- 
 poses the powers conferred by that instrument are 
 sufficient. Under the Confederation the central 
 authority exerted its action upon sovereign States, 
 and they were not compelled to obey its mandates. 
 Under the Constitution the Federal powers are ex- 
 erted directly upon the people, and they establish 
 a government, as distinguished from a mere confed- 
 eration, with the usual powers of a government, and 
 organized into different departments. The Consti- 
 tution does not limit the exercise of Federal power 
 to strictly Federal subjects, but goes beyond, and 
 by its prohibitions upon the States shields the 
 personal rights of the individual. Sovereignty in 
 the United States resides in the people. It does 
 
18 ADDRESSES 
 
 not rest, as in England, with Parliament, or with 
 the sovereign ruler, as in many European countries. 
 The people have surrendered a portion of their 
 sovereignty in the form of a written Constitution, 
 and the people only can revoke, alter, or amend 
 their own supreme law. The national authority 
 is conferred and measured by the Federal Constitu- 
 tion, and " prescription cannot aid it, nor precedent 
 enlarge it.'* The Constitution is the supreme law 
 of the land, and as such is supreme over all citizens 
 and over State authority. The reserve powers of the 
 States cannot stay the operation of the supreme law. 
 
 The Union being perpetual, it cannot be dissolved 
 by a part of the States or by the people of those 
 States. The Federal government is the final judge 
 of the nature and extent of its powers under the 
 Constitution. The Supreme Court is the judge of 
 its own jurisdiction and of what the law is. It 
 may nullify an Act of Congress or of a State, and 
 it has a supervisory power over the judgments of 
 the highest courts of a State where a constitutional 
 question is involved. There are also implied powers 
 in the Constitution, and if the end be legitimate, the 
 means appropriate to that end, when not prohibited, 
 are constitutional, if within the spirit and scope cA 
 that instrument. 
 
 Such were some of the principles of construction 
 applied to the Constitution in Marshall's decisions, 
 
JOHN MARSHALL 19 
 
 which, for lucid and cogent reasoning, power of analy- 
 sis, comprehensiveness, and broad generalization, have 
 never been surpassed. They cover the great under- 
 lying problems of constitutional interpretation. They 
 deal with the questions of the powers granted to Con- 
 gress, the reserved powers of the States, and the 
 restrictions imposed upon the States by the ex- 
 pressed and implied powers of Congress. 
 
 Marbury v. Madison was one of Marshall's earlier 
 and most famous decisions. It was there held that 
 the Constitution is the supreme law, that an Act of 
 Congress repugnant thereto is void, and that the 
 Supreme Court is the final judge of the fundamental 
 law. 
 
 "The question," said the Chief Justice, "whether 
 an act repugnant to the Constitution can become the 
 law of the land is a question deeply interesting to the 
 United States. . . . That the people have an original 
 right to establish, for their future government, such 
 principles, as in their opinion, shall most conduce to 
 their own happiness, is the basis on which the whole 
 American fabric has been erected. . . . This original 
 and supreme will organizes the government, and as- 
 signs to different departments their respective powers. 
 . . . The Constitution is either a superior, paramount 
 law, unchangeable by ordinary means, or it is on a 
 level with ordinary legislative acts, and, like other 
 acts, is alterable when the legislature shall please to 
 
20 ADDRESSES 
 
 alter it. If the former part of the alternative be true, 
 then a legislative act contrary to the Constitution is 
 not law; if the latter part be true, then written con- 
 stitutions are absurd attempts, on the part of the 
 people, to limit a power in its own nature illimitable. 
 
 " Certainly all those who have framed written 
 constitutions contemplate them as forming the funda- 
 mental and paramount law of the nation, and, con- 
 sequently, the theory of every such government must 
 be, that an act of the legislature repugnant to the 
 Constitution is void. 
 
 " This theory is essentially attached to a written 
 constitution, and is consequently to be considered by 
 this Court as one of the fundamental principles of 
 our society. ... It is emphatically the province and 
 duty of the judicial department to say what the law 
 is. . . . This is of the very essence of judicial duty. 
 . . . Those then who controvert the principle that 
 the Constitution is to be considered in court as a 
 paramount law are reduced to the necessity of main- 
 taining that courts must close their eyes on the Con- 
 stitution, and see only the law. This doctrine would 
 subvert the very foundation of all written constitu- 
 tions. It would declare that an act which, according 
 to the principles and theory of our government, is 
 entirely void, is yet, in practice, completely obligatory. 
 It would declare that, if the legislature shall do what 
 is expressly forbidden, such act, notwithstanding the 
 
JOHN MARSHALL 21 
 
 express prohibition, is in reality effectual. ... It is 
 prescribing limits, and declaring that those limits may 
 be passed at pleasure. 
 
 " That it thus reduces to nothing what we have 
 deemed the greatest improvement on political insti- 
 tutions, a written Constitution, would of itself be 
 sufficient, in America, where written constitutions 
 have been viewed with so much reverence, for reject- 
 ing the construction." 
 
 It was by such unanswerable reasoning that Mar- 
 shall reached his conclusions. 
 
 In United States v. Peters^ where the question 
 arose of the power of a State by statute to disregard 
 a judgment of the Supreme Court, the Chief Justice 
 declared : 
 
 " If the legislatures of the several States may, at 
 will, annul the judgments of the courts of the United 
 States, and destroy the rights acquired under those 
 judgments, the Constitution itself becomes a solemn 
 mockery; and the nation is deprived of the means of 
 enforcing its laws by the instrumentality of its own 
 tribunals." 
 
 The power of the Supreme Court to review the 
 judgment of the highest court of a State, where a 
 constitutional question is involved, was affirmed in 
 Cohens v. Virginia. In his great opinion in that 
 case, the Chief Justice observed: 
 
 " The questions presented to the Court by the first 
 
22 ADDRESSES 
 
 two points made at the bar are of great magnitude, 
 and may be truly said vitally to affect the Union. 
 They exclude the inquiry whether the Constitution 
 and laws of the United States have been violated by 
 the judgment which the plaintiffs in error seek to re- 
 view; and maintain that, admitting such violation, it 
 is not in the power of the government to apply a cor- 
 rective. They maintain that the nation does not pos- 
 sess a department capable of restraining peaceably, 
 and by authority of law, any attempts which may be 
 made by a part, against the legitimate powers of the 
 whole; and that the government is reduced to the 
 alternative of submitting to such attempts, or of resist- 
 ing them by force. They maintain that the Constitu- 
 tion of the United States has provided no tribunal for 
 the final construction of itself or of the laws or trea- 
 ties of the nation ; but that this power may be exer- 
 cised, in the last resort, by the Courts of every State 
 in the Union. That the Constitution, laws, and trea- 
 ties may receive as many constructions as there are 
 States; and that this is not a mischief, or, if a mis- 
 chief, is irremediable. ... If such be the Constitu- 
 tion, it is the duty of the Court to bow with respectful 
 submission to its provisions. If such be not the 
 Constitution, it is equally the duty of the Court to 
 say so ; and to perform that task which the American 
 people have assigned to the judicial department." 
 After quoting Article 6 of the Constitution, which 
 
JOHN MARSHALL 23 
 
 declares that the Constitution, laws, and treaties shall 
 be the supreme law of the land, the opinion proceeds : 
 " This is the authoritative language of the American 
 people ; and, if the gentlem.en please, of the American 
 States. It marks, with lines too strong to be mis- 
 taken, the characteristic distinction between the gov- 
 ernment of the Union and those of the States. The 
 general government, though limited as to its objects, is 
 supreme with respect to those objects. This principle 
 is a part of the Constitution ; and if there be any who 
 deny its necessity, none can deny its authority. . . . 
 A Constitution is framed for ages to come, and is 
 designed to approach immortality as nearly as human 
 institutions can approach it. Its course cannot always 
 be tranquil. It is exposed to storms and tempests; 
 and its framers must be unwise statesmen, indeed, 
 if they have not provided it, as far as its nature will 
 permit, with the means of self-preservation from the 
 perils it may be destined to encounter. . . . The 
 people made the Constitution, and the people can 
 unmake it. It is the creature of their will, and lives 
 only by their will. But this supreme and irresistible 
 power to make or to unmake, resides only in the 
 whole body of the people ; not in any subdivision 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 of 
 repelling it." 
 
24 ADDRESSES 
 
 This opinion, which is tinged with patriotic emo- 
 tion, points out the primary and elemental principles 
 on which the Constitution rests. 
 
 McCulloch V. Maryland is a notable decision. The 
 case involved the power of the government to estab- 
 lish a bank, as an implied power under Article i, 
 Section 8, giving Congress power to make all neces- 
 sary and proper laws for carrying into execution 
 the powers vested by the Constitution in Congress 
 or in the government. The power was affirmed by 
 the Chief Justice. "We admit," he said, "and all 
 must admit, that the powers of the government are 
 limited, and that its limits are not to be transcended. 
 But we think the sound construction of the Consti- 
 tution must allow to the national legislature that 
 discretion, with respect to the means by which the 
 powers it confers are to be carried into execution, 
 which will enable that body to perform the high 
 duties assigned to it, in the manner most beneficial to 
 the people. Let the end be legitimate, let it be within 
 the scope of the Constitution, and all means which are 
 appropriate, which are plainly adapted to that end, 
 which are not prohibited, but consist with the letter 
 and spirit of the Constitution, are constitutional." 
 
 Another great question decided in that case related 
 to the power of a State to tax a bank established by 
 the government. On this point the Chief Justice 
 declared : 
 
JOHN MARSHALL 25 
 
 *' That the power to tax involves the power to 
 destroy; that the power to destroy may defeat and 
 render useless the power to create; that there is a 
 plain repugnance, in conferring on one government 
 a power to control the constitutional measures of 
 another, which other, with respect to those very 
 measures, is declared to be supreme over that which 
 exerts the control, are propositions not to be denied. 
 ... If the States may tax one instrument, employed 
 by the government in the execution of its powers, 
 they may tax any and every other instrument." 
 
 The necessity of uniform regulations of commerce 
 was the most powerful cause which led to the adop- 
 tion of the Constitution. The construction of the 
 commerce clause in that instrument came under con- 
 sideration in Gibbons v. Ogden, The State of New 
 York had granted to Fulton and Livingston the 
 exclusive right to navigate all the waters of New 
 York with vessels propelled by steam. This right 
 had been assigned to Ogden, the original plaintiff. 
 The highest court of New York had restrained the 
 original defendant. Gibbons, from navigating the 
 Hudson River with steamboats licensed under an 
 Act of Congress. The State law was held void. 
 " Commerce," said the Chief Justice, " undoubtedly, is 
 traffic, but it is something more: it is intercourse. 
 • . . All America understands, and has uniformly 
 understood, the word ' commerce ' to comprehend 
 
26 ADDRESSES 
 
 navigation. . . . The power over commerce, includ- 
 ing navigation, was one of the primary objects for 
 which the people of America adopted their govern- 
 ment, and must have been contemplated in forming 
 it. . . . This power, like all others vested in Con- 
 gress, is complete in itself, may be exercised to its 
 utmost extent, and acknowledges no limitations other 
 than are prescribed in the Constitution. . . . The 
 power of Congress, then, comprehends navigation 
 within the limits of every State in the Union ; so far 
 as that navigation may be, in any manner, connected 
 with * commerce with foreign nations, or among the 
 several States, or with the Indian tribes.' . . . 
 
 " Powerful and ingenious minds, taking, as pos- 
 tulates, that the powers expressly granted to the 
 government of the Union are to be contracted by 
 construction into the narrowest possible compass, 
 and that the original powers of the States are re- 
 tained, if any possible construction will retain them, 
 may, by a course of well digested but refined and 
 metaphysical reasoning, founded on these premises, 
 explain away the Constitution of our country, and 
 leave it a magnificent structure, indeed, to look at, 
 but totally unfit for use." 
 
 In Canter v. The American Insurance Company, 
 where the validity and effect of the treaty of 1 819, by 
 which Spain ceded Florida to the United States, was 
 before the Court, the Chief Justice said: "The Con- 
 
JOHN MARSHALL 27 
 
 stitution confers absolutely on the government of 
 the Union the powers of making war and of making 
 treaties ; consequently, that government possesses the 
 power of acquiring territory, either by conquest or by 
 treaty." 
 
 Marshall was not in favor of a narrow construction 
 of the Constitution, nor of an enlarged construction 
 beyond the natural meaning of the words. Upon this 
 general question he observed, in Gibbons v. Ogden : 
 
 "What do the gentlemen mean by a strict con- 
 struction ? If they contend only against that enlarged 
 construction which would extend words beyond their 
 natural and obvious import, we might question the 
 application of the term, but should not controvert the 
 principle. If they contend for that narrow construc- 
 tion which, in support of some theory not to be found 
 in the Constitution, would deny to the government 
 those powers which the words of the grant, as usually 
 understood, import, and which are consistent with the 
 general views and objects of the instrument ; for that 
 narrow construction which would cripple the govern- 
 ment, and render it unequal to the objects for which 
 it is declared to be instituted, and to which the powers 
 given, as fairly understood, render it competent ; then 
 we cannot perceive the propriety of this strict con- 
 struction, nor adopt it as the rule by which the Con- 
 stitution is to be expounded. . . . The enlightened 
 patriots who framed our Constitution, and the people 
 
28 ADDRESSES 
 
 who adopted it, must be understood to have employed 
 words in their natural sense, and to have intended 
 what they have said. If, from the imperfection of 
 human language, there should be serious doubts re- 
 specting the extent of any given power, it is a well 
 settled rule, that the objects for which it was given, 
 especially when those objects are expressed in the 
 instrument itself, should have great influence in the 
 construction." 
 
 This occasion will not permit a more extended 
 reference to Marshall's opinions. It is sufHcient to 
 observe that they constitute in a large measure the 
 judicial structure of the nation. 
 
 When we speak of the Supreme Court decisions on 
 constitutional questions as those of Marshall, we are 
 doing no injustice to the other members of the Court. 
 His master mind directed and governed that tribunal 
 on this subject. This was the verdict of his contem- 
 poraries. In dedicating his "Commentaries on the 
 Constitution" to Marshall, Judge Story wrote: " Other 
 judges have attained an elevated reputation by similar 
 labors in a single department of jurisprudence. But 
 in one department (it need scarcely be said that I 
 allude to that of constitutional law) the common 
 consent of your countrymen has admitted you stand 
 without a rival. Posterity will surely confirm by its 
 deliberate award what the present age has approved 
 as an act of undisputed justice." 
 
JOHN MARSHALL 29 
 
 Of the six decisions involving questions of consti- 
 tutional law from the organization of the Court in 
 1790 to Marshall's appointment in 1801, only two 
 were of grave importance. From 1801 to 1835, 
 covering the period Marshall was Chief Justice, 
 sixty-two decisions on constitutional questions w^ere 
 given, in thirty-six of which the opinion of the 
 Court was written by him. Although this was his 
 most important work, it comprises only a fraction 
 of his judicial labors. In the thirty volumes of 
 reports extending from the first of Cranch to and 
 including the ninth of Peters, there are eleven 
 hundred and six cases in which opinions were 
 filed, and five hundred and nineteen of these were 
 delivered by Marshall. These opinions cover ques- 
 tions on nearly every important branch of juris- 
 prudence. The case of Ogden v. Saunders was the 
 only case raising a constitutional question where 
 the majority of the Court differed from the Chief 
 Justice. 
 
 In the department of constitutional law, the field 
 was new. There were few precedents, because the 
 construction and declaration of the supreme law by 
 a j:ourt, under a written constitution, was unknown. 
 Marshall's only light was the inward light of reason. 
 He had *'no guides but the primal principles of 
 truth and justice." He does not cite a single 
 decision on the great constitutional questions deter- 
 
80 ADDRESSES 
 
 mined in Marbury v. Madison, Cohens v. Virginia^ 
 Sturges V. Crowninskield, McCulloch v. Maryland, 
 and Dartmouth College v. Woodward, Judge Story 
 said : " When I examine a question, I go from head- 
 land to headland, from case to case; Marshall has 
 a compass, puts out to sea, and goes directly to 
 his result." Tradition records (we will not say 
 truthfully) that when Marshall had finished reading 
 his great opinions, he would sometimes observe : 
 "These seem to me to be the conclusions to which 
 we are conducted by the reason and spirit of the 
 law. Brother Story will furnish the authorities." 
 
 Marshall's decisions are demonstrations founded 
 upon pure reason. They are chains of compact rea- 
 soning leading to inevitable conclusions. They are 
 almost devoid of illustration or analogy. They show 
 profound meditation and deep penetration. They 
 grapple with great underlying principles, and exclude 
 extraneous circumstances. In the words of a con- 
 temporary : " When we regard their originality, their 
 depth, their clearness, and their adamantine strength, 
 we look upon them as the highest efforts of the 
 human mind." Webster declared : " When Judge 
 Marshall says, 'It is admitted,' — Sir, I am preparing 
 for a bomb to burst over my head and demolish all 
 my points." After hearing Marshall deliver several 
 opinions, William Pinkney exclaimed : " He was born 
 to be the Chief Justice of any country in which he 
 
^Mfty^/iljSM^ .s4WS^^H»i kSaS^-ixt^im. "" "* 
 
JOHN MARSHALL 31 
 
 lived." And John Adams said that his gift of John 
 Marshall to the United States was the proudest act 
 of his life. 
 
 When Marshall, at the age of forty-five, was 
 appointed Chief Justice, he had been engaged in 
 the leading events of his time. His previous life 
 was a training and preparation for the high office 
 he then assumed. He was already distinguished as a 
 patriot, lawyer, legislator, statesman, and diplomatist; 
 and, soon after he became Chief Justice, his " Life 
 of Washington" was published. 
 
 Born on September 24, 1755, in Germantown, 
 Fauquier County, Virginia, his early youth was 
 passed in a sparsely settled country thirty miles 
 west, near the Blue Ridge Mountains. His father 
 was a friend and companion of Washington; a 
 colonel in the Revolutionary Army; a man of 
 marked courage and energy, and well read in the 
 English classics; and he was deeply interested in 
 the education of his children. 
 
 In his youth Marshall was fond of out-door 
 sports. He loved nature, and poetic longings filled 
 his soul. He early showed a taste for literature, 
 which he retained throughout his life. Two years* 
 instruction in Latin comprised his education, except 
 what was obtained at home. 
 
 When the storm of the Revolutionary War broke 
 upon the Colonies, the youthful spirit of Marshall 
 
32 ADDRESSES 
 
 burned with patriotic zeal. Abandoning his studies, 
 he formed a company. He was made lieutenant 
 and afterwards captain; and he remained with the 
 army, except for a short period, until the end of 
 the war. " He fought," says a recent writer, " at 
 the battles of Brandywine, Germantown, and Mon- 
 mouth. He was with Mad Anthony Wayne at 
 Stony Point. He was with Lighthorse Harry Lee 
 in the brilliant action at Paulus Hook. He suffered 
 hardships with the patriot army in the winter encamp- 
 ment upon the impregnable heights of Morristown. 
 He was with his great commander during the dreary 
 midnight of the Revolution at Valley Forge. In 
 all his military service he was steadfast, capable, and 
 valiant." 
 
 At the age of twenty-five, after attending a course 
 of lectures by Chancellor Wythe at William and 
 Mary College, Marshall was admitted to the bar, and 
 rose rapidly to eminence. The same qualities which 
 afterwards distinguished him as a judge marked his 
 career as a lawyer. Calmness, moderation, penetra- 
 tion, and mental grasp characterized his forensic ar- 
 guments. In describing Marshall's powers, William 
 Wirt declared that he possessed " one original and 
 almost supernatural faculty, — the faculty of devel- 
 oping a subject by a single glance of his mind, and 
 detecting at once the very point on which every 
 controversy depends. No matter what the question, 
 
JOHN MARSHALL 33 
 
 though ten times more knotty than the gnarled oak, 
 the lightning of heaven is not more rapid nor more 
 resistless than his astonishing penetration." It was 
 not long before he ranked first among the leaders 
 of the bar in his native State. The two volumes 
 by Washington of the cases adjudged in the Vir- 
 ginia Court of Appeals disclose his name as Counsel 
 in a large majority of the cases reported. 
 
 His professional reputation became national in 
 the celebrated case of Ware v. Hylton, known as 
 the English Debt case, which raised the question 
 whether, under the treaty of peace of 1783, British 
 creditors could recover debts sequestrated during 
 the Revolutionary War by act of the Virginia leg- 
 islature. The honor of the State and the fortunes 
 of many of its citizens were involved in the issue. 
 The case was argued before the Supreme Court in 
 Philadelphia in the winter of 1796. There were 
 engaged in it the most learned and eloquent mem- 
 bers of the Virginia bar, which at that time was said 
 to rank first in the country. Marshall appeared as 
 leading counsel for the defendants; and, although 
 on the losing side of the case, his masterly argu- 
 ment excited the admiration of the Court and the 
 bar. 
 
 Speaking of Marshall's effort, Wirt says: " Marshall 
 spoke, as he always does, to the judgment merely, 
 and for the simple purpose of convincing. Marshall 
 
 3 
 
84 ADDRESSES 
 
 was justly pronounced one of the greatest men of 
 the country. He was followed by crowds, looked 
 upon and courted with every evidence of admiration 
 and respect for the great powers of his mind. Mar- 
 shall's maxim seems always to have been, *Aim 
 exclusively at strength.'" 
 
 Marshall's career as a legislator was a school and 
 training for his great work of expounding the Consti- 
 tution. He was a member of the Virginia legislature 
 for several years following the close of the Revolution- 
 ary War and before the adoption of the Constitution 
 in 1789. Questions of the highest importance and 
 statesmanship occupied the attention of the legisla- 
 ture during this period. The Articles of Confedera- 
 tion had proved entirely inadequate for the purposes 
 of an efficient government. The requisitions of Con- 
 gress were ignored, and the disruption of the Confede- 
 ration was imminent. On all the important political 
 questions then pending before the legislature, Mar- 
 shall stood with Madison in pleading for a stronger 
 and more effective Federal union. The bitter and 
 cruel experience of the Colonies during these years 
 made a deep impression on his mind, which he could 
 not afterwards cast aside when called upon to deter- 
 mine the grave questions affecting the supremacy and 
 efficiency of the new Constitution. 
 
 Marshall was a delegate to the Virginia Conven- 
 tion of 1788, to which was submitted the question of. 
 
JOHN MARSHALL 35 
 
 the ratification of the Constitution. The Convention 
 was composed of the most eloquent and illustrious 
 body of men ever gathered together in the State. 
 Marshall and Madison, by their supreme exertions, 
 were hardly able to stem the fiery eloquence of Pat- 
 rick Henry and the powerful arguments of Grayson 
 and George Mason in opposition. In his forcible 
 speech of June lo, 1788, in reply to Patrick Henry, 
 Marshall answered the various objections urged 
 against the Constitution. He begins with a calm- 
 ness, moderation, and judicial temper which mark the 
 entire speech. " I conceive that the object of the 
 discussion now before us is whether democracy or 
 despotism be most eligible. I am sure that those 
 who framed the system submitted to our investigation, 
 and those who now support it, intend the establish- 
 ment and security of the former. The supporters of 
 the Constitution claim the title of being firm friends 
 of the liberty and the rights of mankind. They say 
 that they consider it as the best means of protecting 
 liberty. We, sir, idolize democracy. Those who op- 
 pose it have bestowed eulogiums on monarchy. We 
 prefer this system to any monarchy, because we are 
 convinced that it has a greater tendency to secure our 
 liberty and promote our happiness. We admire it, 
 because we think it a well-regulated democracy." 
 
 The acts of Washington's administration after 
 the new government was organized were bitterly 
 
36 ADDRESSES 
 
 denounced. The ratification of Jay's Treaty with 
 England in 1795 excited intense opposition. Con- 
 stitutional objections to the treaty were raised and 
 supported by powerful arguments. The memorable 
 speech of Marshall in the Virginia legislature, in de- 
 fence of the constitutional power of the executive to 
 negotiate commercial treaties, raised him into national 
 fame as a statesman, and placed him among the fore- 
 most leaders of the Federal Party. 
 
 As an indication of the popular feeling of the time, 
 it may be noticed that, upon the presentation in the 
 legislature of a resolution expressing confidence in 
 the " virtue, patriotism, and wisdom " of Washington, 
 a motion to strike out the word *' wisdom " was de- 
 feated by a bare majority. " Will it be believed," 
 exclaimed Marshall, " that the word was retained by a 
 very small majority.? A very small majority in the 
 legislature of Virginia acknowledged the wisdom of 
 General Washington." 
 
 It was about this time that Washington tendered 
 Marshall the office of Attorney-General and the mis- 
 sion to France, both of which he declined. 
 
 In consequence of Jay's Treaty with England, our 
 relations with the French Republic had reached a 
 critical stage; and, from a sense of patriotic duty, 
 Marshall finally accepted the appointment of Envoy 
 to France in conjunction with Pinckney and Gerry. 
 During this trying and humiliating mission the letters 
 
JOHN MARSHALL 37 
 
 addressed to Talleyrand defining and defending our 
 country's position have always been attributed to 
 Marshall's pen. They aroused the warmest praise, 
 and on his return in 1798 he received ovations in 
 New York and Philadelphia. 
 
 Upon resuming the practice of his profession in 
 Virginia, at the earnest solicitation of Washington, 
 who was filled with dark forebodings as to the future 
 of the country, Marshall became a candidate for Con- 
 gress, after declining a position on the Supreme Court 
 tendered him by President Adams. He was elected 
 in the spring of 1799. Hardly had he taken his seat 
 a few months later, when he was called upon to an- 
 nounce the death of Washington. " Those who were 
 present on the occasion," says Binney, " can never 
 forget the suppressed voice and deep emotion with 
 which he introduced the subject on the following day ; 
 or the thrill which pervaded the House at the con- 
 cluding resolution." 
 
 On questions which related to the Constitution, 
 Marshall was the acknowledged leader of the House. 
 The most notable debate in this Congress was upon 
 the resolutions of Edward Livingston, censuring the 
 President for his conduct in the extradition of Jona- 
 than Robbins. This executive interference was vio- 
 lently attacked as an unconstitutional exercise of 
 power. The speech of Marshall in reply to Living- 
 ston, in the language of Judge Story, "settled then 
 
38 ADDRESSES 
 
 and forever the points of national law upon which the 
 controversy hinged," and " is one of the most consum- 
 mate juridical arguments which was ever pronounced 
 in the halls of legislation." 
 
 During this term of Congress Marshall was ten- 
 dered the office of Secretary of War, which he de- 
 clined; and subsequently, the office of Secretary of 
 State, which he accepted. The latter position brought 
 before him our relations with foreign countries, and 
 especially with England. His State papers upon the 
 various questions arising out of the execution of the 
 British Treaty, which had threatened to interrupt 
 the peaceful relations of the two countries, were 
 strong, dignified, and diplomatic. 
 
 While serving as Secretary of State he was nomi- 
 nated by President Adams for Chief Justice ; his 
 nomination was unanimously confirmed by the Sen- 
 ate ; and he was commissioned January 31, 1801. 
 He took his seat on February 4, to enter upon a 
 career the most remarkable in judicial annals. 
 
 Marshall possessed intellectual powers of the high- 
 est order. The commanding features of his mind 
 were calmness, penetration, and profound wisdom. 
 In judicial acquirements he was not the equal of some 
 of his contemporaries. He was not what is termed 
 a learned man, and he had none of the arts of an 
 advocate. He relied upon the original powers of his 
 mind, and not upon knowledge gained from others. 
 
JOHN MARSHALL 39 
 
 He worked out the great problems of constitutional 
 jurisprudence as Newton worked out the great prob- 
 lems of natural science. He mastered new subjects 
 by his powers of analysis and intuitive perception 
 of the truth. " He seized, as it were by intuition," 
 says Judge Story, "the very spirit of juridical doc- 
 trines, though cased up in the armor of centuries ; 
 and he discussed authorities, as if the very minds 
 of the judges themselves stood disembodied before 
 him." 
 
 Marshall's moral nature was in harmony with his 
 intellectual. His affections were strong and pure. 
 His character was spodess. It is said he never had 
 an enemy. The affectionate regard which bound 
 others to him in his youth, and during his long 
 public career, became, towards the closing days of his 
 life, an exalted veneration. His nature was marked 
 by deep sensibility and tenderness. Speaking of his 
 domestic virtues, Judge Story, in his beautiful eulogy, 
 declares : " After all, whatever may be his fame in 
 the eyes of the world, that which in a just sense was 
 his highest glory was the purity, affectionateness, lib- 
 erality, and devotedness of his domestic life. Home, 
 home, was the scene of his real triumphs." 
 
 Though distinguished for moderation and good 
 temper, he was immovable in his performance of 
 judicial duty. The trial of Aaron Burr is an illustra- 
 tion of his firmness and impartiality under the most 
 
40 ADDRESSES 
 
 trying circumstances. The country was convinced 
 of Burr's guilt, and Marshall's rulings were severely 
 censured. " Marshall," exclaimed Wirt, " has stepped 
 in between Burr and death." But the great Chief 
 Justice stood unmoved while the storm of passion 
 and prejudice raged about him. The English law 
 of treason, he declared, had not been imported into 
 the Constitution. Treason under the Constitution 
 consists in some overt act, and it is not treason 
 for the subject to "imagine the death of the King." 
 Marshall's deepest feelings were aroused in this 
 memorable trial. Listen to these words : " That 
 this Court dares not usurp power is most true. That 
 this Court dares not shrink from its duty is not less 
 true. No man is desirous of placing himself in a 
 disagreeable situation. No man is desirous of be- 
 coming the peculiar subject of calumny. No man, 
 might he let the bitter cup pass from him without 
 self-reproach, would drain it to the bottom. But if 
 he has no choice in the case; if there is no alterna- 
 tive presented to him but a dereliction of duty or 
 the opprobrium of those who are denominated the 
 world, he merits the contempt as well as the indig- 
 nation of his country who can hesitate which to 
 embrace." 
 
 When the question was put to Wirt after the 
 trial, " Why did you not tell Judge Marshall that 
 the people of America demanded a conviction ? " 
 
JOHN MARSHALL 41 
 
 " Tell him that ! " was the reply. " I would as soon 
 have gone to Herschel, and told him that the people 
 of America insisted that the moon had horns as a 
 reason why he should draw her with them." 
 
 Marshall's personal traits were winning. Nothing 
 seemed to disturb his temper or equanimity. His 
 manners on the bench were a model of dignity, sim- 
 plicity, and courtesy. He heard the arguments of 
 counsel with unsurpassed patience and strict atten- 
 tion. " The gravity of the judge was tempered with 
 the courtesy of the gentleman." 
 
 An English traveller gives us a touching picture 
 of the Chief Justice during his last days : " The 
 Judge is a tall, venerable man, about eighty years 
 of age, his hair tied in a queue according to olden 
 custom ; and with a countenance indicating that sim- 
 plicity of mind and benignity which so eminently 
 distinguish his character. His house is small, and 
 more humble in appearance than those of the aver- 
 age successful lawyers or merchants. I called three 
 times upon him. There was no bell to the door. 
 Once I turned the handle of it and walked in unan- 
 nounced. On the other two occasions he had seen 
 me coming and had lifted the latch and received me 
 at the door, although he was at the time suffering 
 from some very severe contusions received in the 
 stage while travelling on the road from Fredericks- 
 burg to Richmond. I verily believe there is not a 
 
42 ADDRESSES 
 
 particle of vanity in his composition." Such was 
 the man, simple, kindly, great — the noble attributes 
 of true manhood. 
 
 Perhaps no tribute after his death is more beau- 
 tiful than is expressed in the words : " The fame of 
 the Chief Justice has justified the wisdom of the 
 Constitution, and reconciled the jealousy of freedom 
 to the independence of the judiciary." 
 
 The affection and veneration of the bar are feel- 
 ingly shown by the resolutions adopted by the Cir- 
 cuit Court of Virginia, which declare that he had 
 presided for thirty-five years "with such modesty 
 that he seemed wholly unconscious of his own 
 gigantic powers; with such equanimity, such benig- 
 nity of temper, such amenity of manners, that not 
 only none of the judges who sat with him on the 
 bench, but no member of the bar, no officer of the 
 court, no juror, no witness, no suitor, in a single 
 instance, ever found or imagined, in anything said 
 or done, or omitted by him, the slightest cause of 
 offence." 
 
 The providence of God has been made manifest 
 to this nation " in raising up from time to time men 
 of pre-eminent goodness and wisdom," — Washing- 
 ton, Lincoln, Marshall, each fitted for his special 
 work. The name and services of Marshall are less 
 known because what he did lies more hidden from 
 the eyes of men. But it only requires examination 
 
JOHN MARSHALL 48 
 
 and reflection to reveal the incalculable value of his 
 labors, and his title to the gratitude of his country. 
 In the beautiful emblem of the nation which hangs 
 from these historic walls it was by his hand the 
 silken threads were woven into the folds in which 
 are set and held forever those shining stars. 
 
 To comprehend Marshall's work we must stand 
 upon the mountain top and survey the nation; its 
 cluster of proud States stretching from ocean to 
 ocean; its groups of islands encircling the sea; its 
 strings of great cities ; its countless towns and vil- 
 lages, farms and homes; its temples of worship on 
 every hillside, whose spires are the first to greet the 
 morning sun at his coming; its schools and univer- 
 sities; its hospitals and charities; its commerce and 
 arts ; its science and invention ; its industries and 
 wealth, — the whole picture of national life which 
 is spread before our vision. 
 
 Behold the change! We are no longer a feeble 
 confederation of colonies fringing the Atlantic coast; 
 but a mighty composite Republic standing in the 
 front rank of nations, beckoning the poor and heavy- 
 burdened of other climes to this home of material 
 comfort, civilization, and orderly liberty ; and march- 
 ing to the financial and commercial supremacy of the 
 world. Our political system is no longer threatened 
 by discordant or belligerent States, but we behold 
 a loyal, united, and enduring Union, — the highest 
 
44 ADDRESSES 
 
 type of government, a Federal Commonwealth in 
 its perfect form. We see no longer a weak and 
 struggling national spirit, but the throb of seventy 
 million patriotic hearts as the Maine sinks beneath 
 the waters in Havana's harbor. The symbol of our 
 country's power is no longer the frigate Constitu- 
 tion, or the wooden ships of Perry built in a night 
 to cross an inland sea, but the majestic and invin- 
 cible Oregon, traversing two oceans from Pacific's 
 Golden Gate to battle for the oppressed of other 
 lands and the nation's honor. 
 
 As we enter the gateway of a new century with 
 hearts overflowing with gratitude to Almighty God 
 for our unnumbered national blessings, and await- 
 ing with high anticipation and conscious strength 
 the grander destiny of the coming years, we may 
 well pause to lay our wreath of laurel on the un- 
 crowned head of the great jurist who set deep and 
 immovable the constitutional pillars on which the 
 nation rests. 
 
PROTECTION OF THE PRESIDENT 45 
 
 THE PROTECTION OF THE PRESIDENT 
 OF THE UNITED STATES 
 
 Address delivered before the New Hampshire Bar Association at 
 their Annual Meeting at Concord on March 3, 1902. 
 
 Mr. President and Members of the 
 
 New Hampshire Bar Association: 
 
 A SOLEMN and imperative duty has fallen 
 upon the country: the protection of the 
 President of the United States. The sub- 
 ject is of the gravest public concern, and of peculiar 
 interest to our profession. 
 
 It is a startling commentary on our vaunted intel- 
 ligence, progress, and security, that we are unable 
 to guard the life of one individual in this country, 
 and he the most honored and best beloved. With 
 millions of men, as our recent experience revealed, 
 ready to rise at a moment's warning in defence of 
 the Republic ; with boundless resources ; with armies 
 and navies and all the appliances of modern warfare 
 at our command ; fearing not, in our conscious 
 strength, the attack of any foreign foe ; standing 
 proud, erect, and invincible before the world, — we 
 still see our Chief Magistrate shot down with the 
 same ease that a highwayman would shoot down a 
 
46 ADDRESSES 
 
 defenceless traveller on the public way. Something 
 must be wrong somewhere. 
 
 There is no conceivable crime so atrocious as the 
 causeless murder of the chosen ruler of a free people. 
 Such crimes rise infinitely higher than crimes against 
 the individual. They are crimes against humanity, 
 civilization, and the country's life ; against society, 
 law, and liberty. They are a blot upon free insti- 
 tutions, a stain upon the flag. They undermine the 
 happiness and well-being of the people. They lower 
 our standing and character in the opinion of man- 
 kind. They are blows aimed at the Presidency and 
 self-government; at the town-meeting, the State, and 
 the nation; at all our institutions, and everything 
 which finds expression in the words " Our Country." 
 
 Has our fancied security indeed proved a dream 
 and a delusion.? Has our boasted liberty become 
 the liberty of assassination.? Is this the end of the 
 struggles, the sacrifices, the aspirations of the people 
 for self-government? Is this the consummation of 
 the long, weary, and bloody march of mankind to 
 this fair land of freedom.? 
 
 The record is appalling. In thirty-seven years 
 three Presidents have been assassinated, an average 
 of one assassination every twelve years. The world 
 will surely hesitate to imitate our example of a true 
 democracy if this record be long continued. The 
 history of Europe for a thousand years furnishes 
 
PROTECTION OF THE PRESIDENT 47 
 
 no parallel. To find one we must go back to the 
 military usurpers of ancient Rome. 
 
 During these comparatively few years the assassi- 
 nations of our Chief Magistrates have equalled, if not 
 exceeded, those of the rulers of England since the 
 Norman conquest in 1066, and of France during 
 the last ten centuries. No king of England has been 
 assassinated for more than four hundred years, and 
 but one ruler of France in nearly three centuries. 
 
 During the life of the Federal government, a 
 period of one hundred and thirteen years, no ruler 
 of England, Germany, or Spain has suffered death 
 by violence ; France, Italy, and Austria have each 
 escaped with a single victim, while Russia records 
 but two instances. 
 
 This comparison becomes the more amazing when 
 we consider that tyrannicide, regicide, and religious 
 fanaticism have been among the principal causes 
 leading to the assassination of European rulers, and 
 that these causes have not existed here. Nor can this 
 striking contrast be explained by reference to latter- 
 day anarchism, for at most only one of the four 
 attempts upon the lives of our Presidents can be 
 traced to that cause. 
 
 This country stands arraigned before the judgment- 
 seat of civilized nations to account, if possible, for 
 these tragedies, and to atone for them by the adoption 
 of the best remedial measures which can be devised. 
 
48 ADDRESSES 
 
 We know that complete immunity from this form of 
 assassination is impossible, but the risk should be 
 reduced to a minimum. There must at least be an 
 abatement in the frequency of these national crimes. 
 
 We can no longer plead in justification our supreme 
 faith in a free people and democratic institutions as 
 a shield against such attacks ; nor our belief that no 
 one could be found to strike down the citizen chosen 
 by the will of the people to administer their own laws 
 by acting for a short time as their Chief Magistrate. 
 Nor can we plead that we could comprehend the 
 assassination of the Czar of Russia because he was 
 the State, or the assassination of the King of Italy 
 because he was born king, or the assassination of any 
 ruler where justice was denied the people and irrep- 
 arable political and social grievances existed ; but that 
 it was impossible for us to imagine how any human 
 being should wish to murder Lincoln or Garfield or 
 McKinley, who sprang from the people, whose lives 
 were consecrated to their happiness and well-being, 
 and who died " holy victims sacrificed on the altar of 
 liberty." We must now acknowledge our experience 
 has shown that the freest government, administered 
 by the most exalted characters, is not exempt from 
 this form of assassination. 
 
 Nor can we insist upon the violence of party spirit 
 inherent in a democracy as the cause, and cite as ex- 
 amples Athens, Venice, and Florence, because party 
 
PROTECTION OF THE PRESIDENT 49 
 
 struggles will not account for the frequency of these 
 catastrophes; and, further, our political institutions 
 and social conditions are quite unlike those of any 
 ancient or mediasval republic. 
 
 Nor will it do to urge too strongly in defence the 
 inadequacy of our laws, either punitive or preventive, 
 because it appears that the would-be assassin of Presi- 
 dent Jackson was speedily tried by a jury and found 
 to be insane; that the assassin of President Lincoln 
 was quickly traced to his hiding-place and shot to 
 death while resisting arrest; that the assassin of Pres- 
 ident Garfield was tried, convicted, and executed; 
 and that the murderer of President McKinley met 
 quick retributive justice under the law. So likewise, 
 with respect to preventive legislation, it may be said 
 that a volume of such laws would have had no deter- 
 rent effect upon the insane Lawrence or the con- 
 spirator Booth or the unbalanced Guiteau ; and if the 
 recent diagnosis of Czolgosz's condition be true, it is 
 doubtful to what extent any laws would have operated 
 to prevent this attempt. 
 
 We may perhaps as a people be forgiven for the 
 murder of Lincoln, — the offspring of the violent pas- 
 sions born of civil war, — and we may find an histori- 
 cal parallel in the murder of William of Orange or 
 Henry IV of France; but the recorded annals of 
 mankind will be searched in vain to find a parallel 
 to the murders of Garfield and McKinley. In the 
 
50 ADDRESSES 
 
 unavoidable dangers incident to the high ofSce of 
 President, it would not have been surprising if one 
 of our Chief Magistrates had met a violent death ; but 
 the gravity of the charge against this country, and 
 the apparently inexplicable thing, is the frequency 
 of the crime under existing circumstances. It would 
 not have seemed extraordinary if one of our Presi- 
 dents had died by the hand of a conspirator, an insane 
 person, or an anarchist ; but what is astounding, and 
 seemingly unaccountable, is that Lincoln, Garfield, 
 and McKinley should all have been assassinated within 
 forty years. 
 
 This phenomenon must be accounted for in some 
 way. There must be a cause lying hidden some- 
 where. Let us contrast the successful and unsuccess- 
 ful attempts upon the lives of our Chief Magistrates 
 with the successful and unsuccessful attempts upon 
 the lives of foreign rulers, and see if some light is 
 not thrown upon the subject. For if it should turn 
 out to be true that the attempts to kill our Chief Mag- 
 istrates have been far less frequent than the attempts 
 to kill the rulers of other civilized nations, and that our 
 trouble is owing to the success of the attempts and 
 not to their number, we are on the road to the dis- 
 covery of the true cause of the anomalous situation 
 of this country respecting these political crimes. 
 
 From 1789 to 1902 there have been four attempts 
 to assassinate the Presidents of the United States, as 
 
PROTECTION OF THE PRESIDENT 51 
 
 compared with ten attempts to assassinate the rulers 
 of England (exclusive of four minor assaults), seven- 
 teen attempts to assassinate the rulers of France, 
 ten attempts to assassinate the rulers of Russia; 
 and since 1850 five attempts to assassinate the 
 rulers of Germany (Prussia), six attempts to assas- 
 sinate the rulers of Spain, four attempts to assassi- 
 nate the rulers of Italy, and three attempts to 
 assassinate the rulers of Austria. This list is with- 
 out doubt incomplete. Moreover it does not include 
 many plots and conspiracies which were discovered 
 before consummation. The comparatively large num- 
 ber of recorded attempts in England and France may 
 be due to the effort in some countries to suppress 
 the publication of such events. 
 
 This comparison discloses this astounding result: 
 Of the four attempts upon the lives of the Presi- 
 dents, three have been successful, or seventy-five 
 per cent; of the ten attempts upon the lives of 
 English rulers, none have been successful; of the 
 seventeen attempts upon the lives of the rulers of 
 France, only one has been successful, or about six 
 per cent ; of the ten attempts upon the lives of 
 the rulers of Russia, but two have been successful, 
 or twenty per cent. And since 1850, of the five 
 attempts upon the lives of the rulers of Germany 
 (Prussia), none have been successful; of the six 
 attempts upon the lives of the rulers of Spain, none 
 
52 ADDRESSES 
 
 have been successful; of the four attempts upon the 
 lives of the rulers of Italy, only one has been suc- 
 cessful ; and of the three attempts upon the lives of 
 the rulers of Austria, but one has been successful. 
 
 Limiting this comparison to the attempts since 
 i860, we find three attempts upon the lives of the 
 Presidents, as compared with two attempts upon the 
 lives of the rulers of England; five attempts upon 
 the lives of the rulers of France ; eight attempts 
 upon the lives of the rulers of Russia ; three attempts 
 upon the lives of the rulers of Germany; four at- 
 tempts upon the lives of the rulers of Spain; three 
 attempts upon the lives of the rulers of Italy; and 
 two attempts upon the lives of the rulers of Austria. 
 The comparatively small number of attempts in 
 England during these years may be in part due to 
 the almost absolute seclusion of Queen Victoria after 
 the death of Prince Albert. 
 
 This comparison gives the following result: Since 
 i860 all of the attempts upon the lives of the Presi- 
 dents of the United States were successful; the two 
 attempts upon the lives of English rulers were un- 
 successful ; of the five attempts upon the lives of 
 the rulers of France, only one was successful ; of the 
 three attempts upon the lives of the rulers of Ger- 
 many, none were successful; of the eight attempts 
 upon the lives of the rulers of Russia, but one was 
 successful ; of the three attempts upon the lives of 
 
PROTECTION OF THE PRESIDENT 53 
 
 the rulers of Italy only one was successful; of the 
 four attempts upon the lives of the rulers of Spain, 
 none were successful; and of the two attempts upon 
 the lives of the rulers of Austria, but one was 
 successful. 
 
 Limiting this comparison to the attempts by 
 anarchists, in which the country is now deeply con- 
 cerned, we find in the past forty years only one such 
 attempt upon the life of the President, as compared 
 with three attempts upon the rulers of France, six 
 attempts upon the rulers of Russia, one attempt upon 
 the rulers of Germany, two attempts upon the rulers 
 of Italy, and one attempt upon the rulers of Austria. 
 The result of these attempts was as follows : The 
 single attempt in this country was successful ; the sin- 
 gle attempt in Austria was also successful ; the single 
 attempt in Germany was unsuccessful ; of the three 
 attempts in France, but one was successful ; of the 
 six attempts in Russia, only one was successful ; and 
 of the two attempts in Italy, but one was successful. 
 
 To summarize: Of the four attempts to assassi- 
 nate the Presidents of the United States since the 
 foundation of the government in 1789, three have 
 been successful, or seventy-five per cent ; of the fifty- 
 five attempts to assassinate the rulers of Europe in 
 the countries above mentioned since 1789, only five 
 have been successful, or about nine per cent. Since 
 i860, of the three attempts to assassinate the Presi- 
 
54 ADDRESSES 
 
 dents of the United States, three have been success- 
 ful, or one hundred per cent; of the twenty-seven 
 attempts to assassinate the rulers of Europe in the 
 countries above mentioned, only four have been suc- 
 cessful, or fifteen per cent. The single attempt by 
 anarchists to assassinate the President of the United 
 States has been successful ; and of the thirteen 
 attempts by anarchists to assassinate the rulers of 
 the European countries above mentioned, only four 
 have been successful, or thirty per cent. 
 
 In this comparison between the attempts in this 
 country and in European countries, it should be 
 remembered that the personal protection afforded 
 European rulers undoubtedly prevented many attacks 
 which otherwise would have occurred. The circum- 
 stance that a ruler is openly guarded has a marked 
 deterrent effect upon assaults of this nature. It is 
 safe, perhaps, to say that the life of no one of the 
 European rulers I have mentioned, excepting possi- 
 bly that of England, under the existing political 
 and social conditions in his country, would be safe 
 for a single year if he exposed himself to the same 
 extent as the President of the United States. 
 
 This wide difference between the success and 
 failure of the attempts upon the lives of the rulers 
 in this country and in Europe can be accounted 
 for only upon the theory of the absence of safe- 
 guards surrounding the President, and his consequent 
 
PROTECTION OF THE PRESIDENT 55 
 
 exposure to attack. Had the would-be assassins of 
 England's rulers since Washington took his seat ac- 
 complished their object with the same ease as in this 
 country, in all human probability the number of vic- 
 tims would have been more than double the number 
 of our martyred Presidents; and in France the num- 
 ber would have been four times as great. Had the 
 number of assassinations in England, in proportion 
 to the attempts, been the same as in this country, 
 the number of victims would have been seven, while 
 in France the number would have been twelve. This 
 demonstrates that the difference between our country 
 and other countries lies in the fatality of the attempts, 
 and not in the number. Not only does the United 
 States favorably compare with England and France 
 in respect to these attempts at assassination, but in 
 point of fact there have been more than double the 
 number of attempts in England and more than four 
 times the number of attempts in France, since the 
 organization of the Federal government. It follows 
 that this country would have been comparatively free 
 from these tragedies if reasonable precautions had 
 been taken to protect the person of the President; 
 and that it is not so vital to guard against attempts 
 at assassination as to prevent such attempts from 
 proving fatal, by the exercise of reasonable care on 
 the part of the President himself, and by affording 
 Jiim proper means of protection. 
 
56 ADDRESSES 
 
 Following this line of inquiry into some of the 
 details of the four attempts upon the lives of our 
 Chief Magistrates, it will be found that three were 
 successful owing to the absence of ordinary safe- 
 guards, and that the fourth would have been equally 
 fatal had not the weapons missed fire from some 
 almost miraculous cause. 
 
 The would-be assassin of President Jackson was 
 permitted to approach within a few feet of his per- 
 son, and deliberately attempt to discharge two pis* 
 tols; the assassin of President Lincoln entered the 
 theatre box where the President was sitting, quietly 
 barred the door behind him, and held his weapon 
 within a few inches of the head of his victim ; the 
 assassin of President Garfield approached from be- 
 hind to within a few feet of his person, fired one 
 shot, and then, unmolested, took deliberate aim and 
 discharged the fatal bullet ; and the assassin of Pres- 
 ident McKinley held his pistol at the President's 
 breast. 
 
 Had the portico of the Capitol been properly 
 watched as the President passed along, the wpuld-^ 
 be slayer of Jackson, who for some time had been 
 walking about unnoticed, would have been appre- 
 hended ; had the entrance to the box in Ford's The- 
 atre been protected against intruders, Lincoln would 
 not have been shot ; had there been some person on 
 watch to observe the approach of Guiteau as the Pres- 
 
PROTECTION OF THE PRESIDENT 57 
 
 ident and Mr. Blaine walked unattended through the 
 waiting-room of the railway station on that fatal July 
 morning, Garfield would not have been stricken down ; 
 and had it not been the custom for the President, on 
 all public occasions, freely to shake hands with large 
 crowds of people, or had such hand-shaking been 
 conducted under proper regulations and precautions, 
 McKinley would have been alive to-day. 
 
 These considerations strongly confirm the view 
 that the number and frequency of our national 
 tragedies are not due to the prevalence of a spirit 
 of assassination, but spring from our over-confidence 
 and want of caution ; and that the most effective 
 remedy lies in keeping, as far as possible, suspicious 
 persons at a safe distance from the President. 
 
 If the real cause of these oft-repeated catastrophes 
 be traced to this source, the situation must be 
 recognized and met by the exercise of the same 
 intelligence, common sense, and sound judgment 
 which have ever characterized the American people 
 in dealing with grave public matters. 
 
 The sentimental notion that, because we are a 
 democracy and the people have been accustomed 
 freely and on all occasions to meet their Chief 
 Magistrate, it would be unrepublican and savor of 
 royalty to impair this time-honored custom, must 
 not stand in the way where the life of the Presi- 
 dent is at stake. 
 
58 ADDRESSES 
 
 If the universal experience of other civilized 
 peoples, confirmed by our recent history, teaches 
 that the safety of the Head of the State is depend- 
 ent upon surrounding his person with proper safe- 
 guards, it is folly for this country to ignore this 
 fact on the imaginary ground that we are a chosen 
 people, and an exception to all ordinary laws. 
 
 The conditions which might have rendered it 
 reasonably safe for the President to mingle openly 
 with the people in the early days of the Republic 
 are changed, and we must adapt ourselves to the 
 new environment. There is a great difference be- 
 tween a sparsely settled country, consisting largely 
 of agricultural communities, with slow and difficult 
 means of communication, and a country inhabited 
 by many millions of people of different nationalities, 
 with the railway, the telegraph, and the telephone, 
 and with the conflicting social forces of the latter 
 part of the nineteenth century. In a few days, his 
 coming having been freely advertised, the President 
 may travel from ocean to ocean, and come in con- 
 tact with a third of the population of the country; 
 and the same facilities for the annihilation of space 
 and time are afforded the would-be assassin. " New 
 occasions teach new duties; time makes ancient 
 good uncouth." 
 
 The bill recently reported to the United States 
 Senate from the Judiciary Committee by Senator 
 
PROTECTION OF THE PRESIDENT 59 
 
 Hoar is certainly a movement in the right direction. 
 By section 7 of the bill, " The Secretary of War 
 is authorized and directed to select and detail from 
 the Regular Army a sufficient number of officers 
 and men to guard and protect the person of the 
 President of the United States without any un- 
 necessary display." If this provision should be 
 supplemented by the appropriation of a sum of 
 money, to be at the disposal of the President for 
 the purpose of securing additional police protec- 
 tion, it would be a further aid. 
 
 It is said that the President of the French 
 Republic does not attend public meetings, speak 
 from the platforms of railway cars, move around in 
 an approachable and conspicuous way at fairs and 
 expositions, or hold open levees for the shaking of 
 hands. 
 
 As supplementary to the above legislation, if the 
 President should exercise, so far as practicable, the 
 same precautions, the risk would be still further 
 reduced. The visible guard surrounding the Pres- 
 ident of itself would have a tendency to prevent 
 these attacks. It is a somwhat significant fact 
 in this connection, that no assault has ever been 
 attempted upon the President in the White House, 
 where reasonable precautions are taken. 
 
 The situation does not demand that our Chief 
 Magistrate shall travel from place to place with 
 
60 ADDRESSES 
 
 the military pomp of some European rulers or 
 with the gorgeous pageantry of Queen Elizabeth; 
 but it does demand that he shall be accompanied 
 by reasonable safeguards, appropriate to the sim- 
 plicity and dignity of republican institutions. 
 
 Since the death of President McKinley, the 
 thoughts of the people and of Congress have been 
 mostly occupied in the consideration of measures 
 for the prevention of these attempts rather than in 
 the means for guarding against their fatality. The 
 difficulty of preventing attempts through legislation, 
 except in the particular already mentioned, is that 
 the subject in a large measure lies beyond the 
 control of laws. When we consider the class of 
 persons who commonly make these assaults, it will 
 be found that the laws have little deterrent effect 
 upon them. Let us take, for illustration, this 
 country and England. 
 
 Of the ten attacks upon the lives of English 
 rulers since 1789, four were by persons pronounced 
 insane; three by persons unknown, who fired from 
 a distance; and two of the remaining three, from 
 the nature of the assaults, were seemingly by per- 
 sons acting under the impulse of some imaginary 
 wrong. In the case of the six assaults on Queen 
 Victoria, three were manifestly by insane persons ; 
 and it is questionable if more than one out of the 
 six was by a person of sound mind. 
 
PROTECTION OF THE PRESIDENT 61 
 
 In this country we find that the would-be assassin 
 of President Jackson was pronounced hopelessly in- 
 sane by a jury after five minutes' deliberation, that 
 the assassin of President Garfield is universally ad- 
 mitted to have had an unbalanced mind, and that 
 the medical world is now divided on the subject of 
 the sanity of the slayer of President McKinley. The 
 conclusion reached by Dr. Channing, after careful 
 investigation of this person's life, habits, and antece- 
 dents, raises a strong doubt, at least, respecting his 
 mental condition. Dr. Channing's diagnosis indi- 
 cates mental impairment, which assumed the form 
 of delusions; the exciting causes of the act being 
 the reading of anarchistic literature and attending 
 anarchistic meetings. The assassin of President 
 Lincoln alone forms an exception to the general 
 type. In that instance the attack w^as the outcome 
 of a political conspiracy. 
 
 We find, then, that in England these assaults 
 have been largely mad attempts; and that in this 
 country there have been two mad attempts, a third in 
 the nature of a mad attempt inspired by anarchistic 
 teachings, and a fourth the outgrowth of political 
 strife. It is plain that no laws would have checked 
 the insane Lawrence, who imagined that he had been 
 wrongfully deprived of the crown of England; or 
 the conspirator Booth; or the unhinged Guiteau, 
 who, brooding over his failure to obtain office, be- 
 
62 ADDRESSES 
 
 came possessed of a mad desire to become the cyno- 
 sure of all eyes; or the morbid Czolgosz, incited by 
 anarchistic teachings — unless possibly our laws had 
 prevented anarchism from crossing the Atlantic. 
 
 Fundamentally, this form of assassination is the 
 result of environment. The disease is too deep- 
 seated for legislative cure. We are confronted with 
 two associated causes which cannot be eradicated: 
 the social and industrial conditions of modern so- 
 ciety, and the unbalanced mind, — the extremes of 
 wealth, power, ease, and lavish luxury on the one 
 hand, and poverty, ignorance, misery, and the strug- 
 gle for existence on the other, in a society which 
 also contains the diseased brain, the dethroned rea- 
 son, homicidal mania; the victim of the delusion of 
 imaginary wrongs to himself, his class, or his nation- 
 ality; the would-be suicide, who thinks if he kills a 
 ruler monuments will be erected to his memory ; the 
 degenerate, the fanatic, and the criminal. So long 
 as these social conditions exist we shall not be free 
 from attempts to assassinate our Chief Magistrate. 
 
 But we may still ask, will not some general remedial 
 legislation by Congress help the situation? With re- 
 spect to mad attempts, which are the most common, 
 or attempts resulting from political conspiracy, it is 
 doubtful if additional legislation other than that which 
 concerns the personal protection of the President 
 would prove in any considerable degree effective. 
 
PROTECTION OF THE PRESIDENT 63 
 
 We have had but one attempt in the nature of a 
 political conspiracy, which arose under exceptional 
 circumstances; and it may be said that we are rea- 
 sonably safe, for the present, from any attempt of this 
 character. There never was a time in the history of 
 this or any other country when the affections of the 
 people for their government and their Chief Magis- 
 trate were so strong and all-pervading. Grave and 
 perilous political questions like slavery and the right 
 of secession no longer rouse the violent passions of 
 the people and divide the country into hostile camps. 
 
 We must not, however, place too much confidence 
 in the continuation of the existing state of affairs. 
 The danger of a disputed succession to the Presi- 
 dency, such as existed in 1876, cannot be ignored. 
 This is a danger inherent in our electoral system, and 
 is the weak spot in our Federal form of government. 
 
 Nor must we overlook the possible consequences of 
 a conflict between labor and capital under present in- 
 dustrial methods. It is an economic law that periods 
 of general financial depression occur about every 
 twenty-five years ; and if the situation during one of 
 these crises should be aggravated by a shortage of 
 crops, it might produce conditions which lead to po- 
 litical conspiracies. But no such situation seems near 
 at hand ; and we may rest reasonably secure against 
 attacks upon the life of the President springing from 
 any such cause. 
 
64 ADDRESSES 
 
 The assassinations which have startled the world 
 during the past ten years have been by anarchists, 
 and the most universally beloved President in our 
 history has fallen a victim. This great sorrow still 
 overshadows the country, and the people are waiting, 
 hoping, praying, that Congress will in some way 
 shield the nation from such tragedies in the future. 
 It is a most difficult crisis to meet. We have already 
 pointed out that the field of effective legislation on 
 this subject is limited ; at the same time such laws as 
 we believe will prove beneficial should be speedily 
 enacted. 
 
 The present danger is not so much from anarchistic 
 conspiracies hatched by any of the known groups of 
 anarchists, as from some morbid individual who feels 
 that he must become the executioner of anarchy, — 
 the most dangerous criminal known to history. 
 
 It is fifteen years since August Spies and others 
 were executed. Had any of the groups of Chicago 
 anarchists, in revenge for their death, planned to 
 assassinate the President, many opportunities would 
 not have been wanting. President Carnot, Empress 
 Elizabeth, and King Humbert have all been assassi- 
 nated by some member of a group of Italian anar- 
 chists. A branch of this group is located in Paterson, 
 New Jersey, and Bresci went from there on his mis- 
 sion to kill the King of Italy. Had this group in- 
 cluded among its intended victims the President of 
 
PROTECTION OF THE PRESIDENT 65 
 
 the United States, the accomplishment of that purpose 
 at any time would have been an easy task. 
 
 It is undoubtedly true that free institutions afford 
 some measure of protection against these attacks, 
 and that they have been mainly directed against the 
 rulers of European countries, owing to different polit- 
 ical and social conditions. But still our recent expe- 
 rience has taught that the freest government is not 
 exempt from this danger, and that we must guard 
 against it in every possible way. It is also true that 
 the wisdom of extreme repressive measures is doubt- 
 ful. The experience of Spain and other countries has 
 shown that drastic legislation has always been fol- 
 lowed by renewed attempts of a more deadly and 
 violent kind. 
 
 The type of anarchists who seek to enforce their 
 doctrine by assassination discloses difficulties in the 
 way of meeting the situation by laws. These indi- 
 viduals may be classed in the same category with 
 those who make what are known as *' mad attempts " 
 upon the Head of the State. According to Regis, 
 they are the typical regicides or magnicides, who have 
 existed from remote antiquity. They are fanatics 
 with minds tainted by insanity, eccentricity, epilepsy, 
 and suicidal impulse. We are not here referring to 
 the revolutionary anarchists as a body, but to the 
 particular type who execute these deeds of violence 
 and death. Professor Lombroso, of the University 
 
 5 
 
66 ADDRESSES 
 
 of Turin, as the result of his researches, finds that a 
 large number of this particular type of anarchists are 
 madmen and criminals. Some who had attempted 
 assassination were epileptics; others were victims of 
 alcoholism ; others were indirect suicides, rejoicing 
 at the opportunity of being put to death for the 
 murder of a ruler; others were partially demented, 
 imagined themselves persecuted, and were carried 
 away by a violent impulse for assassination. In no 
 case have they been known to have had accomplices. 
 They " are almost always alone in concealing, pre- 
 paring, and accomplishing their deeds, being unwill- 
 ing to have anyone share with them the merits and 
 honors." 
 
 It is hard to reach this type of anarchist by leg-^ 
 islation. He is not easily discovered in the country, 
 nor easily kept out. It is said that the leader of an 
 Italian group of revolutionary anarchists travels from 
 country to country at will. 
 
 The exciting causes which lead to assassination by 
 this type of anarchist are anarchistic books, pam- 
 phlets, papers, and attendance upon gatherings of 
 revolutionary anarchists. Although we have now 
 reached a field where legislation may help, a mo- 
 ments consideration will show the difficulties that 
 are encountered. 
 
 Anarchy, or anarchism, is a broad term. There is 
 philosophical anarchism and revolutionary anarchism ;, 
 
PROTECTION OF THE PRESIDENT m 
 
 and there are philosophical anarchists, revolutionary 
 anarchists, and the anarchists of terror. 
 
 Philosophical anarchism, which is beyond legisla- 
 tive control, is a theory of social life based upon an 
 ethical view of human relations. It is the philoso- 
 pher's dream of a perfect state of society composed 
 of perfect human beings. It signifies that if every- 
 body did what was right there would be no need 
 of government. It is "individualism run mad." Its 
 falsity is based upon the assumed premise of perfec- 
 tion of humanity. Many thinkers believe it is the 
 goal which society should strive to reach and which 
 eventually will be attained. In a purely ethical sense, 
 some of our greatest philosophers may be classed as 
 anarchists. 
 
 Anarchy is the antithesis of government. It is 
 society without government. It denies the utility 
 of all government. It calls for a state of absolute 
 individual liberty and equality. "All institutions — 
 economic, ethical, religious, or political — that in any 
 sense circumscribe or limit the equality, freedom, 
 and liberty of men as individual units are, therefore, 
 an evil to be eradicated." " Free democratic govern- 
 ments are no better than despotic monarchies." It 
 ascribes all the evils of society to law and govern- 
 ment. As some reformers attribute social evils to 
 ignorance or other causes, the anarchist attributes 
 them to government, and proposes " the abolition 
 
68 ADDRESSES 
 
 of all law, government, and authority as a universal 
 panacea." 
 
 If the writers on anarchism limited their lan- 
 guage to the legitimate discussion of their theory 
 of society, the State could not well complain; but 
 such is not the fact. In Proudhon, Bakunin, Kro- 
 potkin, and other writers, are found thoughts and 
 expressions which incite to violence, and which pro- 
 voke the writings and pamphlets of the radical 
 revolutionary anarchists. We may cite a few ex- 
 amples of their teachings and maxims : 
 
 "Governments are the scourge of God." 
 
 " Property is robbery." 
 
 " Theft is the recovery by violence from the rich 
 of that which the rich have taken by violence from 
 the poor." 
 
 "Appropriation by force must be the anarchists! 
 prelude to the wholesale insurrection which they will 
 sooner or later enact." 
 
 " Law has no title to the respect of men. Born of 
 violence and superstition, and established in the in- 
 terests of the consumer, priest, and rich exploiter, it 
 must be utterly destroyed on the day when the people 
 desire to break their chains." 
 
 " No more laws ! No more judges ! Liberty, 
 equality, and practical human sympathy are the only 
 effectual barriers we can oppose to the anti-social 
 instincts of certain among us." 
 
PROTECTION OF THE PRESIDENT 69 
 
 Such ideas taken up by the extreme revolutionary 
 anarchists lead to the expression of such sentiments 
 as the following : 
 
 " Our only hope is in earnest, organized action. 
 Burn, kill, and destroy until we force the autocrats to 
 turn. We have lost hope in God, hope in humanity, 
 and hope in the world at large. Let every man do 
 his duty. This is a time when the workingman will 
 either become a slave or a master. Choose between 
 the two, and choose at once. Let us give no quarter, 
 and ask none ; only let us stand by each other, and 
 each man at his post. If we must die, let us die like 
 men, and not slaves." 
 
 By a process of evolution we are conducted, step 
 by step, from the theory of anarchy through anar- 
 chistic literature to revolutionary anarchy and its 
 literature of violence, and thence to the anarchy of 
 terrorism and its executioner, the typical regicide. 
 
 Although anarchistic literature is in our public 
 libraries, and anarchists are with us, there can be no 
 question of the power of the State to forbid the pub- 
 lication and circulation of writings calculated to incite 
 to violence and murder, and to forbid the assemblage 
 of persons for the purpose of instigating and advis- 
 ing violence and murder. The constitutional right 
 of free speech cannot here be invoked. Free speech 
 is a no more sacred right than self-protection. Free 
 speech does not mean the right to take, or to incite 
 
70 ADDRESSES 
 
 the taking of, the life, property, or reputation of 
 another. 
 
 All personal rights are reciprocal and mutually 
 binding, and are enjoyed upon the condition of re- 
 specting the enjoyment of the same rights by others ; 
 and the purpose of the law is the enforcement of these 
 mutual obligations. Without invoking the broader 
 and more elastic rule that free speech may be re- 
 strained respecting acts which are inimical to the 
 peace, good order, and morals of a community, its 
 restriction here rests upon the fundamental doctrine 
 of personal rights and obligations. 
 
 Revolutionary anarchists should be prohibited by 
 severe penal laws from uttering, writing, or publishing 
 language threatening, advising, or instigating the kill- 
 ing of the President, or advising or instigating an- 
 other to kill the President, or conspiring with others 
 to kill the President. 
 
 The comprehensive and carefully drawn bill of 
 Senator Hoar, from which we have already cited 
 one provision, covers this whole branch of the sub- 
 ject. It punishes wath death any person who, within 
 the jurisdiction of the United States, shall wilfully 
 kill or cause the death of the President or Vice- 
 President of the United States, or any officer thereof 
 upon whom the powers and duties of the President 
 may devolve, or who shall wilfully cause the death 
 of the sovereign or chief magistrate of any foreign 
 
PROTECTION OF THE PRESIDENT 71 
 
 country ; and the same penalty is inflicted upon 
 any persons who shall attempt to commit either of 
 these offences. It punishes by a term of imprison- 
 ment not exceeding ten years any person who, within 
 the jurisdiction of the United States, shall instigate, 
 advise, or counsel the killing of the President or 
 Vice-President of the United States, or any officer 
 thereof upon whom the powers and duties of the 
 President may devolve, or who shall conspire with 
 any other person to accomplish the same, or who 
 shall instigate, advise, or counsel the killing of the 
 sovereign or chief magistrate of any foreign country, 
 or shall conspire with any other person to accom- 
 plish the same. It punishes by imprisonment not 
 exceeding ten years any person who shall, within the 
 jurisdiction of the United States, by spoken words, 
 .or by written or printed words, uttered or published, 
 threaten to kill, or advise or instigate another to 
 kill, the President or Vice-President of the United 
 States, or any officer thereof upon whom the powers 
 and duties of the President may devolve. It fur- 
 ther provides that any person so conspiring may be 
 indicted and convicted separately, although the other 
 party or parties to the conspiracy are not indicted 
 or convicted ; and that any person who shall wilfully 
 and knowingly aid in the escape from punishment 
 of any person guilty of any of the above offences 
 shall be deemed an accomplice after the fact, and 
 
72 • ADDRESSES 
 
 shall be punished as if a principal, although the 
 other party or parties to the offence shall not be 
 indicted or convicted. 
 
 It will be observed that this bill includes not only 
 the President, but the Vice-President and other per- 
 sons in the line of succession to that high office, as 
 well as the heads of foreign States. These additional 
 provisions are important and necessary. Civilization 
 and the comity of nations forbid that this country 
 should become the vantage-ground for conspiracies 
 to kill foreign rulers. We should prevent by law, 
 so far as possible, assassins taking up their abode 
 in this country mainly for the purpose of crossing 
 the Atlantic at a convenient and opportune time to 
 assassinate a foreign ruler. 
 
 Although no person who has attempted to assassi- 
 nate the President of the United States has escaped 
 justice, our present Federal laws are manifestly 
 defective and inadequate in that they make no pro- 
 vision for the punishment of persons who kill, or 
 attempt to kill, the Chief Magistrate. Had President 
 McKinley been shot in Rhode Island or Maine, or in 
 any other State where capital punishment has been 
 abolished, the punishment of the assassin would have 
 been limited to imprisonment for life. Had the 
 assault on the President not proved fatal, the max- 
 imum penalty for his would-be murderer, under the 
 laws of New York, would have been but ten years. 
 
PROTECTION OF THE PRESIDENT 73 
 
 There is no doubt of the power of Congress, 
 under the Constitution, to make laws for the pro- 
 tection of foreign rulers and ambassadors, because 
 this subject comes within the law of nations. But 
 the power of Congress to enact law3 for the pro- 
 tection of the President has been questioned. Time 
 will not permit an entry into this field of discussion. 
 The question has never been passed upon by the 
 Supreme Court. It may be claimed, with a good 
 deal of confidence, that the limitation of this power 
 to other officers of the government when engaged 
 in the duties of their office, does not apply to the 
 President of the United States or other persons in 
 the line of succession. The protection of the Presi- 
 dent is a distinct question, far more vital and funda- 
 mental than the protection of other government 
 officers. ^ 
 
 The Constitution vests the executive power in the 
 President, and gives Congress the power to make 
 all laws necessary for carrying into execution the 
 powers vested by the Constitution in the govern- 
 ment. Every government has the inherent power 
 of self-preservation. The Supreme Court has often 
 said that the government was endowed with all the 
 powers necessary for its own preservation. To 
 strike down the President is to strike down the 
 executive head of the government, — the person 
 charged at all times with the execution of the laws. 
 
74 ADDRESSES 
 
 With the possible exception of treason, the assassi- 
 nation of the President is the highest known crime 
 against the United States; and the power of Con- 
 gress to pass laws for the punishment of crimes 
 against the United States has always been recog- 
 nized and exercised. 
 
 In addition to Senator Hoar's bill, some further 
 protection may be afforded in more liberal extra- 
 dition treaties, which possibly should cover an 
 international police surveillance of the class of 
 revolutionary anarchists who instigate and advise 
 assassination. 
 
 The opinion expressed by some that the present 
 situation justifies the passage of stringent laws 
 respecting immigration and naturalization, I do not 
 entertain. It is doubtful if such laws would accom- 
 plish the purpose designed, and reach the revolu- 
 tionary anarchists. Anarchy can be finally stamped 
 out only through the influence of education. 
 Although most of the anarchists in this country 
 are aliens or of alien descent, it is a fact worthy 
 of mention that, with the exception of the hope- 
 lessly insane Lawrence, no alien or naturalized 
 person has ever raised his hand against the Presi- 
 dent of the United States. 
 
 The whole question of the protection of the life 
 of the President is one of the elimination of chances. 
 This investigation has led me to conclude that the 
 
PROTECTION OF THE PRESIDENT 75 
 
 primary thing is to safeguard the President's per- 
 son, and that this should be supplemented by 
 legislation along the lines considered. 
 
 Among the reasons for my thankfulness for this 
 invitation to address the New Hampshire Bar 
 Association, is the opportunity it has afforded for 
 some examination into the causes of the strikingly 
 anomalous situation of this country concerning the 
 assassination of its Chief Magistrates. I cannot 
 express the gratification which I have derived in 
 satisfying my own mind that the principal cause 
 is carelessness and neglect, and does not lie deeper 
 in the character of our people or government. 
 
 No ! The liberty of this country is not the lib- 
 erty of assassination. Our dream of self-government 
 has not proved a delusion. The struggles and sac- 
 rifices of mankind have not been in vain. The 
 nation still remains the home of freedom, law, 
 and justice. 
 
 Each of these terrible tragedies has only added 
 strength and unity to the Republic. The world 
 has never witnessed such a tribute of love for a 
 ruler, or devotion to a government, as when the 
 martyred McKinley was laid to rest amid the hush 
 of traffic and industry, while the nation, in silent 
 prayer, stood like a statue upon whose brow was 
 beating the soft, pure light of liberty. 
 
 This country presents to-day as fair a picture of 
 
76 ADDRESSES 
 
 government and society as ever met the eye of man; 
 a picture full of human comfort, happiness, and well- 
 being. There are spots on the surface like the 
 spots on the surface of the sun, and there always 
 will be so long as society is composed of imperfect 
 humanity. 
 
 We have erected a State majestic in its propor- 
 tions, with liberty at its base, — the most powerful 
 political system ever know^n, combining the free- 
 dom of the individual and the community with the 
 strength of a mighty empire. We have tried to 
 secure the prosperity and welfare of the whole people, 
 including all races and nationalities who have sought 
 these shores. Political equality we have realized; 
 but equality of well-being and of human satisfaction 
 w^e have not attained. The great and irreversible 
 laws of nature, that wealth is the product of labor 
 and sacrifice, and that men are born with unequal 
 capacity and energy, oppose their insuperable bar- 
 riers to such an accomplishment. But, through 
 divine charity, we see the light which shall dispel 
 this darkness. Indeed, the consummation seems 
 near at hand, as we behold genius, through human 
 sympathy, bestowing upon mankind the fruits of 
 the talents derived from God. 
 
LAW AND REASONABLENESS 
 
 LAW AND REASONABLENESS 
 
 The Annual Address before the American Bar Association at Hot 
 Springs, Virginia, on August 27, 1903. 
 
 Mr. President and Gentlemen 
 
 OF THE American Bar Association: 
 
 THE first and most pleasant duty which falls 
 upon me at this time is the acknowledg- 
 ment of my deep appreciation of the very 
 high honor of the invitation to address you at your 
 annual meeting. 
 
 I understand it is a law of this Association, estab- 
 lished by its founders, that these invitations are not 
 under any circumstances to be declined ; and that it 
 has been decreed that this particular law is a com- 
 mand proceeding from a sovereign power, and that 
 ignorance of the law is no excuse. At the same time 
 it must be confessed that obedience to your mandate 
 is not an easy task. Our professional duties are 
 laborious and exacting. Judges, as well as lawyers, 
 are busy men, and time for preparation is limited. 
 
 Another difficulty, which increases from year to 
 year, is the choice of a subject. We are told that 
 Augustus dealt the final blow to the Responsa Pru- 
 denium^ the "answers of the learned in the law.'' 
 
78 ADDRESSES 
 
 The probable cause was that the subjects were ex- 
 hausted. I need hardly remind you that the answers 
 of the learned in the law during the quarter of a cen- 
 tury since this Association began its invaluable work, 
 in the addresses of its presidents, the annual addresses, 
 and the papers read, have so far covered the whole 
 field of jurisprudence that the last three annual re- 
 sponses of the jurisconsults were devoted to the 
 elucidation of a single important topic of national 
 concern. It is, therefore, with much hesitancy that 
 I shall invite your attention to some observations on 
 Law and Reasonableness. 
 
 The essence and end of law are no doubt truthfully 
 expressed in the maxims: 
 
 " Law is the perfection of reason." 
 
 " Reason is the soul of the law ; and when the 
 reason of any particular law ceases, so does the law 
 itself." 
 
 " The reason and spirit of cases make law, not the 
 letter of particular precedents." 
 
 " Reason is the life of the law ; the common law 
 itself is nothing else but reason." 
 
 It is also undoubtedly true that the great body of 
 the law is founded upon the dictates of right reason, 
 natural justice, and common sense. 
 
 But, notwithstanding all this, it is an historical fact 
 that the growth and expansion of the law from primi- 
 tive custom to the present time has been a continuous 
 
LAW AND REASONABLENESS 79 
 
 struggle between the rigid rules of positive law and 
 the standard of reasonableness and common sense of 
 society in its upward march to a higher civilization ; 
 and the struggle still continues. All through the 
 centuries of the law's development in those two 
 great systems of jurisprudence which have been 
 adopted by the civilized world, the English law and 
 the Civil law, there has been a constant effort to 
 bring existing rules into harmony with advancing 
 civilization. 
 
 The phenomenon which always presents itself in 
 progressive societies may be thus described: On the 
 one hand, there is a body of legal rules which by 
 nature are stable and enduring; on the other hand, 
 there is a society with ever-changing social necessities 
 and opinions. From the very nature of these con- 
 ditions, which are permanent, there is the inevitable 
 result that the old rules of law cease to conform to 
 the new facts of life ; that they are not adapted to the 
 ever-varying views of society; and that consequently 
 they come, in part at least, to be regarded as narrow, 
 unreasonable, and out of touch with progress and 
 enlightened public sentiment. 
 
 To keep the rules of positive law as nearly as 
 possible abreast of social wants and public opinion, 
 is the difficult problem which always has and always 
 will confront progressive nations. That gulf can 
 never be entirely bridged. A stationary body and 
 
80 ADDRESSES 
 
 a moving body cannot be kept together. We can 
 only by unceasing effort narrow the chasm. Some- 
 times the spirit and temper of society are far in 
 advance of legal rules ; at other times they nearly 
 meet. Upon the expedition with which the breach 
 between law and social progress is lessened, or 
 upon keeping them close together, depend, in large 
 measure, the welfare of society and the happiness 
 of the people. In progressive societies, says Maine, 
 "it may be laid down that social necessities and 
 social opinions are always more or less in advance 
 of law. We may come indefinitely near to the clos- 
 ing of the gap between them, but it has a perpetual 
 tendency to reopen. Law is stable; the societies we 
 are speaking of are progressive. The greater or less 
 happiness of a people depends on the degree of 
 promptitude with which the gulf is narrowed." 
 
 Such being the position of the law in its relation 
 to progressive societies, what have the lawyers done 
 to help relieve the situation ? Where have they 
 stood in this long struggle between an unreasonable 
 past and a reasonable present, between a body of 
 rigid legal rules and an advancing civilization ? Are 
 they justly open to the charge of riveting the chains 
 which bind the community to customs and usages 
 it has outgrown by their devotion to technicalities, 
 legal forms, and precedents.'^ Have they stood with 
 Selden when he exclaimed, " Equity is a roguish 
 
LAW AND REASONABLENESS 81 
 
 thing " ? Have they been unmindful of the fact 
 that they are largely responsible for the existing 
 condition of the law at every stage of social prog- 
 ress, and that upon them devolves the duty, in great 
 measure, of keeping it in harmony with national 
 growth? Have they failed to realize that the law 
 is made for society, and not society for the law ; and 
 that it should be adapted, as far as possible, to meet 
 the " great, complex, ever-unfolding exigencies " of 
 life and government? 
 
 Let us first see how some of the great lawyers 
 have answered these inquiries. 
 
 It was Coke who said: "The principles of natural 
 rights are perfect and immutable, but the condition 
 of human law is ever changing, and there is nothing 
 in it which can stand forever. Human laws are 
 born, live, and die." 
 
 It was Hale who declared: "We must remember 
 
 that laws were not made for their own sakes, but 
 
 for the sake of those who were to be guided by 
 
 them. . . . He that thinks a state can be exactly 
 
 steered by the same laws in every kind as it was 
 
 two or three hundred years ago may as well imagine 
 
 that the clothes that fitted him when a child should 
 
 serve him when he was grown a man. The matter 
 
 changeth, the custom, the contracts, the commerce, 
 
 the dispositions, educations, and tempers of men and 
 
 societies change in a long tract of time, and so must 
 
 6 
 
82 ADDRESSES 
 
 their laws in some measure be changed, or they will 
 not be useful for their state and condition." 
 
 It was Hardwicke who marked out and systema- 
 tized that great body of rational and remedial rules 
 we call equity, which has done so much to keep the 
 law in touch with social progress. It was Mansfield 
 who declared that the air of England was too pure 
 to be breathed by a slave, who built up the com- 
 mercial law to meet her expanding commerce and 
 industries, and of whom Burke says : " His ideas go 
 to the growing amelioration of the law by making 
 its liberality keep pace with the demands of justice 
 and the actual concerns of the world, — not restrict- 
 ing the infinitely diversified occasions of men, and 
 the rules of natural justice, within artificial circum- 
 scriptions, but conforming our jurisprudence to the 
 growth of our commerce and of our empire." 
 
 It was Marshall who breathed into our Constitu- 
 tion the breath of life, and who declared : " This 
 provision is made in a Constitution intended to 
 endure for ages to come, and, consequently, to be 
 adapted to the various crises of human affairs. To 
 have prescribed the means by which government 
 should, in all future time, execute its powers would 
 have been to change entirely the character of the 
 instrument, and give it the properties of a legal 
 code. It would have been an unwise attempt to 
 provide, by immutable rules, for exigencies which. 
 
LAW AND REASONABLENESS 83 
 
 if foreseen at all, must have been seen dimly, and 
 which can be best provided for as they occur. To 
 have declared that the best means shall not be used, 
 but those alone without which the power given would 
 be nugatory, would have been to deprive the legisla- 
 ture of the capacity to avail itself of experience, to 
 exercise its reason, and to accommodate its legislation 
 to circumstances." 
 
 It was Story who said : " Government presupposes 
 the existence of a perpetual mutability in its own 
 operations on those who are its subjects, and a per- 
 petual flexibility in adapting itself to their wants, 
 their interests, their habits, their occupations, and 
 their infirmities." 
 
 It was Shaw who declared : " It is the great merit 
 of the common law that it is founded upon a com- 
 paratively few broad, general principles of justice, 
 fitness, and expediency, . . . generally comprehen- 
 sive enough to adapt themselves to new institutions 
 and conditions of society, new modes of commerce, 
 new usages and practices, as the progress of society 
 in the advancement of civilization may require." 
 
 Such has been the position of the lawyers in the 
 struggle between legal rules and social progress ; and 
 this position is corroborated by the history of the 
 law's development from early times. 
 
 The history of the growth and expansion of the 
 Roman and English systems of jurisprudence dis- 
 
84 ADDRESSES 
 
 closes the important part taken by the lawyers in 
 making the law more reasonable as society required. 
 The doctrines and instrumentalities which have en- 
 abled it to keep nearly abreast of the moral and 
 intellectual growth of the people have been largely 
 their work. 
 
 When Rome extended her boundaries over Italy, 
 and the rules of the civil law, embodied in the Twelve 
 Tables, became narrow and unreasonable in their 
 application to foreigners, it was the Roman juriscon- 
 sults who conceived and carried into effect a code 
 of rules which overrode the harsh civil code. They 
 based this new code upon the assumption that there 
 were certain ingredients in the law which were com- 
 mon to Rome and other Italian communities. To 
 justify this assumption, they appealed to tradition and 
 observation. " The expedient to which they resorted," 
 says Maine, "was that of selecting the rules of law 
 common to Rome and to the different Italian com- 
 munities in which the immigrants were born. . . . 
 The Jus Gentium was accordingly a collection of 
 rules and principles, determined by observation to be 
 common to the institutions which prevailed among 
 the various Italian tribes." 
 
 When this doctrine became inadequate as an instru- 
 ment for expanding the rules of the civil law for the 
 purpose of meeting the wants and aspirations of the 
 Roman people as they advanced to the conquest of 
 
LAW AND REASONABLENESS 85 
 
 the world, the Roman lawyers borrowed a theory 
 from Greek philosophy for the purpose of expanding 
 ihe Jus gentium, called the Law of Nature — a theory 
 which soon became the basic principle underlying 
 that vast superstructure known as Roman law; a 
 theory which has exerted a profound influence upon 
 English law, and upon whose foundation rest the 
 Law Merchant and modern International Law. To 
 this same theory may also be traced the principle that 
 all men are born equal, and are entitled to equal 
 protection of the laws, which is found in the Decla- 
 ration of Independence and in the Constitution of 
 the United States. 
 
 In giving expression to this theory, the Roman 
 jurisconsults said: "All nations, who are ruled by 
 laws and customs, are governed partly by their own 
 particular laws, and partly by those laws which are 
 common to all mankind. The law which a people 
 enacts is called the Civil Law of that people, but 
 that which natural reason appoints for all mankind is 
 called the law of nations because all nations use it." 
 
 The doctrine of the Law of Nature — first prac- 
 tically utilized in the administration of justice by 
 Roman jurists — whose primordial elements are uni- 
 formity, simplicity, harmony, and equality, and whose 
 broadening influence upon the jurisprudence of the 
 world has been so potent and permanent, is the doc- 
 trine of intrinsic reasonableness. It is the doctrine 
 
86 ADDRESSES 
 
 prescribed by absolute, evident, and universal reason 
 as manifested in the consent of reasonable men. It 
 consists of a body of precepts which satisfy, and are 
 in accord with, right human reason, and which are 
 binding on all mankind by virtue of their inherent 
 reasonableness. To the classical Roman lawyers, in 
 the words of Sir Frederick Pollock, " It would be 
 convenient to take ius naturale for the sum of rules 
 of conduct which ought to be received because they 
 are reasonable in themselves, and ius gentium for 
 those which are received in fact by the general con- 
 sent of civilized mankind." To the publicists of the 
 Middle Ages, he says, " the Law of Nature presented 
 itself as a rule of human conduct independent of 
 positive enactment and even of divine revelation, and 
 binding always and everywhere in virtue of its in- 
 trinsic reasonableness." The same high authority 
 declares that the Law Merchant " claimed the respect 
 and aid of local magistrates as a branch of the Law 
 of Nature, considered as a body of legal rules demon- 
 strable by natural human reason, and therefore en- 
 titled to universal obedience." And further, that 
 Gentili the pioneer, and Grotius the founder, of Inter- 
 national Law, laid its foundation on the broad and 
 universal principles of the Law of Nature. 
 
 While English jurisprudence has not adopted the 
 Law of Nature, in the sense of the civil law, as the 
 fundamental doctrine underlying the whole system, 
 
LAW AND REASONABLENESS 87 
 
 our courts have appealed to its principles, and have 
 been governed by its precepts. 
 
 They have said that positive laws are invalid which 
 contradict the Law of Nature, that it is binding in 
 all countries and at all times, and that no human 
 laws are of any validity if contrary to this. They 
 have invoked this doctrine in their assertion that acts 
 of Parliament w^hich were contrary to universal rea- 
 son and natural justice were void; that the funda- 
 mental principles of right and justice inherent in the 
 nature and spirit of the social compact restrain and 
 set bounds to the power of legislation; and that the 
 legislature cannot take away that security for personal 
 liberty and private property for whose protection the 
 government was established. Chancellor Kent ap- 
 pealed to this doctrine when he asserted that " a 
 statute is never to be construed against the plain and 
 obvious dictates of reason"; and Mr. Justice Miller, 
 when he declared : " It must be conceded that there 
 are such rights in every free government beyond the 
 control of the State. A government which recog- 
 nized no such rights, which held the lives, the liberty, 
 and the property of its citizens subject at all times to 
 the absolute disposition and unlimited control of even 
 the most democratic depository of power, is after all 
 a despotism "; and Mr. Justice Brown, when he said: 
 " It is sufficient to say that there are certain immu- 
 table principles of justice which inhere in the very 
 
88 ADDRESSES 
 
 idea of free government which no member of the 
 Union may disregard." If the judges, in their appeals 
 to the Law of Nature, have not succeeded in over- 
 throwing the principle of the omnipotence of legis- 
 lative power where it is exercised in violation of 
 natural reason and common sense, we cannot but 
 admire the lofty sense of justice by which they were 
 actuated in their protest against its full and complete 
 acceptance under all circumstances. 
 
 But the courts have gone further. They have 
 said that the Law of Nature is a part of the law of 
 England. They have struggled more and more, as 
 society has advanced in civilization, to make the law 
 conform to its teachings; to make it "the sum of 
 rules of conduct which ought to be received because 
 they are reasonable in themselves " ; to bring it into 
 harmony with natural reason as manifested in the 
 consent of reasonable men. They have incorporated 
 this doctrine of reasonableness into all branches of 
 the law. It lies imbedded in the rights of person, 
 in the rights of property, and in the rules of pro- 
 cedure. It permeates the law of contracts and negli- 
 gence. The exercise of the police power turns upon 
 it. It limits and qualifies the enjoyment of individual 
 rights. It is a kind of universal postulate underlying 
 all rules of civil conduct. 
 
 The courts have also called in aid this doctrine 
 of reasonableness to justify a departure from the 
 
LAW AND REASONABLENESS 89 
 
 strict rules of law. They have built up equity upon 
 it, and relied on its precepts for decision in doubt- 
 ful cases. They have founded the rules of constitu- 
 tional interpretation upon it. The principles of the 
 common law which are so frequently invoked by 
 the judges may be said to rest on this doctrine, — 
 those principles which Chief Justice Shaw calls "the 
 broad, general principles of justice, fitness, and expe- 
 diency." Mansfield appealed to the same doctrine 
 when he declared: 
 
 " The law of England would be a strange science 
 indeed if it were decided upon precedents only. 
 Precedents serve to illustrate principles and to give 
 them a fixed certainty. But the law of England is 
 exclusive of positive law, enacted by statute, depends 
 upon principles, and these principles run through all 
 the cases according as the particular circumstances 
 of each have been found to fall within the one or 
 other of them." 
 
 The same doctrine was invoked by Mr. Justice 
 Brewer when he said: 
 
 " But passing beyond the matter of authorities, the 
 question is essentially one of general law. It does not 
 depend upon any statute ; it does not spring from any 
 local usage or custom; there is in it no rule of property, 
 but it rests upon those considerations of right and jus- 
 tice which have been gathered into the great body of the 
 rules and principles known as the 'common law.'" 
 
90 ADDRESSES 
 
 But the lawyers have done much more than incor- 
 porate into the law the theories and doctrines by 
 which its rules have been made more rational in 
 response to social changes and advancing civilization. 
 They have devised those great remedial agencies, 
 Fictions and Equity, by which the work has been 
 largely carried on. It is almost wholly through these 
 instrumentalities that for centuries the rules of law 
 were enabled to meet the growing wants of society ; 
 for it is not until a comparatively recent period in 
 the history of jurisprudence that legislation has been 
 relied upon to any large extent as a remedial agency. 
 And in respect to legislation, it will be found that 
 the judiciary, through its power of construction and 
 interpretation, has acted as a safeguard against the 
 enforcement of unreasonable statute laws. 
 
 It was the Roman jurisconsults who resorted to 
 fictions for overcoming the severity of legal rules, 
 and reconciling the letter of the law with common 
 sense and justice. When large numbers of foreign- 
 ers flocked to Rome, the strict rule of the civil code 
 that no one but a Roman citizen could maintain 
 suit became harsh and unjust; whereupon the Roman 
 lawyers invented the fiction that if a foreigner averred 
 he was a Roman citizen, the defendant could not 
 traverse the allegation. From analogy to this Roman 
 fiction, the Supreme Court of the United States, 
 more than two thousand years afterwards, adopted 
 
LAW AND REASONABLENESS 91 
 
 the fiction that all the members of a corporation are 
 presumed to be citizens of the State which created 
 it, and that no one shall traverse this presumption. 
 
 Although legal fictions have been called rude 
 absurdities, they were, especially in the early stages 
 of jurisprudence, highly useful and beneficial instru- 
 ments for expanding the stern rules of law as society 
 demanded. " At a particular stage of social progress," 
 says Maine, " they are invaluable expedients for over- 
 coming the rigidity of law, and, indeed, without one 
 of them, the Fiction of Adoption, which permits the 
 family tie to be artificially created, it is difficult to 
 understand how society would ever have escaped 
 from its swaddling clothes, and taken its first steps 
 towards civilization." 
 
 " The supposition," declares Dicey, " that the cun- 
 ning of lawyers has by the invention of legal fictions 
 corrupted the fair simplicity of our original consti- 
 tution, underrates the statesmanship of lawyers as 
 much as it overrates the merits of early society. 
 The fictions of the courts have in the hands of law- 
 yers such as Coke served the cause both of justice 
 and of freedom, and served it when it could have 
 been defended by no other weapons. For there are 
 social conditions under which legal fictions or sub- 
 tleties afford the sole means of establishing that rule 
 of equal and settled law which is the true basis of 
 English civilization." 
 
92 ADDRESSES 
 
 It is also true that the English judges and Roman 
 jurists have really employed fictions in a much broader 
 sense, for the purpose of changing, extending, and 
 modifying the rules of law in order to bring them 
 into harmony with social progress and the actual 
 concerns of life. Upon the supposition that there 
 actually existed in the body of the law a rule which 
 would cover the facts of every case, they proceeded, 
 as cases arose, to engraft upon the old law a new 
 code. In theory, the law remained the same ; in fact, 
 it had been changed. 
 
 A marked illustration of this process is found in 
 the decisions of Lord Mansfield, who added to the 
 English law a body of rules, unknown to the common 
 law, relating to bills of exchange, promissory notes, 
 marine insurance, and other kindred subjects, to the 
 end of "conforming our jurisprudence to the growth 
 of our commerce and of our empire." 
 
 There is an interesting description of how the law 
 springs into existence through judicial decision in a 
 case where there is no record of a preceding similar 
 case, in Mr. Carter's notable address before this Asso- 
 ciation on " The Ideal and the Actual in the Law " : 
 
 " In all this the things which are plain and palpable 
 are, (i) that the whole process consists in a search to 
 find out a rule ; (2) that the rule thus sought for is the 
 just rule, — that is to say, the rule most in accordance 
 with the sense of justice of those engaged in the 
 
LAW AND REASONABLENESS 93 
 
 search ; (3) that it is tacitly assumed that the sense of 
 justice is the same in all those who are thus engaged, 
 — that is to say, that they have a common standard of 
 justice from which they can argue with, and endeavor 
 to persuade each other ; (4) that the field of search is 
 the habits, customs, business, and manners of the 
 people, and those previously declared rules which have 
 sprung out of previous similar inquiries into habits* 
 customs, business, and manners." By this method " a 
 rule is deduced which is declared to be the one which 
 the existing law requires to be applied to the case." 
 
 This process of case law legislation has been em- 
 ployed since the birth of jurisprudence. It is still in 
 active operation, and will so continue while the great 
 body of our law is unwritten or common law and but 
 a small fraction statute law. 
 
 When legal fictions, in the progress of society, be- 
 came unequal to the task of overcoming the rigidity 
 of the rules of positive law, there grew up alongside 
 of that system a body of principles known as equity. 
 This was the work of the Roman praetors and the 
 English chancellors. As the old rules became harsh 
 and unreasonable and out of harmony with civiliza- 
 tion, they gradually adopted this new and more per- 
 fect system to meet social necessities and public 
 sentiment ; a system which was " to stand side by side 
 with the law of the land, overriding it in case of con- 
 flict, as on some title of inherent superiority, but not 
 
94 ADDRESSES 
 
 purporting to repeal it." They held that the proceed- 
 ings in equity were not like the inelastic rules of law 
 established from time immemorial, but were adapted 
 to the existing state of society. 
 
 " I wonder," said Chief Justice Vaughan, who was 
 called to sit with the Chancellor in Fry v. Pointer, " to 
 hear of citing of precedents in matter of equity, for 
 if there be equity in a case, that equity is an univer- 
 sal truth, and there can be no precedent in it ; so that 
 in any precedent that can be produced, if it be the 
 same with this case, the reason and equity is the same 
 in itself; and if the precedent be not the same case 
 with this, it is not to be cited." 
 
 To which the Lord Keeper Bridgman replied : 
 " Certainly Precedents are very necessary and useful 
 to us, for in them we may find the reasons of the 
 equity to guide us; and besides, the authority of 
 those who made them is much to be regarded. We 
 shall suppose they did it upon great consideration and 
 weighing of the matter, and it would be very strange 
 and very ill if we should disturb and set aside what 
 has been the course for a long series of time and 
 ages." 
 
 Although precedents have had their influence upon 
 English courts of equity from the beginning, they 
 were not considered of binding authority. We may 
 here refer to the words of Lord Hardwicke : " When 
 the court finds the rules of law ris^ht, it will follow 
 
LAW AND REASONABLENESS 95 
 
 them, but then it will likewise go beyond them " ; and 
 of Lord Cottenham : " I think it is the duty of this 
 court to adapt its practice and course of proceeding to 
 the existing state of society, and not, by too strict an 
 adherence, to decline to administer justice, and to en- 
 force rights for which there is no other remedy. This 
 has always been the principle of this court, though 
 not at all times sufficiently attended to." 
 
 "It must not be forgotten," said Jessel, "that the 
 rules of courts of equity are not like the rules of the 
 Common Law, supposed to be established from time 
 immemorial. It is perfectly well known that they 
 have been established from time to time, — altered, 
 improved, and refined from time to time." 
 
 It is true that, both in Rome and England, equity 
 ceased in time to be expansive. It was, however, one 
 of the principal instrumentalities created by Roman 
 and English judges, by which for many generations 
 the law was expanded with social growth. 
 
 We have now reached the third, and, in modern 
 times, by far the most important remedial agency for 
 the amelioration of the law, namely, legislation. This 
 instrumentality rests upon the doctrine of legislative 
 omnipotence. In Great Britain Parliament has abso- 
 lute power. In the United States the same uncon- 
 trollable power has been vested by the people in the 
 legislature, subject to the limitations imposed by the 
 Federal and State constitutions. From the nature of 
 
96 ADDRESSES 
 
 this power it is obvious that in this field of reform 
 judicial action is limited. Let us examine briefly the 
 position of the courts with respect to this all-potent 
 remedial agency. 
 
 Before the division between the legislative and judi- 
 cial powers of the government had become so sharply 
 defined, the courts, as we have already pointed out, vig- 
 orously protested against the authority of the legisla- 
 ture to enact a valid law which was in violation of 
 natural justice and common sense. Such expressions 
 are found in judicial decisions from Lord Coke in 
 Bonham's case, who declared that " when an act of 
 Parliament is against right and reason, or repugnant, 
 or impossible to be performed, the common law will 
 control it, and adjudge such act to be void," down 
 to Mr. Justice Miller in Loan Association v. Topeka, 
 and Mr. Justice Brown in Holden v. Hardy, 
 
 Again, in their desire to make statute law reasonable 
 and accord with public opinion, the courts in early 
 times resorted to the doctrine of equitable construc- 
 tion. Upon this principle they disregarded the letter 
 of the statute, and extended its provisions to cases 
 " within the same mischief," or they excepted from the 
 statute, though covered by its terms, other cases on 
 considerations of justice and right reason. 
 
 " From this judgment and the cause of it," says Plow- 
 den in a note to Eyston v. Studd, "the reader may 
 observe that it is not the words of the law, but the 
 
LAW AND REASONABLENESS 97 
 
 internal sense of it that makes the law, and our law, like 
 all others, consists of two parts, viz., of body and soul ; 
 the letter of the law is the body of the law, and the 
 sense and reason of the law are the soul of the law. 
 . . . And it often happens that when you know the 
 letter you know not the sense ; for sometimes the 
 sense is more confined and contracted than the letter, 
 and sometimes it is more large and extensive. And 
 equity enlarges or diminishes the letter according to 
 its discretion." 
 
 Although the doctrine of equitable construction has 
 been disowned as encroaching upon the exercise of 
 legislative power, the courts still call to their aid, in 
 their efforts to make statute law conform to the dic- 
 tates of common sense, essentially the same principle 
 in another form. They now declare that a statute 
 should be construed with reference to its spirit and 
 reason. This principle is laid down by the Supreme 
 Court in Trinity Church v. United States. The ques- 
 tion in issue was the applicability of the Alien Contract 
 Labor Law to a clergyman who came to this country 
 under a contract to enter the service of a church. It 
 was conceded that the case came within the letter 
 of the law. 
 
 " It is a familiar rule," said the court, " that a thing 
 may be within the letter of the statute and yet not 
 within the statute, because not within its spirit nor 
 within the intention of its makers. This has been 
 
98 ADDRESSES 
 
 often asserted, and the reports are full of cases illus- 
 trating its application." 
 
 In support of its conclusion, the court cites from 
 its opinion in United States v. Kirby : 
 
 "All laws should receive a sensible construction. 
 . . . The reason of the law in such cases should pre- 
 vail over its letter. The common sense of man ap- 
 proves the judgment mentioned by Puffendorf, that 
 the Bolognian law which enacted ' that whoever drew 
 blood in the streets should be punished with the ut- 
 most severity,' did not extend to the surgeon who 
 opened the vein of a person that fell down in the 
 street in a fit. The same common sense accepts the 
 ruling, cited by Plowden, that the statute of ist Ed- 
 ward II., which enacts that a prisoner who breaks 
 prison shall be guilty of felony, does not extend to a 
 prisoner who breaks out when the prison is on fire, 
 * for he is not to be hanged because he would not stay 
 to be burned.' " 
 
 The courts have also employed presumptions exten- 
 sively to make statute law reasonable. There is the 
 presumption against injustice ; the presumption against 
 an absurdity or absurd consequences; the presump- 
 tion against inconvenience or hardship ; the presump- 
 tion against an impossibility; the presumption as to 
 public policy, which means that the legislature does 
 not intend to violate public morality or the principles 
 of sound public policy. These and other presumptions 
 
LAW AND REASONABLENESS 99 
 
 are resorted to where statutes are in any way doubtful 
 or ambiguous, and so open to more than one con- 
 struction, in order that they may conform to reason 
 and common sense. 
 
 The invocation of the doctrine of reasonableness 
 by the courts in aid of progress and the protection 
 of society, is strikingly illustrated in the conflict be- 
 tween legislative omnipotence and the constitutional 
 guaranties of personal liberty and equality secured 
 by the Fourteenth Amendment to the Constitution 
 of the United States. 
 
 When the Constitution was ratified in 1789, the 
 people were fearful of centralization and consolidation, 
 and hence the bill of rights embodied in the first ten 
 amendments was speedily adopted. These amend- 
 ments only restrain the national government, and 
 have no application to the States. After the close of 
 the Civil War in 1865, public opinion had changed, 
 and in 1868 the Fourteenth Amendment became a 
 part of the supreme law of the land. By its provis- 
 ions the States are prohibited from passing or enforc- 
 ing any law which shall deprive any person of life, 
 liberty, or property, without due process of law, or 
 deny to any person the equal protection of the laws. 
 
 We have, on the one hand, the State legislature 
 clothed with the police power, the taxing power, the 
 power of eminent domain, and other general powers ; 
 and on the other hand, this constitutional guaranty of 
 
100 ADDRESSES 
 
 individual liberty and equality. In dealing with this 
 situation the Supreme Court has declared that there 
 is a boundary line beyond which the legislature will 
 not be permitted to pass; and this line is established 
 by the application of the doctrine of reasonableness. 
 It is held that the exercise by the legislature of its 
 great powers in an unreasonable way is not due pro- 
 cess of law, or equal protection of the laws, within the 
 meaning of the Fourteenth Amendment. In reaching 
 this position, it became necessary for the court to lay 
 down a principle which is far-reaching, and fraught 
 with momentous consequences, namely, that the ques- 
 tion of what is reasonable is a judicial and not a legis- 
 lative question. As this question was first left by the 
 court in Munn v. State of Illinois, it might have been 
 Supposed that it was for the legislature to determine 
 what is reasonable. In the subsequent case, however, 
 of Chicago Railway Company v. Minnesota, it was de- 
 cided that the legislature could not authorize the im- 
 position of unreasonably low rates, since such action 
 would deprive railroads of their property without 
 due process of law. And in later cases it has been 
 authoritatively adjudicated that the question of what 
 is reasonable is for the court and not for the legisla- 
 ture. In Covington Turnpike Company v. San/ord, 
 the court declared : 
 
 " There is a remedy in the courts for relief against 
 legislation establishing a tariff of rates which is so 
 
LAW AND REASONABLENESS 101 
 
 unreasonable as to practically destt-cy-the Valud :bf 
 the property of companies engaged in thie^ carrying 
 business, and that especially mfty-' the courts <pf ;tfte; 
 United States treat such a question as a judicial 
 one, and hold such acts of legislation to be in con- 
 flict with the Constitution of the United States, as 
 depriving the companies of their property without 
 due process of law, and as depriving them of equal 
 protection of the laws." 
 
 The paramount inquiry by the Supreme Court in 
 all cases involving the exercise of the police power 
 is whether the action of the legislature is reasonable 
 under the circumstances, or an arbitrary and unreason- 
 able interference with individual liberty. An admira- 
 ble summary of the court's views on this important 
 subject is found in Lawton v. Steele: 
 
 " To justify the State in thus interposing its author- 
 ity in behalf of the public, it must appear, first, that 
 the interests of the public generally, as distinguished 
 from those of a particular class, require such interfer- 
 ence ; and, second, that the means are reasonably nec- 
 essary for the accomplishment of the purpose, and not 
 unduly oppressive upon individuals. The legislature 
 may not, under the guise of protecting the public 
 interests, arbitrarily interfere with private business, 
 or impose unusual and unnecessary restrictions upon 
 lawful occupations. In other words, its determination 
 as to what is a proper exercise of its police powers is 
 
102 ADDRESSES 
 
 hot fi:nal dr^c^ond but is subject to the supervision 
 
 pf the. cpurisL." . ,.. 
 
 : • <Vt;tbe close, ot the opinion in Holden v. Hardy, 
 after an elaborate review of the cases and underlying 
 principles, the court said : 
 
 " The question in each case is whether the legisla- 
 ture has adopted the statute in exercise of a reason- 
 able discretion, or whether its action be a mere excuse 
 for an unjust discrimination, or the oppression or spo- 
 liation of a particular class." 
 
 So, likewise, classification by the legislature of cor- 
 porations or trades for the purposes of taxation or 
 regulation must be reasonable. As the court de- 
 clared in Railway Company v. Ellis, upon full con- 
 sideration of this subject : 
 
 Classification "must alwajrs rest upon some differ- 
 ence which bears a reasonable and just relation to the 
 act in respect to which the classification is proposed, 
 and can never be made arbitrarily and without any 
 such basis. ... It is apparent that the mere fact 
 of classification is not sufficient to relieve a statute 
 from the reach of the equality clause of the Four- 
 teenth Amendment, and that in all cases it must 
 appear not only that a classification has been made, 
 but also that it is one based upon some reasonable 
 ground — some difference which bears a just and 
 proper relation to the attempted classification — and 
 is not a mere arbitrary selection." 
 
LAW AND REASONABLENESS 103 
 
 The standard of reasonableness is also applied to 
 legislative acts establishing rules of procedure. To 
 constitute due process of law such rules must " be 
 reasonably suitable to the nature of the case." For 
 example, in Wheeler v. Jackson it was held that a 
 statute of limitations must not unreasonably limit 
 the opportunity to enforce a right by suit. 
 
 Our highest form of statute law is the Federal 
 Constitution. The Roman jurists tell us that each 
 nation is governed partly by its own particular laws 
 and partly by laws ordained by natural reason, which 
 are common to all nations. So with us, each State is 
 governed partly by its own particular laws, and partly 
 by the paramount law of the Constitution which is 
 common to all the States. And with respect to this 
 paramount law the Supreme Court has pursued a 
 method of interpretation which conforms to natural 
 reason. Recognizing that the supreme law of this 
 great cluster of States must harmonize with national 
 growth, its canons of construction may be said to 
 rest upon the precepts of the Law of Nature, upon 
 the doctrine of intrinsic reasonableness. They are, 
 in substance, a body of rules demonstrable by nat- 
 ural human reason. A constitution, it is held, is a 
 frame of government intended to endure for ages. 
 It is not a rigid code, but a declaration of general 
 principles. It is not governed by the rules of posi- 
 tive law, nor by those which apply to ordinary statutes, 
 
104 ADDRESSES 
 
 charters, and private writings. It is to be construed 
 fairly, liberally, and on broad, general lines, in order 
 that it may accomplish the great purposes of its 
 founders, and carry into effect the principles of gov- 
 ernment for which it was organized. It presupposes 
 a " perpetual mutability " in society, and a " perpet- 
 ual flexibility " in adapting itself to the national 
 wants, habits, and aspirations. " The powers which 
 are conferred, the restrictions which are imposed, 
 the authorities which are exercised, the organization 
 and distribution thereof which are provided, are in 
 each case for the same object," — the common benefit, 
 security, and happiness of the people. " It is a con- 
 stitution we are expounding," exclaimed Marshall ; 
 and Marshall's decisions are the incarnation of ra- 
 tional interpretation and common sense. 
 
 Such has been the attitude of the courts and 
 lawyers in the ever-existing struggle between the rules 
 of positive law and advancing civilization. They 
 have striven to keep the law in harmony with social 
 progress, to make it more reasonable as social neces- 
 sities and public sentiment have demanded. Ever 
 recognizing that "the matter changeth, the custom, 
 the contracts, the commerce, the dispositions, educa- 
 tions, and tempers of men and societies," they have 
 conceived theories, invoked doctrines, and inaugurated 
 instrumentalities to relieve the situation. They have 
 carried on judicial legislation from the infancy of the 
 
LAW AND REASONABLENESS 105 
 
 law in order that it might advance with society. By 
 the adoption of broad and elastic rules of interpre- 
 tation, they have maintained, in large measure, the 
 supreme law of the land in harmony with national 
 growth ; and they have stood as a barrier against the 
 enforcement of capricious and arbitrary laws enacted 
 by the great remedial agency upon which the com- 
 munity now mainly relies. 
 
 The history of jurisprudence, as we have seen, finds 
 society, in progressive nations, always in advance of 
 the law. The evolution of law follows, and never 
 precedes, the evolution of society. Solon declared he 
 gave the Athenians the only laws they were fitted to 
 receive. Nor can the law arrest social progress, though 
 it may temporarily retard it. The great forces which 
 govern and give direction to the life of a people lie 
 beyond the control of legal rules. The law must 
 accept the situation. It can only strive to make its 
 rules conform to social conditions. It can only 
 "move towards existing conceptions of right, justice, 
 humanity, reason, and public policy." Nor can the 
 law materially change actual conditions. It is impos- 
 sible to legislate society into righteousness, justice, or 
 freedom. It took a hundred years for the Norman 
 kings to force the feudal system upon England ; and 
 at the end of that long conflict the great body of 
 ancient customs and usages which were congenial to 
 the English people remained undisturbed. Commerce 
 
106 ADDRESSES 
 
 and inventions have brought mankind in closer touch 
 than ever before. We hope that war in time will 
 cease ; but it must not be forgotten that arbitration 
 will not become an enforceable canon of international 
 law until the great mass of the civilized people of the 
 world believe in and desire that method of settling 
 controversies between nations. 
 
 The purpose and end of law are the welfare of 
 society and the happiness of the people. The law 
 should always be viewed from the standpoint of so- 
 ciety, and not from the standpoint of the law itself. 
 Society is entitled to have such laws as it desires, and 
 it will obey none other. The law is made for society, 
 and not society for the law. The interests of society 
 are primary; the interests of the law secondary. 
 Society is the master, and the law its handmaid. The 
 law must march with society; the Constitution must 
 march with the nation. 
 
 In our day and generation we are confronted with 
 the same problem of adapting the old rules of law 
 to the new facts of life ; of keeping them in accord 
 with commercial and industrial growth and national 
 development. There is no way of making the law 
 sufficiently elastic and mutable to meet fully the ever- 
 varying wants of society in the presence of an expand- 
 ing civilization. Our duty lies in the effort to make 
 it, as far as possible, fit and suitable to new conditions 
 as they present themselves. 
 
LAW AND REASONABLENESS 107 
 
 Almost every important case covers a group of 
 facts which are different from any other recorded case. 
 Analogies, settled principles, cases nearly similar, may 
 help, but they neither satisfy the mind nor meet the 
 real issue. If it be a constitutional question, there are 
 probably included in that group new facts or circum- 
 stances which represent national growth and changed 
 social relations. These are the important things to 
 consider in reaching a proper conclusion, if the law 
 is to be kept in harmony with civilization. 
 
 So, too, a case may arise which includes in its 
 group of facts new commercial or industrial condi- 
 tions. In the determination of such a case society 
 demands that these new elements receive recogni- 
 tion, that the law may conform to the actual business 
 of life. 
 
 It is by grappling with the great living realities 
 that legal conclusions are reached which meet social 
 necessities. Laws should be interpreted and decisions 
 rendered in the spirit of the present, not of the past. 
 Logic and due regard for precedent should be com- 
 bined with the statesman's breadth of vision. Con- 
 sistency may be extended too far; it is sometimes 
 a doubtful virtue. Had Jefferson been consistent, we 
 should have lost the Louisiana purchase. Had Lin- 
 coln been consistent, slavery would not have been 
 abolished. The obligation we owe is not to the past, 
 but to the present. Ancient civilization looked to the 
 
108 ADDRESSES 
 
 past; Christian civilization looks to the future. The 
 ancient idea of a perfect primitive society is a poetic 
 fiction; the modern idea of a society growing more 
 humane, more just, more reasonable, is a reality. 
 
 In this spirit let us carry on the work which society 
 has largely committed to our hands. Recognizing the 
 usefulness of legal forms and precedents, may we ever 
 hold fast to the great truth that reason is the life and 
 soul of the law. May we rise to the lofty conceptions 
 of the Law of Nature, — harmony, simplicity, uni- 
 formity, — and may we call to our aid her precepts of 
 universal reason ; and, extending our vision to law as 
 the order of the universe, may we draw inspiration 
 from Hooker's sublime words : " Her seat is the 
 bosom of God, her voice the harmony of the world, 
 all things in Heaven and Earth do her homage, — the 
 very least as feeling her care, and the greatest as not 
 exempted from her power." 
 
RHODE ISLAND 109 
 
 CONTRIBUTIONS OF RHODE ISLAND 
 TO THE AMERICAN UNION 
 
 Address delivered at the Louisiana Purchase Exposition at St. Louis 
 on Rhode Island Day, October 5, 1904. 
 
 Mr. President, Your Excellency, 
 
 Ladies, and Gentlemen: 
 
 THE magnitude and character of this com- 
 memoration of a national event, next only 
 in importance to the Declaration of In- 
 dependence, the adoption of the Constitution, and 
 the Civil War, are in harmony with the lofty senti- 
 ment which inspired it. Fifteen years after the adop- 
 tion of the Constitution, the United States acquired 
 the vast domain embraced within the Louisiana Pur- 
 chase. Under the Federal system then established, 
 this wilderness has been transformed into twelve 
 flourishing States, with a residue of territory soon 
 to become States. 
 
 The marvellous spectacle which is here presented 
 is simply the expression in material form of the patri- 
 otic gratitude of the great people who now dwell 
 within these boundaries, — gratitude for the provi- 
 dential circumstances which led to the acquisition of 
 this territory, for a form of government under whose 
 
110 ADDRESSES 
 
 fostering care and protecting arm the people were 
 enabled to organize into self-governing communities 
 and become incorporated into this sisterhood of 
 States; gratitude for the liberty and enlightenment 
 and all the countless blessings which have flowed 
 from a hundred years of membership in the Ameri- 
 can Union. Surely the grandeur of this celebration 
 rises no higher than the sentiment which gave it 
 birth. 
 
 It is the spirit of nationality that pervades and 
 animates this scene. Beneath the energy and daring 
 which converted this tract of forest into a moving 
 world of civilization and art, beneath the magni- 
 tude and comprehensiveness of this undertaking 
 and the splendor of its execution, beneath this 
 gathering of nations, States, and congresses, we 
 see only the reflection of the love of America 
 and her institutions. 
 
 These structures of imposing architecture, with 
 their wealth of statue and column; these land- 
 scapes and gardens, cascades and fountains; this 
 object-lesson of man's handiwork, progress, and 
 achievements; this assemblage of the world's prod- 
 ucts, processes, and resources, of the best works in 
 every department of human activity, — art, science, 
 invention, industry, agriculture, education, — all these 
 wonderful creations of form and color, harmony and 
 beauty, were conceived in the spirit of patriotism 
 
RHODE ISLAND 111 
 
 and dedicated to the education and advancement of 
 all nations, tribes, and races. 
 
 In the promotion of material progress, the evo- 
 lution of new ideas, the elevation of artistic and 
 industrial standards, through this commingling of 
 different peoples in friendly competition ; in the por- 
 trayal of the steps by which nations may advance 
 through this object-lesson of all grades of civiliza- 
 tion ; in the attainment of a higher and broader cul- 
 ture through the educational forces which are here 
 gathered; in the unity and coincidence of thought 
 and development of the human race which these 
 exhibits inculcate ; in the common brotherhood of 
 man and universal peace of which this Exposition is 
 the exponent and herald, — we behold teachings and 
 results which are in harmony with the lofty concep- 
 tion they represent, — the American Union. 
 
 In the making of that Union which inspired this- 
 commemoration, Rhode Island has borne a distin- 
 guished part. It required two pilgrimages to solve 
 the problem of free government. The compact on 
 board the Mayflower must be supplemented by the 
 compact on the shores of Narragansett Bay, before 
 we reach the foundations on which rests the union 
 of these States. To a democratic theocracy clothed 
 with civil power, Rhode Island added the vital and 
 saving element of untrammelled religious freedom,, 
 the absolute separation of Church and State, the 
 
112 ADDRESSES 
 
 declaration of intellectual liberty of thought and 
 speech in its modern and broadest sense. No Fed- 
 eral Union could have been formed, or, if formed, 
 have long survived, without the introduction into the 
 Constitution of this master principle which Rhode 
 Island, one hundred and fifty years before, incorpo- 
 rated for the first time into a civil government. 
 
 Religion was the most potent force which entered 
 into colonial life. It held society together. It shaped 
 the destiny of the people. It was religion that drove 
 our forefathers from England. It was the fear of a 
 church establishment, next to the Stamp Acts, which 
 led to the separation from the mother country. It 
 was the apprehension of the exercise of authority in 
 religious concerns that almost wrecked the Consti- 
 tution, and its adoption was finally secured only 
 with the understanding that this danger would be 
 speedily removed by amendment. 
 
 In the existing religious intolerance and diversity 
 of sects there was an element of disintegration which 
 all the wisdom and statesmanship of the framers could 
 not meet, and which could be overcome only by the 
 recognition of the fundamental truth on which Rhode 
 Island was founded. It requires only the statement 
 to carry conviction that, on any other basis than 
 Rhode Island soul liberty, the attempt would have 
 proved fruitless to unite in Federal bonds the Puri- 
 tans of Massachusetts, the Quakers of Pennsylvania, 
 
RHODE ISLAND 113 
 
 the Catholics of Maryland, the High Churchmen of 
 New York, the Dutch Protestants of New Jersey, 
 the Cavaliers of Virginia, the Huguenots of South 
 Carolina, and the Methodists of Georgia. 
 
 The Rhode Island doctrine of religious freedom 
 stands as the first amendment to the Federal Consti- 
 tution, and is incorporated into the organic law of 
 every State. This is the immortal principle which 
 Rhode Island has added to the structure of our gov- 
 ernment, to the making of America. In its expan- 
 sion and irradiation, there is found the cohesive force 
 which has perpetuated this union of States. In the 
 absence of this instrumentality, it would have been 
 impossible to weld together the heterogeneous popu- 
 lation of this country, drawn from so many nations 
 and races, differing in language, religion, habit, and 
 political ideas, into one homogeneous Federal Union, 
 one American people. It is not our geographical 
 position, natural resources, distinctions of race, which 
 have made America, for other nations have had simi- 
 lar advantages ; but it is the energy, the incentive, the 
 freedom from discord, the desire to know and excel in 
 everything, derived from the intellectual liberty of 
 which Rhode Island was the first example and fore- 
 runner. If, in this festival of the world's progress, 
 the achievements, wealth, and power of the United 
 States bear a most favorable comparison with other 
 countries, it is to the great principle which Rhode 
 
114 ADDRESSES 
 
 Island implanted into our institutions that we must 
 look for the underlying and potent cause. 
 
 But what Rhode Island first gave to the world has 
 a deeper and broader significance. Religious liberty 
 was a turning-point in universal history. It was the 
 beginning of modern government. It stands " in the 
 background of every democratic struggle in Europe." 
 Upon the tomb of Jefferson, in the epitaph written by 
 himself, his authorship of *' the statute of Virginia for 
 religious freedom," one hundred and fifty years after 
 Roger Williams, is ranked next in importance to his 
 authorship of the Declaration of American Independ- 
 ence. The Columbian Exposition, upon a comparison 
 of the world's achievements, brought in the verdict: 
 " Toleration in religion, the best fruit of the last four 
 centuries." In the presence of the far-reaching and 
 momentous consequences which have flowed from 
 this doctrine of soul liberty, Rhode Island is entitled 
 to high distinction among her sister States, and her 
 founder to the imperishable honor, admiration, and 
 gratitude of all mankind. 
 
 There is another doctrine, first promulgated by 
 Rhode Island, which has proved important to the sta- 
 bility of the American Union. The novel construc- 
 tive feature which the framers added to the science of 
 government, and embodied in the Constitution, was 
 the judiciary. The keystone of this branch of the gov- 
 ernment resides in the power of the Supreme Court 
 
RHODE ISLAND 115 
 
 to declare what the organic law is, and thus to hold in 
 check legislative omnipotence. This power finds ex- 
 pression in the doctrine that the Supreme Court may- 
 declare unconstitutional and void an act of the legis- 
 lature. Seventeen years before Marshall, in Marbitry 
 V. Madison, established this doctrine, the same prin- 
 ciple was, for the first time, enunciated by the Supe- 
 rior Court of Rhode Island in Trevett v. Weeden ; 
 and the reasoning of Varnum, in his masterly argu- 
 ment in support of this judicial prerogative, is closely 
 followed by Marshall in his opinion. It is also an 
 interesting circumstance which may be noticed in this 
 connection, that in 1639 the town of Portsmouth ap- 
 pointed a court with a jury of twelve men " to doo 
 right betwixt man and man " — the first act known to 
 colonial history which separated the judicial from the 
 executive and legislative branches of the government. 
 But the contributions of Rhode Island to the 
 American Union are of wider import. Roger Wil- 
 liams was the first modern statesman, and Rhode 
 Island was the first modern democracy. She was 
 more than a century in advance of her time. For 
 her early government there was no precedent. It 
 was a novel experiment, — an anomaly in history. 
 The ablest statesmen and scholars of the time de- 
 clared that such institutions were subversive of social 
 order. The principles on which Rhode Island was 
 founded have become the cardinal principles of free 
 
116 ADDRESSES 
 
 government. She gave these principles to our politi- 
 cal system, since she was the earliest to incorporate 
 them into a civil compact. 
 
 Rhode Island was founded upon self-government, 
 religious freedom, human equality, and justice. De- 
 nying the power of the Crown to confer sovereignty 
 by right of discovery, she derived title to her territory 
 by direct purchase from the Indians, by the deed 
 of submission of the great sachems in 1643, trans- 
 ferring the jurisdiction over the Narragansett lands 
 to the King of England, and by the King's con- 
 firmation of title in the colonists by the charter of 
 1663. 
 
 The Providence compact of 1637, in which the 
 inhabitants submitted themselves to a government 
 " only in civil things," is the earliest written instru- 
 ment of a free government. It was a government 
 limited to civil powers vested in the body of free- 
 men upon terms of absolute equality. The code of 
 1647, adopted by the General Assembly of all the 
 people upon the union of the towns for mutual 
 protection under the first charter, in its declaration 
 of the principles of a free government, its bill of 
 rights, its humane spirit, its comprehensiveness, 
 boldness, and simplicity, anticipated by more than 
 a century the legislation of the other colonies. 
 Here was laid down, for the first time, the funda- 
 mental doctrine which is subsequently found in the 
 
RHODE ISLAND 117 
 
 Declaration of Independence, and which has become 
 the basic tenet of democratic institutions, — that gov- 
 ernment rests upon the " free and voluntary consent 
 of all or the greater part of the jFree inhabitants." 
 It contained provisions for referring all laws back 
 to the people for confirmation or rejection. It was 
 declared to be "a wholesome liberty for the whole 
 or major parte of the free inhabitants to consider 
 laws made by the Commissioners' Courts ; and upon 
 finding discommodity in any law made by the sayd 
 Courts, then orderly to show their dislike, and so 
 to invalidate such law." We have here the first 
 example in this country of a Federal Union. It was 
 composed of independent towns. We have here, also, 
 the first example of the modern doctrine of referen- 
 dum, which was called a " wholesome liberty." 
 
 These novel and advanced doctrines led the his- 
 torian Bancroft to observe with truth : " Had the 
 territory of the State corresponded with the impor- 
 tance and singularity of the principles of its early 
 existence, the world would have been filled with 
 wonder at the phenomena of its history." If our 
 Federal Union has been perpetuated for more than 
 a century through the breadth of its liberty and the 
 discipline of its people in the art of self-government, 
 then Rhode Island should be accorded special recog- 
 nition on this day for the "lively experiment" she 
 inaugurated on the shores of Narragansett Bay one 
 
118 ADDRESSES 
 
 hundred and fifty years before the adoption of the 
 Federal Constitution. 
 
 The great preparatory step to the formation of 
 the Federal Union was the Revolutionary War. In 
 the events which led to that war and its successful 
 termination, Rhode Island took a leading part. Her 
 practical independence of the Crown and her early 
 institutions had bred an intensely democratic spirit. 
 She was foremost in resisting the encroachments of 
 the mother country and in her assertion of complete 
 independence. Two months before the Declaration 
 of Independence, Rhode Island severed her alle- 
 giance to the British Crown. She was the first sover- 
 eign State. Her opposition to the Stamp Acts was 
 the earliest and most violent. She committed the 
 first overt act of resistance. She shed the first 
 blood of the Revolution in the capture and burn- 
 ing of the Gaspee. Her privateers, manned by her 
 intrepid seamen, were the scourge of British com- 
 merce. Her subscriptions to the Continental loans 
 were, relatively to her population and wealth, far in 
 excess of those of any other Colony. She was the 
 first State to take formal action respecting a Con- 
 tinental Congress, and the first to elect delegates. 
 Six months before Patrick Henry exclaimed in the 
 Virginia Convention, " The war is inevitable — and 
 let it come," Stephen Hopkins of Rhode Island 
 declared in the first Continental Congress, which 
 
RHODE ISLAND 119 
 
 sought only "a redress of grievances" by petition: 
 *' Powder and ball will decide this question, and any 
 of you who cannot bring your minds to this mode 
 of adjusting the question had better retire in time." 
 It was through the efforts of Rhode Island that the 
 Continental Congress passed the first act creating 
 an American navy, and its command was placed 
 in the hands of a Rhode Island officer. At the 
 close of the Revolutionary War General Greene 
 ranked next to Washington. It was one Rhode 
 Island Commodore Perry who, after the Battle of 
 Lake Erie, wrote those words which have since 
 become the inspiration and motto of the American 
 navy : " We have met the enemy, and they are 
 ours." It was another Rhode Island Commodore 
 Perry who carried western civilization to Japan. 
 
 It is not strange that Rhode Island deliberated 
 longer than the other States before adopting the 
 Federal Constitution, in the absence from that instru- 
 ment of a bill of rights securing the personal liberty 
 for which she had ever struggled, and which was 
 the corner-stone of her institutions. If she hesitated, 
 something must be pardoned to the spirit of liberty. 
 It should also be borne in mind that ratification 
 was secured in many of the States only by slender 
 majorities, and with the understanding that the first 
 ten amendments would be speedily adopted. Since 
 her admission, no other State has shown a greater 
 
120 ADDRESSES 
 
 devotion to the Union, nor a loftier patriotism in 
 the hour of trial. 
 
 There are other features in Rhode Island's history 
 which closely touch the life and well-being of the 
 nation. It was commerce and the necessity of its 
 regulation which led to the adoption of the Federal 
 Constitution. Since the adoption, the unifying in- 
 fluences of commerce, trade, and manufactures have 
 promoted a national spirit, cemented the bonds of 
 union, and made us one people. In commerce and 
 manufactures Rhode Island is pre-eminently distin- 
 guished. The sea loves freedom, and freedom loves 
 the sea. Her geographical features, combined with 
 her democratic institutions, shaped and controlled 
 the activities of her people. They fostered a com- 
 mercial spirit, and her beautiful bay invited the 
 commerce of the world. They bred a sturdy, inde- 
 pendent, enterprising, seafaring race, with the liberal 
 spirit and hospitality which are born of the sea. In 
 the French and Spanish wars her privateers swept 
 the main, and her annals are full of daring deeds. 
 At the close of the eighteenth century the sails 
 of her merchantmen whitened every ocean, and her 
 merchant princes brought riches and culture to the 
 State. When her commerce was destroyed by forces 
 beyond her control, she turned with the same en- 
 terprising spirit to her rivers and waterfalls for 
 the development of manufactures. From a race of 
 
RHODE ISLAND 121 
 
 ship-builders and merchants, she became a race of 
 mill-builders and manufacturers. In the person 
 of Samuel Slater she founded the cotton industry 
 of the country. She is the birthplace and home of 
 American manufactures. From the feeblest of the 
 Colonies and the smallest in territory, she has be- 
 come relatively the greatest State in population 
 and wealth. Within her borders are found all the 
 elements which enter into a free, enlightened, and 
 prosperous commonwealth. She stands in the front 
 rank of progress, not alone in material things, but 
 in those which are higher, — the liberal spirit, hospi- 
 tality, and culture of her people. In the industrial 
 and mechanical arts, in invention, in the skill of 
 her artisans, she takes a leading position. In the 
 fashioning of silver and gold she is unexcelled. In 
 the manufacture of cotton, wool, machinery, tools, 
 and other products, she has few rivals. In full sym- 
 pathy and accord with the sentiment which inspired 
 this Exposition, and with its aim and purpose, she 
 has brought here her best works in the industrial 
 arts and other exhibits of a higher character, illus- 
 trative of many phases of the life of her people and 
 the lines along which they have travelled in reaching 
 their present high plane of development. But the 
 noblest exhibit which Rhode Island brings to this 
 commemoration of a century of membership in the 
 American Union is her history. 
 
122 ADDRESSES 
 
 This Federal Union has stood for one hundred and 
 fifteen years. It has surmounted the gravest peril 
 to which it was exposed, — a disputed sovereignty. 
 It has proved to be the highest and most perfect 
 form of government. It combines the power and 
 strength of a great nation with local self-govern- 
 ment and the largest liberty. It has the capacity 
 of assimilating many different races, and moulding 
 them into one homogeneous people. It has added 
 State after State to the Union, and its territory now 
 stretches from ocean to ocean and to possessions 
 beyond. It has demonstrated the adaptability of a 
 Federal system to extend over a continent; and in 
 the union of these imperial commonwealths it has 
 afforded a model and a precedent for the federation 
 of the world. 
 
 The era of constructive government has passed. 
 The struggles of our fathers have ended. Inde- 
 pendence, liberty, and a stable Federal compact are 
 accomplished facts. We are a nation in all things 
 which concern the general welfare, while the individ- 
 ual is protected by the organic law which covers 
 every known personal right. The system has been 
 perfected. The structure is complete. Our con- 
 tinued safety no longer lies in adding to or chang- 
 ing the framework of our government. It is not 
 the American Union or democracy which is now 
 on trial, but the American people. 
 
RHODE ISLAND 123 
 
 The grave questions which confront society to- 
 day are economic and industrial rather than political. 
 They involve the regulation and equalization of social 
 conditions. These issues lie outside of legislation. 
 They rest in the domain of morals. Government 
 and laws have their limitations. They cannot make 
 wealth without labor. They cannot make men of 
 equal capacity and energy. If these questions seem 
 insoluble, if the outlook at times appears dark, let 
 us take courage and inspiration from the seemingly 
 insurmountable obstacles which our fathers overcame 
 in the making of the nation. Let the mind run 
 back to the midnight winter of Valley Forge; to 
 the hour when the Constitution hung trembling in 
 the balance; to the time when brother and brother 
 throughout the land were divided into hostile camps. 
 
 Deeper than the logic of the rights of capital and 
 labor, deeper than the academic discussion of individ- 
 ualism and socialism, the solution of these questions 
 will be found in the broad humanity, the sense of 
 fairness and justice, of the American people; just as, 
 in the building of the nation, we discovered that 
 beneath the logic of constitutional sovereignty, be- 
 neath the final analysis of political issues, our safety 
 lay in the intelligent judgment and sound sense of the 
 great body of the people. 
 
 The same broad and liberal spirit that made us a 
 nation must be directed to the social and industrial 
 
124 ADDRESSES 
 
 problems of the time. As it was the spirit of national 
 unity that built up the Union, so it will be the spirit of 
 humanity which will preserve society. As the nation 
 is one and indivisible, so the whole people are one and 
 indivisible. The well-being of the entire community 
 is inseparable from the well-being of each individual 
 of which it is composed. All classes are indissolubly 
 bound together. When we fail to realize this truth, 
 we become un-American, — a class apart. Our destiny 
 lies hidden in the spirit which teaches that we cannot 
 be of the rich unless we are of the poor, we cannot be 
 of the capitalist unless we are of the wageworker, we 
 cannot be of the North unless we are of the South, 
 we cannot be of America unless we are of the world. 
 This is the true American spirit which made the 
 nation and will transmit it to our posterity. This is 
 the realization of the great lesson which this Expo- 
 sition inculcates, — the unity of the human race and 
 the ties which bind us to all mankind. 
 
THE PROBLEM OF GOVERNMENT 125 
 
 AMERICA'S SOLUTION OF THE PROBLEM 
 OF GOVERNMENT 
 
 Fourth of July Oration delivered in Faneuil Hall before the City 
 Council and Citizens of Boston at the Celebration of the One 
 Hundred and Twenty-ninth Anniversary of the Independence 
 of the United States, July 4, 1905. 
 
 Mr. Mayor and Fellow Citizens: 
 
 ON the Fourth of July, 1776, our fathers 
 ceased to be colonists of Britain, and be- 
 came an independent people. On that day 
 the representatives of the United States of America 
 in General Congress assembled, at the City of Phila- 
 delphia, declared that the thirteen united Colonies 
 possessed "full power to levy war, conclude peace, 
 contract alliances, establish commerce, and to do all 
 other acts and things which independent States may 
 of right do." 
 
 On that day, upon a new continent, and upon a 
 magnitude hitherto unknown, was begun, in the 
 w^ords of Bryce, " the most remarkable experiment 
 in government the world has yet witnessed." 
 
 The history of mankind for three thousand years 
 pointed against the success of this experiment. The 
 teachings of philosophers and statesmen of all ages 
 
126 ADDRESSES 
 
 foretold its failure. Many of our own great leaders 
 were distrustful of the result. 
 
 One hundred and twenty-nine years have passed 
 since that eventful scene in Independence Hall, and 
 lo ! we now behold, as the outcome of this experi- 
 ment, the fairest picture of government which ever 
 met the eye of man. Oh, that the great patriots 
 of this storm centre of Revolution might look down 
 upon this scene! Would that the heroic band who 
 signed the Declaration might gaze upon their country 
 to-day ! Would that all the great founders of the Re- 
 public might behold this United States of America 
 on this Fourth of July, 1905 ! 
 
 Imagine the "transports of enthusiasm" of John 
 Adams, as, through "the rays of ravishing light and 
 glory," he finds his prophecy fulfilled a thousand iold. 
 Picture to yourselves the thoughts of Otis — that 
 " flame of fire " in whom " Independence was born '* 
 
 — as he perceives the "liberties" which the people 
 here enjoy! Call to your minds, as he looks upon 
 this wonderful progress of American freedom, the 
 joyous emotions of that proscribed and inflexible 
 patriot statesman, Samuel Adams, whom no fear of 
 death could induce " to abandon, the righteous cause 
 of his country." Think of the exaltation of John 
 Hancock, could he look down upon us in this hour 
 
 — he who put the question, " Shall the Declaration 
 be adopted ? " and who, at the risk of life and fortune. 
 
THE PROBLEM OF GOVERNMENT 127 
 
 affixed his imperishable signature to that Charter of 
 Liberty. With what an overwhelming sense of grati- 
 tude would Jefferson witness the triumph of the 
 immortal principles of the Declaration in the New 
 World, and their seemingly rapid conquest of the 
 Old ! What feelings of proud satisfaction would fill 
 the lofty soul of Hamilton as he surveys the stability, 
 the elasticity, and the reserved strength of the Con- 
 stitution after the lapse of more than a hundred 
 years ! Conceive the joy of Franklin as he realizes 
 the commanding position of the United States among 
 the nations of the earth, and those splendid achieve- 
 ments of American diplomacy which are fast making 
 this country the arbiter of the peace and destinies 
 of the world! And last, and greatest of all, let us 
 contemplate Washington as he gazes upon the power, 
 the renown, and the grandeur of his country to-day, 
 and contrasts it with the America of the Revolu- 
 tion, or the America as it last met his mortal vision, 
 — a peaceful, prosperous, progressive, law-abiding, 
 enlightened democracy of eighty millions of people, 
 extending under the Federal Constitution over a 
 continental area, embracing forty-five great States 
 and island possessions which circle half the globe! 
 
 On this anniversary of the nation's birth we may 
 well ask ourselves what is the cause of all this — what 
 is the explanation of this American phenomenon in 
 government which has so astonished the world, and 
 
128 ADDRESSES 
 
 upset all the teachings and predictions of European 
 thinkers and statesmen ? How has it happened that 
 the United States, in a manner and upon a scale 
 hitherto unknown, has solved this problem of govern- 
 ment, — the most difficult and complex of all human 
 problems, and yet the most momentous, since upon 
 the institutions of a country depend the well-being 
 and happiness of the people? There must be some 
 explanation, some underlying cause. Two powerful 
 nations, one in the Old World and the other in the 
 New, occupying immense tracts of territory, started 
 together more than a century ago to solve, upon a 
 vast scale, the problem of government. Why has 
 Russia failed and America succeeded ? Has this 
 country discovered a new brand of government as 
 well as of diplomacy ? 
 
 The solution of this problem becomes the more re- 
 markable when we reflect that the United States has 
 apparently disregarded, in the structure of its govern- 
 ment, every previously recognized canon of stability 
 and unity. It has ignored the strength and personal 
 loyalty of monarchy, the wisdom and conservatism of 
 aristocracy. It has not depended upon the superior 
 knowledge, experience, and leisure of any class. It 
 has taken, historically speaking, the two weakest forms 
 of government, and created the strongest political or- 
 ganization in the history of mankind. Philosophers 
 have ever told us that a democracy is fickle, short- 
 
THE PROBLEM OF GOVERNMENT 129 
 
 lived, and generally corrupt and tyrannical. They 
 have also said that a Federal Union, from its inherent 
 nature, is the most complex, delicate, and unstable 
 form of government known. Disregarding all these 
 admonitions, the American people have adopted both 
 these political systems. Here is exhibited in its pur- 
 est form, compatible with the representative system, a 
 democracy, a government by the people, self-govern- 
 ment. Here also is exhibited a Federal Union in its 
 most perfect form and upon a vast magnitude. How 
 has it come to pass that we have made democracy a 
 success, a Federal system a success — liberty, equality, 
 fraternity, a success — with all the countless blessings 
 which have come to the people from these political 
 conditions ? What seed has been planted in these in- 
 stitutions which has brought forth such splendid fruit ? 
 What new principle in government has America dis- 
 covered which will explain her wonderful progress, 
 her unity, and her strength.? How has it happened 
 that the United States has emerged from every great 
 national crisis stronger, wiser, and more confident ? 
 What is the cohesive force in these institutions which 
 has enabled them to withstand the shock of civil 
 war, the freeing of four millions of slaves, a disputed 
 Presidential succession, and every peril to which the 
 country has been exposed ? To what unifying influ- 
 ence in our form of government can be ascribed the 
 power of assimilating and moulding into one homo- 
 
 9 
 
130 ADDRESSES 
 
 geneous people the multitude of new-comers from 
 other lands, of different nationalities and traditions, 
 who have made America their home ? Why is it, 
 if by chance they revisit their native land, they return 
 to America with increased love for this country, and 
 that they and their descendants are not excelled in 
 devotion and loyalty to American institutions ? How 
 has it come to pass that American diplomacy is con- 
 quering the world, and that to-day the Great Powers 
 are looking to us as the only hope of peace ? 
 
 During the past century the map of Europe has 
 changed. Dynasties have been overthrown; new 
 governments have arisen. There is no European 
 country at the present time in which there does not 
 exist an organized party in favor of a change in the 
 form of the government or in some of its organic 
 features. What is the potent cause which has main- 
 tained unimpaired American institutions, and which 
 has instilled into every American his absolute, un- 
 questioned faith in the government of his country 
 and in her future high destiny ? Whence has sprung 
 that supreme trust in the American people which 
 sustained Washington through the doubt and gloom 
 of the Revolution, and which upheld and comforted 
 Lincoln during the darkest hours of the Civil War ? 
 
 From the Declaration of Independence down to a 
 comparatively recent period, and especially at every 
 critical stage in our progress, the world has been 
 
THE PROBLEM OF GOVERNMENT 131 
 
 filled with prophets of evil omen. De Tocqueville, 
 seventy years ago, foretold our decline, if not our 
 downfall, through the tyranny of the majority. 
 Macaulay was filled with the most gloomy forebod- 
 ings respecting the future of American institutions, 
 although he was good enough to postpone the time 
 when his New Zealander should sketch the ruins 
 of the Capitol at Washington. " I have long been 
 convinced," he said, " that institutions purely demo- 
 cratic must, sooner or later, destroy liberty or civili- 
 zation, or both." " Your fate I believe to be certain, 
 though it is deferred by a physical cause." "Your 
 Constitution is all sail and no anchor." "When a 
 society has entered on this downward progress, 
 either civilization or liberty must perish. Either 
 some Caesar or Napoleon will seize the reins of 
 government with a strong hand, or your republic 
 will be as fearfully plundered and laid waste by 
 barbarians in the twentieth century as the Roman 
 Empire was in the fifth, with this difference, that 
 the Huns and Vandals who ravaged the Roman 
 Empire came from without, and that your Huns 
 and Vandals will have been engendered within your 
 own country by your own institutions." The his- 
 torian Freeman prophesied the exchange of ambas- 
 sadors between the North and the South before the 
 year 1869. The publicists and statesmen of Europe 
 foretold the dissolution of the Federal Union before 
 
132 ADDRESSES 
 
 the Civil War. They were also convinced beyond 
 doubt that the North would never succeed in that 
 war, and, after the close, they were equally certain 
 that the Union was irretrievably wrecked, and that 
 the South would come back as conquered provinces 
 under some new and stronger form of government. 
 
 Why has our experience refuted these predic- 
 tions ? Why have all the prophets proved to be 
 false prophets ? The circumstances surrounding the 
 settlement of our forefathers in this country do not 
 afford an adequate explanation. These results can- 
 not be accounted for by the prodigality of nature 
 as exhibited in land and forest and mine, nor by 
 our freedom from powerful and aggressive surround- 
 ing nations. Nor can they be accounted for by 
 reason of race temperament or character. Nor can 
 they be explained upon the theory that our fore- 
 fathers brought with them the town meeting, the 
 Magna Charta, and the Bill of Rights, and left 
 behind them the mediaeval institutions of Europe. 
 While these auspicious conditions may have exerted 
 a powerful influence, they present at the most only a 
 partial explanation of our remarkable history. The 
 true explanation, the real solution of the problem, 
 must be sought for in some more comprehensive and 
 fundamental cause. 
 
 America's solution of the great problem of govern- 
 ment, the explanation of this American phenomenon, 
 
THE PROBLEM OF GOVERNMENT 133 
 
 IS found in the plain wisdom of the plain people. It 
 has its origin in the mind and conscience of the great 
 body of citizens, in their honesty, intelligence, and 
 fair-mindedness, in their practical judgment and sense 
 of what is proper and right. It is based upon the 
 utilization of the common sense of the average man, 
 or the collective common sense of the multitude of 
 average men, as the active, controlling force in 
 government. It is, in its essence, simply the town- 
 meeting principle of government extended over a 
 vast empire. In this common-sense principle of 
 government, which is merely the expression of the 
 plain wisdom of the plain people, lies the key, the 
 only key, which unlocks the remarkable develop- 
 ment and achievements of American civilization 
 during the past century. 
 
 There are certain inborn qualities which are the 
 common heritage of mankind. The human race is 
 endowed by nature with common sense, natural 
 understanding, practical judgment, a sense of what 
 is just and right. These qualities are distinct from 
 the endowments of genius or the acquisitions of 
 learning. They are unaffected by logical abstrac- 
 tions or the imagination. They are unaided by 
 any art, method, or system of rules. They are de- 
 veloped and strengthened by the common every-day 
 experiences in life and in business. It is these quali- 
 ties of common wisdom which enter into, direct, and 
 
134 ADDRESSES 
 
 control the judgment of the average man and the 
 collective judgment of the mass of average men. 
 In the sphere of government, these qualities are 
 further aided in their exercise by local self-govern- 
 ment, by free discussion, and by a system of pri- 
 mary education. 
 
 The great truths of the Declaration — " That all 
 men are created equal, that they are endowed by 
 their Creator with certain unalienable rights, that 
 among these are life, liberty, and the pursuit of 
 happiness. That to secure these rights, governments 
 are instituted among men, deriving their just powers 
 from the consent of the governed " — appeal to these 
 natural qualities in man. The great principles of 
 peace, humanity, charity, the common brotherhood 
 of man, appeal to the same inborn qualities. 
 
 Hitherto governments have suppressed these nat- 
 ural qualities in mankind. The practical wisdom 
 and good sense of the average citizen, or the mass 
 of average citizens, have never been recognized as the 
 active controlling force in the State. Governments 
 have hitherto proceeded on the theory that it was 
 necessary to have a governing class who were spe- 
 cially qualified, by reason of superior knowledge and 
 experience, to manage public affairs. The result has 
 been that society has almost universally accepted 
 some form of autocratic or class government — the 
 rule of a king or of an aristocracy — as the lesser 
 
THE PROBLEM OF GOVERNMENT 135 
 
 evil. The ability of the people to govern them- 
 selves was denied. It was not believed that any 
 such governing faculty was born in man. No con- 
 fidence was placed in the common sense of the 
 great body of citizens as the ruling power. Liberty 
 and self-government were denied mankind because 
 it was thought that these privileges were subver- 
 sive of civil order. 
 
 For the first time in the history of the world, 
 the United States has availed itself of the plain 
 wisdom of the plain people, of the sense and con- 
 science of the average man, or, more properly speak- 
 ing, of the mass of average men, as the ruling force 
 in the State. Never before has government relied 
 upon these natural qualities as the ultimate and 
 the controlling power in public affairs. This is 
 America's discovery. This is her gift to humanity 
 and to civilization. She has made known man's 
 capacity for self-government, and this is her crown- 
 ing glory. 
 
 It is true that there have been some previous 
 examples of popular governments, notably in ancient 
 Greece and in mediaeval Italy ; but these attempts at 
 self-government were made under adverse circum- 
 stances and upon a small scale. This American 
 theory has never before been fully tried under favor- 
 able surroundings, and upon a national scale. Here 
 the soil was well prepared. " God had sifted three 
 
136 ADDRESSES 
 
 kingdoms to find the wheat for this planting." The 
 country was new, of vast extent, and of unsurpassed 
 natural resources. The wide ocean separated this 
 continent from the powerful nations of the Old 
 World. Our fathers had brought with them local 
 self-government and the fundamental principles of 
 personal liberty. It thus appears that, notwithstand- 
 ing these former examples of popular government, 
 the United States for the first time has really 
 afforded the proper opportunity for the common 
 people to test their ability to govern themselves, 
 and that we were the first to discover and utilize 
 this common-sense principle of government, founded 
 upon the judgment of the mass of citizens, and to 
 make it the active and controlling governing power. 
 
 In the progress of American institutions, this new 
 governing force, resting on the general sense of the 
 body of citizens, has become all-powerful — the abso- 
 lute master of the State. It has supplanted the true 
 function of the representative system, and dominates 
 the whole machinery of government. Executives 
 and legislatures bow before this voice of the people. 
 It fears nothing. It seeks only to do what is proper 
 and right. We call it public opinion. It began to 
 assert itself at an early period. John Adams relates 
 that for some time the vote of the Convention was 
 constantly against the passage of the Declaration. 
 *' For many days," he says, " the majority depended 
 
THE PROBLEM OF GOVERNMENT 137 
 
 on Mr. Hewes of North Carolina. While a mem- 
 ber one day was reading documents to prove that 
 public opinion was in favor of the measure, Mr. 
 Hewes suddenly started upright, and lifting up both 
 hands to heaven, as if in a trance, cried out: * It is 
 done, and I will abide by it ! ' " Our recent history 
 affords startling illustrations of its irresistible power. 
 In other countries, like England and France, where 
 liberal institutions exist, the people are satisfied with 
 electing their agents to carry on the government. 
 This is not the case in the United States. Here 
 public officers are and remain the servants of the 
 people, to execute at all times their sovereign will. 
 
 This striking phase in the development of our 
 institutions has been pointed out recently by Bryce, 
 in his "American Commonwealth." Speaking of 
 public opinion, he says: 
 
 " It stands above parties, being cooler and larger 
 minded than they are ; it awes party leaders, and 
 holds in check party organizations. No one ventures 
 openly to oppose it. It determines the duration 
 and the character of national policy. ... It is the 
 central point of the whole American policy. . . . 
 It may sometimes be long in speaking, but when 
 it speaks, it speaks with a weight which the wisest 
 governing class cannot claim. ... It grows up, not 
 in Congress, not in State legislatures, not in those 
 great conventions which frame platforms and choose 
 
138 ADDRESSES 
 
 candidates, but at large among the people. It is 
 expressed in voices everywhere. It rules as a per- 
 vading, impalpable power, like the ether which 
 passes through all things. It binds all the parts 
 of the complicated system together, and gives them 
 whatever unity of aim and action they possess." 
 "Towering over Presidents and State governors, 
 over Congress and State legislatures, over conven- 
 tions and the vast machinery of party, public 
 opinion stands out in the United States as the 
 great source of power, the master of servants who 
 tremble before it." 
 
 Our whole history illustrates the soundness of this 
 new governing force; in other words, that the prac- 
 tical judgment of the mass of citizens has been wise 
 and right. The Declaration of Independence was no 
 sudden nor hasty act. The people had petitioned, 
 and petitioned in vain, for the redress of grievances. 
 They were driven to independence only after re- 
 peated acts of oppression, and as a last resort. And 
 with independence the people saw the practical neces- 
 sity of a closer union of the Colonies. Independence 
 and union were always associated together in the 
 popular mind. When the Articles of Confederation 
 proved too weak for practical governing purposes, 
 a stronger union was entered into under the Federal 
 Constitution. Unfortunately, there grew up under 
 this Constitution two opposing, irreconcilable social 
 
THE PROBLEM OF GOVERNMENT 139 
 
 systems. Seeking to avoid the inevitable conflict 
 between freedom and slavery, the people for forty 
 years tried compromise after compromise. But when 
 the hour of battle came they rose in their supreme 
 power and declared : " We join ourselves to no 
 party that does not carry the flag and keep step to 
 the music of the Union." The theoretical argument 
 of State sovereignty, founded upon the nature of 
 a Federal compact, the practical judgment of the 
 people rejected. The so-called invincible logic of 
 Calhoun made little impression on the popular 
 mind. The plain sense of the plain people revolted 
 against the idea of a dismemberment of the Union. 
 Here was a land designed by nature for the occu- 
 pancy of one people, whose great waterways, moun- 
 tains, and plains must not be divided between two 
 or more independent nations. One people had sub- 
 dued this wilderness. One people had fought the 
 War of the Revolution, and established the Consti- 
 tution, — a people made one by a common lineage, a 
 common language, a common history, common strug- 
 gles, common sacrifices, common institutions, and a 
 common religion. There was no answer in the minds 
 of the people to these practical arguments, and the 
 Civil War was carried on until the Union was re- 
 stored. To the success of that war it became in- 
 dispensable to clothe the President with almost 
 autocratic powers ; and the good sense of the people 
 
140 ADDRESSES 
 
 responded to this situation by declaring that the 
 Federal Constitution must be made elastic enough 
 to save the country. 
 
 The weakest spot in a Federal system of govern- 
 ment, outside of the doctrine of State sovereignty, 
 is the election of the Chief Executive. There was 
 no constitutional way for meeting the disputed Presi- 
 dential election of 1876; but the people insisted 
 that this crisis must be met in a peaceful way, even 
 though means were provided outside the boundaries 
 of the organic law. Disputed successions have 
 caused numerous long and bloody wars in the mon- 
 archies of the Old World. The approval of the 
 Electoral Commission and the endorsement of its 
 decision is one of the strongest illustrations of the 
 practical wisdom of the people as the ruling force 
 in government. 
 
 In the events preceding the Spanish War, the 
 popular mind, although wrought up to the highest 
 tension, acted with the utmost calmness, and war 
 was not declared until it was demanded by the dic- 
 tates of humanity as well as national honor. 
 
 While the general sense of the people has always 
 been right with respect to broad questions of public 
 policy, it may be claimed that this is hardly true con- 
 cerning comparatively minor issues. I maintain, how- 
 ever, that on questions like the tariff, the currency, 
 civil service reform, and all questions which relate to 
 
THE PROBLEM OF GOVERNMENT 141 
 
 the administration of government, the judgment of 
 the masses has been equally wise. It may take a 
 longer discussion of these more difficult and com- 
 plex subjects before the popular mind reaches a full 
 and intelligent understanding of them, and there 
 may be temporary setbacks; but our experience in 
 every case shows that in the end the decision of 
 the people has been right. 
 
 The same common sense which has characterized 
 the rule of the people has also guided our great states- 
 men in the construction of the machinery of govern- 
 ment, in the interpretation of the Constitution, in our 
 foreign relations, and in the critical periods of the 
 nation's history. 
 
 The framers of the Constitution were men of strong 
 common sense and practical wisdom. They were 
 neither dreamers nor theorists nor revolutionists. 
 They sought to solve the great problem of the hour 
 by rational means. The logic of the situation de- 
 manded some kind of Federal Union. This was the 
 only form of government adapted to thirteen inde- 
 pendent States. They set about to form such a polit- 
 ical system by remedying what experience had taught 
 them were the defects in the old Articles of Confed- 
 eration. They cured these evils by making the new 
 Constitution bear directly upon the people instead of 
 upon the States, by granting certain general powers 
 to Congress, such as the regulation of commerce, by 
 
142 ADDRESSES 
 
 the establishment of the Federal Judiciary, and by 
 other changes. They also reconciled by compromise 
 or elimination conflicting interests and jealousies. So 
 successful were their efforts that Gladstone has de- 
 clared that *' The American Constitution is the most 
 wonderful work ever struck off at a given time by the 
 brain and purpose of man." 
 
 In the construction of the Constitution the Supreme 
 Court have ever been guided by practical wisdom 
 rather than abstract theory. They have interpreted 
 that instrument to meet the wants and necessities of 
 a great and progressive people, who were extending 
 over a new continent, and whose social needs and 
 national aspirations were constantly changing. They 
 have applied to its provisions the great doctrine of 
 reasonableness. They have placed a liberal construc- 
 tion upon its general powers when a national exi- 
 gency demanded it. When it became absolutely vital 
 to the safety of the Republic, during the Civil War, 
 to issue paper money as a legal tender, the court 
 sustained the constitutionality of the act, as coming 
 within the implied powers of the Constitution, al- 
 though the direct grant of such a power in the body 
 of the instrument had been expressly excluded by the 
 framers. Listen to the common-sense view of Mr. 
 Justice Miller on this subject: 
 
 " The coin in the country, if it could all have been 
 placed within the control of the Secretary of the 
 
THE PROBLEM OF GOVERNMENT 143 
 
 Treasury, would not have made a circulation sufficient 
 to answer army purchases and army payments, to say 
 nothing of the ordinary business of the country. A 
 general collapse of credit, of payment, and of business 
 seemed inevitable, in which faith in the ability of the 
 government would have been destroyed, the rebellion 
 would have triumphed, the States would have been 
 left divided, and the people impoverished. The 
 National Government would have perished, and, with 
 it, the Constitution which we are now called upon to 
 construe with such nice and critical accuracy." 
 
 The history of American diplomacy affords a most 
 striking example of this common-sense principle of 
 government and of its power and effectiveness. The 
 secrecy, subtlety, and reserve which characterize the 
 diplomacy of the Old World have been abandoned. 
 Our intercourse with foreign nations is marked by 
 openness, directness, simplicity, while observant of all 
 customary proprieties and courtesies. It has been 
 distinguished by an honesty of purpose and a high 
 moral tone. It has also been pacific, humane, and con- 
 ducted with due recognition of the rights of others. 
 Its triumphs of the past few years in the far East and 
 elsewhere, and notably in the recent action of President 
 Roosevelt, have placed the United States in the very 
 front rank among the Great Powers of the World. 
 America has become the peacemaker of nations. 
 
 There are also numerous instances of the exercise 
 
144 ADDRESSES 
 
 of the same qualities of plain wisdom and good sense 
 by our great leaders in critical periods of the nation's 
 history. What more sublime act of practical wisdom 
 has the world witnessed than the conduct of Wash- 
 ington at the close of the Revolutionary War and 
 at the head of a victorious army? Casting aside 
 personal ambition and the machinations of designing 
 men, he journeyed to Annapolis, and, entering the 
 Hall of Congress, took the seat assigned him. The 
 presiding officer then declared that " the United States 
 in Congress assembled were prepared to receive his 
 communication." Rising from his seat with a maj- 
 esty and dignity beyond that of any crowned king, 
 Washington, in his most impressive manner, said: 
 
 " The great events on which my resignation de- 
 pended having at length taken place, I now have the 
 honor of offering my sincere congratulations to Con- 
 gress, and of presenting myself before them, to sur- 
 render into their hands the trust committed to me, 
 and to claim the indulgence of retiring from the 
 service of my country." 
 
 Turn to another instance of the highest practical 
 wisdom by the author of the Declaration of Independ- 
 ence. Jefferson had grave doubts of the power of 
 the United States, under the Constitution, to acquire 
 the vast territory covered by the Louisiana Purchase. 
 "If, however," he wrote, "our friends shall think dif- 
 ferently, certainly I shall acquiesce with satisfaction, 
 
THE PROBLEM OF GOVERNMENT 145 
 
 confident that the good sense of our country will cor- 
 rect the evil of construction when it shall produce ill 
 effect." Waiving his scruples as to the constitution- 
 ality of the measure, trusting to the good sense of the 
 people to correct the evil, if it should prove to be 
 such, and in obedience to the popular mandate, Jef- 
 ferson took advantage of this golden opportunity, 
 which, in the words of Grover Cleveland, "doubled 
 the area of the young American nation, and dedicated 
 a new and wide domain to American progress and 
 achievement." 
 
 In the construction of the Constitution, John 
 Marsliall disdained all theories and abstractions. 
 He cared nothing for the doctrine that a Federal 
 Union is a mere league of sovereign States, that 
 theoretically there can be no such thing as a sov- 
 ereign over sovereigns, that theoretically a sovereign 
 State may annul any act of the central power and 
 withdraw from the voluntary compact whenever it 
 deems it expedient so to do. On the contrary, he 
 declared that the Constitution must be made to 
 fulfil the great practical purposes for which it was 
 designed. The Constitution was ordained by the 
 people as the paramount law of the land, supreme 
 over Congress and State legislatures. It organized 
 a government complete within itself. It established 
 a perpetual Union, and safeguarded the rights of 
 the people. It was not "a magnificent structure," 
 
 10 
 
148 ADDRESSES 
 
 warranted by the Constitution upon military neces- 
 sity, I invoke the considerate judgment of mankind 
 and the gracious favor of Almighty God." It was 
 Lincoln's practical judgment in the supreme crisis 
 of the nation's history which maintained the Union 
 and abolished slavery. 
 
 It has sometimes happened that the judgment of 
 the people has been wiser than the judgment of their 
 great leaders. Recall the movement by prominent 
 members of his own party to force Lincoln to with- 
 draw or resign, after his renomination in June, 1864, 
 and how, in this dark hour of the Republic, the 
 plain people, rising in their might, said : " No, this 
 is our President. He sprang from our loins, he is 
 confronted with the most difficult task which ever 
 fell to mortal man; but if any one can save the 
 Union and end this dreadful war, he can ; we trust 
 him, we believe in him, we love him." The people 
 then saw what the whole world soon acknowledged, 
 — that Abraham Lincoln was the master spirit; that 
 his grasp of the situation and knowledge of men 
 were unexcelled; that beneath that tall, gaunt frame, 
 that unconventionalism, that homeliness of manner, 
 tinged at all times with a weird melancholy, if not 
 despair, there lay hidden the most gentle, the most 
 heroic, the grandest soul in American history. 
 
 They tell us that Americans are becoming fatalists ; 
 that this is manifested in our belief in the "divine 
 
THE PROBLEM OF GOVERNMENT 149 
 
 mission of the Republic," in our faith that God has 
 chosen this nation to work out, under His protecting 
 hand and for all humanity, a higher type of civiliza- 
 tion, in the conviction that the Federal Constitution 
 is the very Ark of the Covenant "whereon no man 
 may lay rash hands," and in our intense confidence 
 in the soundness of our institutions and the future 
 (rf our country. Be it so ! We do not wonder at the 
 charge. The success of this experiment in govern- 
 ment is the mar\-el of history. This rule of the 
 people has brought forth a political and social 
 organization of which the world never dreamed. 
 Here are exhibited political institutions which have 
 shown a stability and at the same time an elasticity 
 beyond those of any other form of government 
 
 Here is a society which possesses all the elements 
 of the highest civilization and progress. Look for 
 a moment at this country to-day from an educa- 
 tional and religious point of view, as seen by two 
 pre-eminent scholars and thinkers, one an English- 
 man and the other an American. James Bryce says: 
 " There has been within these last thirty-five years a 
 development of the higher education in the United 
 States perhaps without a parallel in the world." 
 
 Charles W. Eliot says : " The successful establish- 
 ment and support of religious institutions — churches, 
 seminaries, and religious charities — upon a purely 
 voluntary system, is an unprecedented achievement of 
 
148 ADDRESSES 
 
 warranted by the Constitution upon military neces- 
 sity, I invoke the considerate judgment of mankind 
 and the gracious favor of Almighty God." It was 
 Lincoln's practical judgment in the supreme crisis 
 of the nation's history which maintained the Union 
 and abolished slavery. 
 
 It has sometimes happened that the judgment of 
 the people has been wiser than the judgment of their 
 great leaders. Recall the movement by prominent 
 members of his own party to force Lincoln to with- 
 draw or resign, after his renomination in June, 1864, 
 and how, in this dark hour of the Republic, the 
 plain people, rising in their might, said : " No, this 
 is our President. He sprang from our loins, he is 
 confronted with the most difficult task which ever 
 fell to mortal man; but if any one can save the 
 Union and end this dreadful war, he can; we trust 
 him, we believe in him, we love him." The people 
 then saw what the whole world soon acknowledged, 
 — that Abraham Lincoln was the master spirit; that 
 his grasp of the situation and knowledge of men 
 were unexcelled ; that beneath that tall, gaunt frame, 
 that unconventionalism, that homeliness of manner, 
 tinged at all times with a weird melancholy, if not 
 despair, there lay hidden the most gentle, the most 
 heroic, the grandest soul in American history. 
 
 They tell us that Americans are becoming fatalists ; 
 that this is manifested in our belief in the " divine 
 
THE PROBLEM OF GOVERNMENT 149 
 
 mission of the Republic," in our faith that God has 
 chosen this nation to work out, under His protecting 
 hand and for all humanity, a higher type of civiliza- 
 tion, in the conviction that the Federal Constitution 
 is the very Ark of the Covenant *' whereon no man 
 may lay rash hands," and in our intense confidence 
 in the soundness of our institutions and the future 
 of our country. Be it so ! We do not wonder at the 
 charge. The success of this experiment in govern- 
 ment is the marvel of history. This rule of the 
 people has brought forth a political and social 
 organization of which the world never dreamed. 
 Here are exhibited political institutions which have 
 shown a stability and at the same time an elasticity 
 beyond those of any other form of government. 
 
 Here is a society which possesses all the elements 
 of the highest civilization and progress. Look for 
 a moment at this country to-day from an educa- 
 tional and religious point of view, as seen by two 
 pre-eminent scholars and thinkers, one an English- 
 man and the other an American. James Bryce says : 
 " There has been within these last thirty-five years a 
 development of the higher education in the United 
 States perhaps without a parallel in the world." 
 
 Charles W. Eliot says : " The successful establish- 
 ment and support of religious institutions — churches, 
 seminaries, and religious charities — upon a purely 
 voluntary system, is an unprecedented achievement of 
 
150 ADDRESSES 
 
 the American democracy. ... A similar exhibition 
 of diffused mental and moral energy has accompanied 
 the establishment and the development of a system 
 of higher instruction in the United States, with no 
 inheritance of monastic endowments, and no gifts 
 from royal or ecclesiastical personages disposing of 
 great resources derived from the State, and with but 
 scanty help from the public purse. . . . The endow- 
 ment of institutions of education, including libraries 
 and museums, by private persons in the United 
 States is a phenomenon without precedent or par- 
 allel, and is a legitimate effect of democratic insti- 
 tutions. Under a tyranny — were it that of a Marcus 
 Aurelius — or an oligarchy — were it as enlightened 
 as that which now rules Germany — such a phenom- 
 enon would be simply impossible." 
 
 But the most remarkable feature of this American 
 democracy is its mighty reserve power. It is " the 
 people's government, made for the people, made by the 
 people, and answerable to the people." Each citizen 
 is a ruler of the Republic, a participator in its great- 
 ness and its glory, its joys and its sorrows. He knows 
 that its fame and power rest on his own exertions. 
 He realizes that he is a citizen of a vast country 
 which stretches across a continent. He recognizes 
 the strength and excellence of popular government, 
 because he is one of the people. He makes a rigid 
 Constitution elastic whenever it obstructs the progress 
 
THE PROBLEM OF GOVERNMENT 151 
 
 or endangers the safety of the Republic. He feels the 
 sense of personal responsibility which attaches to his 
 own work. He is law-abiding, because he makes the 
 laws and recognizes the necessity of obeying them. 
 He believes in the fullest publicity, a free press, free 
 inquiry, and a full discussion. He believes in equality 
 and a fair field for all. He has faith in the *' cura- 
 tive power of freedom." He is conservative in his 
 fundamental beliefs. He has faith in God and in 
 mankind. He has the highest regard for public obli- 
 gations and the financial standing of the nation. He 
 believes in a state system of primary education. Being 
 fair-minded and temperate, he will not consciously leg- 
 islate against the rich or the poor. Possessing politi- 
 cal power and civil rights, he has nothing to fight for, 
 nothing to rebel against. He is self-confident, self- 
 reliant, and cool-headed. He has the ** independence 
 of conscious strength." He is just, and regardful of 
 the equal rights of others. He is opposed to war. 
 He is magnanimous in victory. He is a believer in 
 liberty, humanity, and peace and good-will among the 
 nations of the earth. He is no iconoclast ; he believes 
 in building up, and not in tearing down. He cares 
 little for tendencies, theories, or abstractions. He will 
 take a little less individualism or a little more pater- 
 nalism, a little less protection or a little more free 
 trade, if at any time he thinks it best meets the public 
 wants. He has a large reserve fund of practical wis- 
 
152 ADDRESSES 
 
 dom. He addresses himself to the questions of the 
 hour. The storms of party passion, the waves of cor- 
 ruption, may beat about him, but he is always con- 
 scious of his own supreme power, and that he is the 
 master of the situation. He fears neither discussion 
 nor agitation, socialism nor imperialism. He is him- 
 self the dictator, the only Caesar whom he recognizes. 
 He sits upon the throne. He both reigns and gov- 
 erns. He is the State. He stands for the business 
 judgment of the people as the controlling factor in 
 government. He is the embodiment of common sense 
 brought to bear as the governing force in the State. 
 Herein lies the explanation of the all-subduing power 
 and efficiency of this new force in government. This 
 is the reason why this country has been able to main- 
 tain a democratic form of government and a Federd 
 Union for more than a century, to secure liberty and 
 equality for all men, to meet and overcome every na- 
 tional crisis, and to advance step by step to its pres- 
 ent position of power and influence among the great 
 nations of history. 
 
 Fellow citizens, I believe in this celebration. I 
 believe with John Adams that this anniversary should 
 be forever dedicated to patriotic rejoicings, and where 
 more fittingly than in this temple consecrated for so 
 many generations to human liberty.? I believe that 
 on this day every American should bend the knee in 
 devout thankfulness and gratitude to Almighty God 
 
THE PROBLEM OF GOVERNMENT 153 
 
 that his lot is cast in this favored land and under 
 the mild sway of these institutions. Fortunate, pros- 
 perous, free America ! Look in upon the past pages 
 of history. Look out upon the present face of this 
 star, and where will you find such a picture of human 
 society ? Cross the Atlantic to the nations of Europe ; 
 cross the Pacific to the nations of the Orient ; turn to 
 the fairest picture of man in the ancient world, when 
 Rome in the age of the Antonines "comprehended 
 the fairest part of the earth and the most civilized 
 portion of mankind " : contrast these pictures of so- 
 ciety with the comfort, the well-being, the happiness 
 of the people, which America presents at this hour. 
 
 Our political horizon may not be free from clouds. 
 There is no such thing as perfection on earth. Man 
 is an imperfect being, and governments reflect that 
 imperfection. Everything in this world is relative. 
 We can only judge by comparison. We have our 
 problems, but what are they in comparison with 
 those which to-day confront England, France, Ger- 
 many, Italy, Austria, Russia, and the nations of the 
 far East ? 
 
 But our problems, it may be said, are serious, 
 and how are they to be solved ? My answer is : 
 They are to be solved as the framers solved the prob- 
 lem of the Federal Constitution, as Lincoln solved the 
 problem of emancipation, as Theodore Roosevelt and 
 John Hay are solving the problems of diplomacy, as 
 
154 ADDRESSES 
 
 the people have solved all the great problems since the 
 Declaration of Independence — by unfettered discus- 
 sion, by looking at the question from all points of 
 view, by the reconciliation of jealousies and differ- 
 ences, by mutual concession, by compromises, by fair- 
 ness and honesty of purpose, by a recognition of mutual 
 rights, by forbearance, human sympathy, and charity, 
 and by ever bearing in mind that government has its 
 limitations, that God did not create men of equal ca- 
 pacity and energy, and that nature has decreed that 
 wealth and labor are inseparable. 
 
 Fellow citizens, this American Republic is marching 
 to the conquest of the world. Every governmental 
 change in Etirope is a change in the direction of 
 American institutions. Monarchy, class-rule, the tra- 
 ditions of the past are crumbling, and States and 
 peoples are drifting towards this American ideal. 
 The benign rays from this new star are spreading 
 hope and rejoicing to all mankind. It is to the West 
 the world is now looking. It is from the West the 
 world is now receiving light. This is the American 
 age. We have discovered the best and the strongest 
 governing force known to man. It is founded upon 
 human nature. It is based on the primal elements of 
 our being. It springs from God Himself. It pleads 
 for the down-trodden and oppressed of all nations, for 
 the abolition of caste and privilege and the mediaeval 
 traditions which have held mankind in chains. It 
 
THE PROBLEM OF GOVERNMENT 155 
 
 pleads for justice, for charity, for righteousness. This 
 democracy of Washington and Lincoln is carved from 
 the solid granite, and inscribed upon it in letters 
 of gold are the eternal truths : " Peace, Humanity, 
 Liberty." 
 
 I have faith in the perpetuity of American institu- 
 tions; but if in the providence of God it shall ever 
 be our destiny to share the fate of other nations, if 
 it shall ever be found that this government by the 
 people is mortal, if it shall ever come to pass in 
 the far-off time that some future Gibbon shall write 
 the history of The Decline and Fall of the American 
 Republic, — our greatness and our glory will still 
 survive, since we have accomplished a work more 
 sublime than the intellectual beauty of classic Greece, 
 more enduring than the Civil Law of imperial Rome, 
 and grander than all the triumphs of civilization in 
 the modern world; for we have given to humanity 
 and the coming ages the immortal principle that 
 man, made in the image of his Creator, is capable 
 of self-government. 
 
H DAY T7SP 
 
 LOAN DEPT. 
 
 General Library 
 
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 THE UNIVERSITY OF CALIFORNIA UBRARY